You Gotta Fight for Your Rights

Illustrations by Juan Alvarado

“Difficile est saturam non scribere,” declared Juvenal, the great scourge of Roman corruption: “It is difficult not to write satire.”

The task has gotten no easier in today’s America, where political reality often seems like a joke cooked up by The Daily Show. Back in March, Justice Antonin Scalia, the intellectual Torquemada of Supreme Court conservatives, went to Cleveland to accept the local City Club’s “Citadel of Free Speech Award.” Demonstrating his love for the First Amendment, he banned broadcast media from his speech and refused to answer any questions from reporters.

But the previous day at John Carroll University, Scalia had let it all hang out. “The Constitution just sets minimums,” he declared with unnerving bluntness. “Most of the rights you enjoy go way beyond what the Constitution requires.”

The Bush administration evidently agrees, for ever since 9/11, it has been rolling back civil liberties that most of us take for granted. The most obvious example is 2001’s preposterously acronymed USA PATRIOT Act (as in Uniting and Strengthening America by Providing Appropriate Tools Required To Intercept and Obstruct Terrorism). This hastily thrown-together bill was passed 96-1 by a Senate whose members didn’t have time to scan its highly detailed 342 pages, let alone ponder its niceties. Flouting numerous principles of constitutional law, the act gave the federal government unprecedented new power to secretly round up suspects, hold them indefinitely without charge and snoop into people’s private lives (phone calls, credit-card bills, library records) by invoking national security in a special closed court. ‰

Bad as it was, the PATRIOT Act didn’t turn America into a police state. Howard Dean isn’t under house arrest; the Dixie Chicks haven’t been “disappeared”; I don’t write these words in fear that I’ll be arrested and put in a cell with Andrew Luster (“Whatever you do, don’t fall asleep!”). Of course, things would have been much worse had John Ashcroft been allowed to run as wild as he desired. Indeed, one fascinating detail to emerge from Steven Brill’s massive, breathtakingly anal After: How America Confronted the September 12 Era is that the attorney general’s initial proposals were so nakedly repressive that they shocked Republican congressmen and the White House, neither of which he’d bothered to consult as he laid waste to the Constitution. Even they thought he sounded like a witch-finder general.

If most Americans don’t yet view the PATRIOT Act as an assault on our common rights, this is largely because its worst provisions have barely touched them or the people they know. The real target has been Muslim noncitizens, hundreds of whom have been locked up at inordinate length — unnamed, uncharged and sometimes physically abused — for the sort of run-of-the-mill immigration violations that I myself have committed in other countries that somehow managed not to jail me with no legal recourse. And things are every bit as dire at the Guantánamo Bay base, where, virtually the whole world agrees, the U.S. government’s treatment of Taliban and al Qaeda prisoners (some of them children) is in clear violation of the Geneva Accords.

Although less disgraceful than World War II internment camps, such rough justice is so un-American as to be shocking. Yet it comes as little surprise that it has prompted scant outcry from elected officials, the mass media or the population at large. For starters, it takes courage to oppose restrictions on freedom after a traumatic terror attack, which is why vaunted liberal politicians quickly hopped aboard the PATRIOT Act juggernaut (“Hello, Senator Kerry.” “Hi, Hillary.”) and New York Times Constitution-hugger William Safire didn’t start bashing Ashcroft until almost two months after the legislative damage had been done. But there’s a deeper attitude at work here, too. As Michael Kinsley recently noted in Slate, Americans have become blasé about the liberty that some of those imprisoned noncitizens risked everything to get. “After 230 years,” he observed wryly, “we don’t need to love freedom in order to have it.” Most of us — as Kinsley admitted of himself with disarming honesty — don’t bother to do the homework about the state of our constitutional protections.

Well, it’s time to get started. For even as the White House fights hard to protect its own “right” not to tell us things that might prove embarrassing — it has blocked public release of the 800-page congressional report on 9/11 and refused to reveal the workings of Dick Cheney’s secret energy task force — our own freedoms are being whittled away.

Just consider:

• In March, the Senate passed the Partial-Birth Abortion Ban Act, which will be ratified by the House this summer and signed into law by President Bush. This marks another step in the slow dismantling of abortion rights, a process that could suddenly kick into high gear if Bush is able to appoint a new Supreme Court justice to replace Sandra Day O’Connor.

• On May 27, the Rehnquist court gutted the 1966 Miranda decision designed to assure suspects’ rights against self-incrimination. It accepted the Bush administration’s chilling argument that “police can hold people in custody and force them to talk, so long as their incriminating statements are not used to prosecute them.” In this particular case, the court ruled that police were justified in interrogating Oliverio Martinez, who’d just been shot five times, once in the face, and was shrieking for help even as they grilled him.