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.

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• 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.

• Meanwhile, the Bush administration is proceeding with Total Information Awareness (TIA, now renamed Terrorist Information Awareness), a program headed by former Reagan National Security Adviser John Poindexter, an admirable fellow who was convicted in 1990 of five counts of giving misleading and false statements to Congress. (The conviction was later overturned on a technicality.) Working under the aegis of the Pentagon, Poindexter’s Information Awareness Office intends to create a vast electronic dragnet that would (among other things) let the FBI, CIA and other intelligence groups reconstruct the movements of citizens through scrutiny of bank records, credit-card purchases, e-mail messages, phone calls, government forms, drug prescriptions, library checkouts and even the movies we buy on pay-per-view. Done in the name of anti-terrorism (what isn’t, these days?), TIA implies a level of Big Brotherish snooping that has even me listening for the black helicopters.

• And if all that weren’t enough, the White House is currently seeking to fill the lower courts with more Scalias and Clarence Thomases, right-wing judges who threaten to use the bench to push through the ultraconservative agenda the Republicans can’t muster the votes to pass into law.

Naturally, it’s tempting to blame our eroding liberties on a president who has joked more than once that, compared to democracy, “a dictatorship would be a whole lot easier.” (Any thoughts on that one, Dr. Freud?) But Bush’s lack of concern for our rights is hardly unique to him or his party. Just last month the California Assembly displayed an utter lack of concern for its constituents’ privacy in the face of corporate power: By an egregious 9-3 margin — which suggests a small fortune in campaign contributions — a Democrat-dominated committee killed a landmark bill that would require our written approval before our financial information could be sold to telemarketers and other businesses. Perhaps the committee members thought we enjoy all those mechanized, dinnertime phone calls.

This, too, was no aberration. Although Republicans are perceived as moralistic champions of the punitive crackdown — anti-gay, anti-abortion, anti-Hollywood, anti-anti-anti-anti — the Democrat Party is itself not exactly bursting with loyalty to the idea of personal freedom. Accustomed to defending government power against conservatives eager to privatize everything, it often loses sight of the state’s own capacity for tyranny.

This blindness was on display during the presidency of Bill Clinton, who, after executing the retarded Ricky Ray Rector as part of his 1992 election campaign, led an administration known for high-profile civil-liberties debacles — from the slaughter in Waco (which killed children in order to save them) to the jackbooted seizure of Elián González. Eager to prove himself tough on crime, Clinton was behind both the 1994 crime bill, which expanded application of the death penalty for over 50 crimes and forced communications companies to make their systems wiretap-ready, and the ghastly Anti-Terrorism and Effective Death Penalty Act of 1996, which limited habeas corpus petitions by the condemned. The latter bill led ACLU chief Ira Glasser to a crushing judgment: “When historians write the story of civil liberties in the 20th century, they will say that the Clinton administration adopted an agenda that has everything to do with weakening civil rights and nothing to do with combating terrorism.”

Before I’m inundated with angry letters, let me add that I’m not denying the difference between Clinton and Bush. Although disappointingly “moderate,” Clinton’s judicial appointments were less reactionary than his successor’s and his attitude toward government more committed to ordinary people. If Clinton expanded the state’s power over the individual, he also believed that the state has profound responsibilities to the individual: It is there to provide life-enhancing services. Not so Bush, who pursues a far cruder ideological agenda. Even as he exploits fear of terrorism to chip away at constitutional rights, he champions the inalienable rights of property (think of his horror at the “double” taxation of dividends) and mistrusts the idea of public services being provided by the government — which is why he apparently doesn’t mind bankrupting it with his budget.

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Still, the fact remains that both Republicans and Democrats have willingly backed policies that increase the government’s power at the expense of constitutional rights; they are part of the same continuum. That’s one reason why we’re seeing the collapse of the old categories of left and right. These days, the strongest voices for civil rights come from the anti-corporate left and the libertarian right — The Nation lies down with the Cato Institute. For the left, this is not without its awkwardness. It means recognizing that Bob Barr, the mouth-breathing Georgia congressman who was among the first to call for Clinton’s impeachment, has worked hard to diminish Ashcroft’s assaults on the Constitution; it means acknowledging that former House Majority Leader Dick Armey, a wacko Texas right-winger, led the fight against the Bush administration’s proposed Operation TIPS, a Stalin-worthy scheme designed to get millions of Americans reporting on each other to the authorities. (Now, that’s Neighborhood Watch.)

While it’s easy to scoff at the libertarian right, whose ideas about personal property make Bush look like Proudhon, its soaring confidence provides a valuable jolt of pro-rights energy in a period when too many progressives have fallen into a hysterical defeatism: They keep trying to paint a Hitler mustache on Bush or to inflate cheap attacks on Sean Penn into a new McCarthyism. It’s a measure of the left’s disarray that one senses in it a perverse nostalgia for the glory days when Der Führer was hanging communists on meat hooks or Tail-Gunner Joe was ruining the lives of supposed “Reds.” You know, back when the left occupied the high ground, morally superior and doomed.

Now, there’s no denying that these are hard times for our civil liberties, which are feebly defended by the centrist ruling elite (which complains about the loss of rights only after it has voted to remove them) and erratically covered by the mainstream media, which get riled up only by attacks on freedom of the press. Then again, we should never count on our liberties being defended by leaders of any kind. As the great socialist Eugene V. Debs famously declared, “I would not lead you into the promised land if I could, because if I could lead you in, someone else would lead you out.” The same logic holds true here: If we expect other people to protect our freedoms, then other people can also take them away.

To stop this from happening, one has to fight — even when it’s hard or boring. This means paying heed to the machinations of Washington (the Bush administration feeds on the public’s lack of attention), sending money to constitutional-watchdog groups such as the ACLU (which Kinsley aptly terms the canary down the mineshaft of constitutional rights) and, if necessary, carrying the battle to the streets, which is where most of our freedoms were won in the first place. Although the Bush administration encourages a pacifying sense of powerlessness (think of Dubya’s air of lordly disdain about the anti-war demonstrations), it is fearful of popular opinion — it hasn’t forgotten that the majority of voters were against him last time. When the shockingly tyrannical provisions of PATRIOT Act II were leaked to the wider world, the instant outcry helped stop things cold — even Bill O’Reilly got into the act. Once the public heard about Operation TIPS, which turned informing on one’s neighbor into a national ethic, the revulsion was so powerful that Congress wound up explicitly banning it. After the media finally began covering the FCC’s recent decision on media ownership, the reaction was so negative that the Senate Commerce Committee actually found the courage to roll it back (though the White House is likely to push for it once it falls off the radar).

Such triumphs may not sound big and glamorous, but that’s how freedom is usually gained — slowly, painfully, against the wishes of those in power, however benevolent they may think themselves. As Woodrow Wilson put it during the 1912 election campaign: “Liberty has never come from the government. Liberty has always come from the subjects of it. The history of liberty is a history of resistance.”

Wilson was absolutely right, which is why on Independence Day, 2003, it’s worth remembering that the constitutional freedoms we enjoy weren’t sent down from heaven or plucked off a tree. They were born of centuries of struggle by untold millions who fought and bled and died to make sure that our government can’t just walk into our bedroom or read our mail, can’t throw us in jail without proving to the world its right to hold us, can’t torture us into making confessions, can’t compel us to pray to a god we don’t believe in or prohibit us from saying whatever damn thing is on our mind. It’s our fault and our shame if we forget that such hard-won liberties can be taken away by the likes of Justice Scalia, that constitutional minimalist, who won’t simply feel self-righteous as he takes away our rights, but will do so behind closed doors where there are no TV cameras or reporters to ask unwanted questions about all we’ve lost.

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