JPBlog

Senator Dodd has put a hold on the foreign intelligence surveillance bill that would retroactively immunize the telecoms for cooperating with the Bush administration in illegally wiretapping Americans' communications. If the hold is disregarded by the Democratic leadership, he is willing to filibuster the bill.

That's impressive, a Democrat that not only cares about the U.S. Constitution, but is willing to fight to preserve it. Clinton, Obama and others: Where are you? Here's a presidential candidate that is taking some real action, not just talking.

As a lawyer who has been involved with the criminal law for 27 years (defense), I have always been interested in what students are taught about the Constitution and how it affects their attitudes towards civil liberties. A recent survey by the Knight Foundation reported in the Clarion-Ledger today found that "[i]n 2006, high school students tend to be more knowledgeable about the First Amendment, and less supportive of the freedoms it promises." In other words, merely teaching kids about the First Amendment won't necessarily create a love of freedom in them. A thorough grounding in the historical background of the Bill of Rights might go a long way towards inculcating such a love of freedom, but if the zeitgeist is blowing the other way, it is doubtful that any such knowledge will make much difference to the average American.

Americans are particularly prone to regard themselves as unique and exempt from the consequences that ordinarily flow from their actions or their inaction, which is why they regard the study of history either as a form of entertainment or simply a waste of time. Historical examples of this myopia are easy to find, but such examples are wasted on a people that don't believe that the past is a guide to the present. Thus the 1990s saw such ahistorical notions as Fukiyama's End of History and the talk about the "new economy" that purported to refute the second law of thermodynamics. That foolishness has already been forgotten and similar snake oil is being sold today, often by the same people and institutions.

Occasionally, during moments of self-questioning, I allow the possibility that perhaps the conservatives are right—that freedom is a privilege reserved for the "better sort of people," who can use their freedom responsibly—but then I remember that the elite idea of "responsibility" has nearly always consisted exclusively of maintaining one's privileged social and economic position, irrespective of the general good. In fact, it is rare that elites do anything to further the general good that would threaten their power or wealth.

The conclusion, which is an historical one: We can appreciate liberty only by neglecting it and finally losing it.

And not a moment too soon.

New York Times: New Democratic Majority Throws Bush’s Judicial Nominations Into Uncertainty

I missed this. Olbermann administers Bush a stemwinder of a trashing over the torture bill. Lott, Cochran, Wicker, Pickering and Taylor: you guys are either stupid beyond all imagining or you are just a bunch of opportunists who don't give a damn about what this nation is supposed to stand for. What Olbermann said applies to you just as much as it does to Bush. Thompson, where you? You are recorded as having been absent at one of the most important votes in the history of this nation. Via Billmon

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Tags: torture, habeas corpus, Lott, Cochran, Wicker, Taylor, Thompson, Pickering, Civil Liberties

While on vacation, I read the news that a federal judge in Detroit had found that Bush did not have the authority under FISA or the U. S. Constitution to order warrantless eavesdropping on American citizens, but it was only today that I downloaded a copy of ACLU v. NSA from the district court site and read through it.

It seems clear to me that the Department of Justice came into this case believing that it could rely on the national security privilege to have the case dismissed. The technique had worked many times in the past, as Judge Taylor pointed out in her 44-page opinion. There was a big difference in this case, however: the administration had already admitted that it had spied on American citizens without authorization from the FISA court, and therefore the necessary elements of the plaintiffs' case were not state secrets. Having admitted that it engaged in the proscribed actions, it was forced to rely upon the president's "inherent" powers. As the court put it, "The Government appears to argue here that, pursuant to the penumbra of Constitutional language in Article II, and particularly because the President is designated Commander in Chief of the Army and Navy, he has been granted the inherent power to violate not only the laws of the Congress but the First and Fourth Amendments of the Constitution, itself."

When the issue is put that way, the obvious answer is "no," and, sure enough, the judge made short shrift of that argument:

We must first note that the Office of the Chief Executive has itself been created, with its powers, by the Constitution. There are no hereditary Kings in America and no powers not created by the Constitution. So all “inherent powers” must derive from that Constitution.

We have seen in Hamdi that the Fifth Amendment of the United States Constitution is fully applicable to the Executive branch’s actions and therefore it can only follow that the First and Fourth Amendments must be applicable as well. In the Youngstown case the same “inherent powers” argument was raised and the Court noted that the President had been created Commander in Chief of only the military, and not of all the people, even in time of war. Indeed, since Ex Parte Milligan, we have been taught that the “Constitution of the United States is a law for rulers and people, equally in war and in peace. . . .” Ex Parte Milligan, 71 U.S. (4 Wall.) 2, 120 (1866).Again, in Home Building & Loan Ass’n v. Blaisdell, we were taught that no emergency can create power.

FISA provides criminal penalties for violations. It now appears that Bush has, by admitting he eavesdropped on American citizens in violation of the act and further by announcing that he planned to continue doing so, confessed his criminality.

The question now is whether anything will be done about it.

In the wake of the arrests of would-be bombers in Britain and Pakistan, I wonder which additional constitutional rights the Bush administration will ask us to give up for the illusion of security? The Fourth Amendment is pretty-well shredded, the Fifth Amendment is under attack, and the Sixth Amendment right to a trial and confrontation of witnesses has already been declared null and void if the administration says you are a terrorist. We just have to wait and see.

The Miami-Dade school board has voted to ban a library book for young children that portrays life in Cuba a bit too idealistically for local tastes. The entire 24-book series for young children on other lands and other cultures of which the targeted book is a part will be removed from all the libraries in the system. The New York Times has the story.

So, instead of banning books like Huckleberry Finn that might be uncomplimentary of our own country, a book that says good things about an official enemy must now be kept away from our children. Granted, Cuba is not a bastion of free speech. The parent that objected to the book is a former political prisoner of Castro's communist regime, so he is undoubtedly sincere in his belief that the book dishonestly depicts Cuba in too favorable a light.

On the other hand, Cuba could not be anywhere as evil as our government and the Cuban exiles would have us believe. It is not Ceauşescu's Romania or Mao's China during the Cultural Revolution. Although it is difficult to assess the proportion of iniquity between them, as Dr. Johnson once remarked. it would be hard to say that Cuba is more oppressive than our close friend and ally, Saudi Arabia, or the murderous and rapacious Pinochet regime in Chile, bought and paid for by the U.S. The Cuban regime is "evil" only because it refuses to follow the neoliberal economic model that has long impoverished Central and South America for the benefit of U. S. corporations and the local elites that did their bidding.

While those among us with strongly-held beliefs may find it easy to convince themselves that heresy should be suppressed, history has again and again demonstrated that there is no better remedy for error than free and open competition in ideas—where everyone has the right to speak, write and publish, but no one has the right to be taken seriously.