Jewish World Review Jan. 19, 2006/ 19 Teves,
2006: A pivotal year in U.S. history
In 1976, Supreme Court Justice William O. Douglas, writing to the
Young Lawyers Section of the Washington State Bar Association,
reminded them that the Constitution and the Bill of Rights are "not
self-executing" and, as our history demonstrates, cannot be taken
for granted. "As nightfall does not come all at once, neither does
oppression. In both instances, there is a twilight when everything
remains seemingly unchanged. And it is in such twilight that we all
must be aware of change in the air however slight, lest we become
unwitting victims of the darkness." Such changes are now in the
Justice Douglas' warning was quoted in the Jan. 3 issue of Port
Folio Weekly, a community-based newspaper in Norfolk, covering
southeast Virginia. (The publication prints several syndicated
columns, including mine.) In his editorial, "Twilight in America,"
Port Folio editor Tom Robotham noted that by no means is the
darkness immediately at hand. "We continue," he wrote, "to enjoy
unprecedented freedoms in this country."
Therefore, it isn't surprising, he added, that despite widespread
news coverage of outraged reaction to the president's permitting
warrantless eavesdropping on American citizens within the United
States by the National Security Agency, "the vast majority of
Americans regarded the story as irrelevant to their own lives."
But at pivotal points in our history, starting, for instance, with
President John Adams' Alien and Sedition Acts of 1798 only
seven years after the Bill of Rights became part of our Constitution
that new set of laws made it a crime to use speech that
brought the president or Congress into "contempt or disrepute." And
other reverses have followed. Accordingly, attentive Americans have
since been aware of subtler changes in the air than the grim Alien
and Sedition Acts.
For example, currently, not only traditional civil libertarians are
concerned at how the controversy over the far-flung scope of NSA
surveillance has further illuminated the president's conception of
his own extensive unilateral powers as commander in chief.
But too little attention is being paid to another sign in the air of
his chronic disregard of the separation of powers. It was worldwide
news when, at the televised Oval Office meeting between the
president and Sen. John McCain, R-Ariz., George W. Bush abandoned
his and Dick Cheney's battle to kill McCain's amendment forbidding
"cruel, inhuman and degrading" treatment of American detainees.
(It's known as "the anti-torture" amendment and had been approved
overwhelmingly by Congress.)
However, on Jan. 4, Boston Globe reporter Charlie Savage, a
first-rate Washington correspondent, wrote that, quietly, on Dec.
30, there appeared on the White House Web site unnoticed
over the New Year's weekend a statement by the president
that he has the right to ignore McCain's amendment under his sole
constitutional authority as commander in chief.
Bush, as Savage wrote, did this hidden-ball trick in "a 'signing
statement' an official document in which the president lays
out his interpretation of a new law. This means Bush believes he can
wave the restrictions, the White House and legal specialists said."
Yet, after the resounding White House reconciliation meeting,
national security adviser Stephen Hadley had grandly proclaimed that
"the legislative agreement we've worked out with Sen. McCain" now
makes his amendment "a matter of law that applies worldwide, at home
Then came the signing statement which, Knight Ridder
Newspapers report, was one of more than 500 he has signed to expand
McCain objected and promised "strict oversight" to ensure his
amendment doesn't vanish. But New York University law professor
David Golove, a specialist on executive powers, told the Boston
Globe: "The Bush signing statement is saying, 'I will only comply
with this law when I want to ... I have the authority to do so and
nothing in this law is going to stop me."
During the questioning of Judge Samuel Alito before the Senate
Judiciary Committee on Jan. 10, the question of the president's
ignoring the utterly clear wish of Congress to make the McCain
amendment the law came up. But Alito avoided any direct response,
let alone any concern about the president's vaulting over the
Constitution's separation of powers.
I expect that most of those Americans who may have heard about this
presidential signing statement do not regard it as relevant to their
own lives. But, as Robotham wrote in his "Twilight in America"
editorial in the Port Folio Weekly, we have to be continually
vigilant to protect our constitutional liberties. "If we believe
that a little illegal spying is OK (for instance) we will one day
find ourselves in darkness" in this or a future administration.
I agree with Robotham that "it's not overstating the case to suggest
that 2006 stands to be a pivotal year in the history of the United
States. It can become a year of renewal, or a great turning point in
the demise of the American experiment.
"The choice is ours." And that of your members of Congress.
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Nat Hentoff is a nationally renowned authority on the First Amendment and the Bill of Rights and author of several books, including his current work, "The War on the Bill of Rights and the Gathering Resistance". Comment by clicking here.
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