Jewish World Review Jan. 28, 2002 /15 Shevat, 5762
"Our job here," Viet Dinh tells Legal Times, "is to defend freedom." There are those, however, including this columnist, who believe that Dinh, Ashcroft and Bush have been seriously eroding the American freedoms they fiercely believe they are defending. A critic of the job Ashcroft and his colleagues are doing is Richard Goldston of South Africa's Constitutional Courts. Goldston is internationally respected for the firmness and fairness of the way he did his job as chief prosecutor for the International Commission for Rwanda and Bosnia.
Last December, at the University of San Diego, Goldston participated in a conference at the opening of the new Joan B. Kroc Institute for Peace and Justice.
Joining the American civil libertarian criticism of the Bush-Ashcroft-Dinh team, Goldston, as reported in the National Catholic Reporter, said that although American polls strongly support the administration's anti-terrorism policies, one result is that "young democracies in other countries are being endangered" as they see the United States discount core liberties in its own Constitution.
"The institutions that democracy is required to maintain," Goldston emphasized, "are costly. And when the United States, which is regarded as one of the bastions of democracy, goes back on its own values, it imperils and makes more difficult the creation of a human rights culture in young democracies."
Recent presidential restrictions on American civil liberties, said the chief former prosecutor for the International Criminal Tribunal, "can only encourage undemocratic processes in non-democracies" trying to learn how to be democratic.
Also at the University of San Diego conference was former U.S. President Jimmy Carter, who made the corollary point: "We Americans are citizens of an unchallenged superpower. If we continue to expound shortcuts in the administration of justice, there is a global effect set in motion.
"It is going to be difficult in the future," the former president continued, "to condemn another country -- China for instance -- which might have a secret military tribunal and convict an American accused of, say, spying."
Even with revisions in our military tribunals, serious civil liberties problems remain.
One of the frequently intoned arguments of the supporters of the Bush-Ashcroft-Dinh way of securing our freedom is that the Constitution is not a suicide pact. Keeping in mind the ruthless Sept. 11 murders of Americans on this very land by members of the worldwide, shadowy conspiracy with some of their "sleepers" waiting to strike again at us here at home, they say, it is essential to limit some of our civil liberties to save them. One of the sources of the quotation that our Constitution is not a suicide pact was former Supreme Justice Arthur Goldberg. However, on the floor of the Senate, as the Bush-Ashcroft-Dinh U.S. Patriot Act was being debated, Sen. Russell Feingold of Wisconsin -- the only senator to eventually vote against that anti-terrorism bill -- vainly reminded his colleagues of how Arthur Goldberg elaborated on that statement in the Kennedy v. Mendozza-Martinez case, which was about draft evasion:
"It is fundamental that the great powers of Congress to declare war and to regulate the Nation's foreign relations are subject to constitutional requirements of due process. The imperative necessary for safeguarding these rights to procedural due process under the gravest of emergencies has existed throughout our constitutional history -- for it is then, under the pressing exigencies of crisis, that there is the greatest temptation to dispense with fundamental constitutional guarantees which, it is feared, will inhibit governmental action." This is also true of the executive branch.
Goldberg then quoted from ex parte Milligan (1866), when the Supreme Court declared Abraham Lincoln's suppression of dissent through military courts during the Civil War unconstitutional: "The Constitution of the United States is a law for rulers and people, equally in war and peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances ... In no other way can we transmit to posterity unimpaired the blessings of liberty, consecrated by the sacrifices of the Revolution."
Contrary to the attorney general, the job of those of us who dissent from the Bush-Ashcroft-Dinh curtailing of the Constitution is to defend