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Jewish World Review Jan. 19, 2006/ 19 Teves, 5766

Nat Hentoff

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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 air.

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 and abroad."

Then came the signing statement — which, Knight Ridder Newspapers report, was one of more than 500 he has signed to expand his powers.

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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