Obama v. Our Liberties

Nat Hentoff

Having often walked up the marble steps to the massive bronze front doors of the Supreme Court while interviewing Justice William Brennan for a New Yorker profile and for my book Living the Bill of Rights, I was startled to see in the May 3 Washington Post that the doors have been permanently locked. We the public will have to go to another entrance on the plaza for security checks. Justices Stephen Breyer and Ruth Bader Ginsburg sharply dissented from their colleagues’ decision to seal those doors. Said Breyer: “To many members of the public, this Court’s main entrance and front steps are not only a means to, but also a metaphor for, access to the Court.”

Shocked into fantasy, my instant reaction was that the highest Court’s doors had been closed to protect what’s left of the Bill of Rights and the separation of powers from President Barack Obama’s continuation—even his expansion—of the Bush-Cheney assaults on the Constitution. After all, three days before, The New York Times reported revealing impromptu remarks by Obama to reporters on an Air Force One flight to Washington from the Midwest. “In a seeming rejection of liberal orthodoxy,” the Times story began, “President Obama has spoken disparagingly about liberal victories before the Supreme Court in the 1960s and 1970s—suggesting that justices made the ‘error’ of overstepping their bounds and trampling on the role of elected officials.”

This was the “overstepping” Supreme Court of Earl Warren, Hugo Black, William Douglas, John Marshall Harlan, Thurgood Marshall, Abe Fortas, and John Paul Stevens—the Court that gave us:

  • Mapp v. Ohio (the mandatory exclusion of illegally obtained evidence);
  • Engel v. Vitale (separation of church and state);
  • Gideon v. Wainwright (the right of the impoverished in criminal cases to an attorney);
  • New York Times v. Sullivan (assuring the press’s First Amendment right to criticize public officials); and
  • Miranda v. Arizona (the right of the arrested to be silent).

Moreover, the Court during those years, with exceptions, exemplified what Earl Warren (chief justice from 1953 to 1969) said back in 1938 before he became governor of California: “I believe the preservation of our civil liberties to be the most fundamental and important of all our governmental problems, because it has always been with us and always will be with us—and if we ever permit these liberties to be destroyed, there will be nothing left in our system worthy of preservation.”

I can understand President Obama’s aversion to that Warren Court’s civil-liberties commitment to the Bill of Rights and the separation of powers. As a president aided by ever-advancing technology, Obama has done more to eviscerate our fundamental Fourth Amendment rights than any of his predecessors, returning us to British “general searches” of American colonists’ homes and offices.

Moreover, consider how far Obama is from what Earl Warren wrote in Spano v. New York (1959): “Life and liberty can be as much endangered from illegal methods used to convict those thought to be criminals as from the actual criminals themselves.” Consider, for example, the endangered lives and liberties of those Americans—and non-Americans—protected by the Geneva Conventions, the International Covenant Against Torture, and the U.S. Torture Act, who have continued to be victims of the Bush-Cheney-Obama torture policy.

Consider another example—to choose from a fast-growing list: an April 10, 2010, Human Rights Watch report on the continuation of our barbarous torture legacy by the Iraqi government, without a critical word from Obama. In a secret Baghdad prison, the report reveals, mostly Sunni Arab prisoners were tortured by being hung upside down, then whipped and kicked before being suffocated with a plastic bag. “Those who passed out were revived, they said, with electric shocks to their genitals and other parts of their bodies.”

I remember hearing such accounts from survivors of the torture chambers of the previous Iraq regime, the one we overthrew with ambitions to “liberate” the survivors. And presently, in the American prison at Bagram Air Base in Afghanistan, torture continues while the Obama administration rules that these prisoners have no rights at all.

As for our present commander in chief’s dedication to such quaint American values as the rule of law, despite the extensive documentation of the war crimes (I use the term literally) by the previous administration and by Obama’s, there is this indictment by Jameel Jaffer, head of the American Civil Liberties Union’s National Security Project:

While the Bush administration constructed a legal framework for torture, the Obama administration is constructing a legal framework for impunity. . . . In the last month of 2009 [and into the present], not a single torture victim has had his day in court . . . we don’t have a binding definitive determination from any [American] court that what went on for the past eight years [and is continuing under parts of the current Army Field Manual] is illegal.

As of right now, President Obama, who criticizes the Supreme Court of the 1950s and 1960s for its “judicial activism,” has during his own first year of office authorized attacks on purported terrorists in Pakistan, Afghanistan, and Yemen by pilotless Predator and Reaper drone planes. These have included targeted assassinations, including a pending, already-authorized hit on at least one American citizen in Yemen. These killer drones are directed by the Central Intelligence Agency without any involvement of American courts, and their corollary murders of innocent civilians have greatly angered surviving civilians in the affected countries.

On April 28, the ACLU told the president in a letter that “the ‘kill lists’ [you have authorized] are far more sweeping than the law allows and raise grave constitutional and human rights concerns. . . . If the United States claims the authority to use lethal force against suspected enemies of the U.S. anywhere in the world—using unmanned drones or other means—then other countries will regard that conduct as justified.

“The prospect of foreign governments hunting and killing their enemies within our borders or those of our allies is abhorrent.”

As of this writing, there has been no answer from President Obama. Nor have I seen any urgent concern about these classified “kill lists”—under the ultimate supervision of the commander in chief—in the printed press, radio, cable and broadcast television, or on the Web, except from such commentators as former constitutional lawyer Glenn Greenwald.

No segment of the citizenry has taken to the streets in protest, not even the Tea Party activists. There has been similar silence about Obama’s invocation of “state secrets” to prevent court cases even being heard against his extensions of Bush-Cheney suspensions of the Constitution.

The morning after the first U.S. Tea Party was held—by the Sons of Liberty, who had painted and dressed as Indians —John Adams heard the news. In John Adams and the American Revolution (Little Brown), Catherine Drinker Bowen quotes his reaction: “This is the most magnificent movement of all. There is a dignity; a majesty; a sublimity in this last effort of the patriots that I greatly admire. The people should never rise without doing something to be remembered, something nota
ble and striking. This destruction of the tea is so bold, so daring . . . it must have . . . important consequences.”

But what will arouse that fiery spirit in the people now, as we increasingly become a surveillance society under this president, who has expressed no objection while the omnipresent National Security Agency logs our phone calls and e-mails into its databases? They are now working on finding out our thoughts.

And now, no one will be able to climb the steps to the Supreme Court’s marble columns and enter through its bronze doors under the inscription “Equal Justice Under the Law.” Justice Breyer told The New York Times (May 4) that “no other Supreme Court in the world—including those, such as Israel’s, that face security concerns equal to or greater than ours—has closed its main entrance to the public [while] the main entrances to numerous other prominent buildings in America remain open.”

There has been no expression of concern from President Obama, even as he otherwise raises cautions about the Supreme Court trampling on the prerogatives of elected officials, very much including the commander in chief.

Back in February 2003 at Michigan’s Hillsdale College—one of the very few American institutions of higher learning with mandated courses on the Constitution—Economics Department Chair James Buchanan said in a speech: “In a constitutional democracy, persons owe loyalty to the Constitution rather than government. I have long argued that on precisely this point, American public attitudes are quite different from those of Europe.”

But how many of our citizens know what’s actually in the Constitution? When President Obama gave his commencement speech at the University of Michigan on May 1, he was awarded—with a standing ovation—an honorary doctor of laws. Whose laws? Whose Constitution did he use when he taught it at the University of Chicago?

Nat Hentoff

Nat Hentoff is a United Media syndicated columnist, a senior fellow at the Cato Institute, and the author of, among other books Living the Bill of Rights (University of California Press, 1999) and The War on the Bill of Rights and the Gathering Resistance (Seven Stories Press, 2004). His latest book is At the Jazz Band Ball: Sixty Years on the Jazz Scene (University of California Press, 2010).


Having often walked up the marble steps to the massive bronze front doors of the Supreme Court while interviewing Justice William Brennan for a New Yorker profile and for my book Living the Bill of Rights, I was startled to see in the May 3 Washington Post that the doors have been permanently locked. We …

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