Do We Get the Constitution Back in 2012?

Nat Hentoff

On May 4, Bob Barr, a conservative Republican constitutionalist, wrote a blog post whose headline should define a fundamental issue in the 2012 elections: “With Bin Laden Dead, It’s Time to Restore the Bill of Rights” (The Barr Code, May 4, 2011).

I was not surprised at the source of this call. When President Bill Clinton introduced legislation in 1996 that included government fishing warrants for roving wiretaps of terrorism suspects—on any phone anywhere the target might use—Barr was the only member of Congress to vote against that provision, which is still in the Bush-Cheney PATRIOT Act that is also championed by President Barack Obama.

Important as Barr’s warning is, it will take more than resuscitating the Bill of Rights to bring back the separation of powers intended by the Constitution. Obama has gone even farther than George W. Bush in demonstrating the eighteenth-century prophecy of patriot Abigail Adams: “Power, whether vested in many or a few [or in an imperious president] is ever grasping, and like the grave, cries ‘Give, give!’” Obama, even more often than Bush, has invoked “state secrets” to prevent courts from even hearing cases in which the “unitary executive” has quashed all semblances of due process; for example, cases concerning government torture as championed by Bush, Donald Rumsfeld, and John Yoo.

Is this the same Obama who, on his very first day in office, issued an executive order forbidding torture and cruel, inhuman, or degrading practices? Yes! Yet the International Red Cross and the BBC have reported continuing torture in a special “black” room at our Bagram Airbase in Afghanistan (“What Is Obama Doing at Bagram?: Torture and the ‘Black Prison’” [www.andyworthington.co.uk2010/06/03]). And during Leon Panetta’s tenure as Obama’s director of the Central Intelligence Agency (CIA), “renditions”—also supposedly forbidden by Obama—have continued. In the preceding Bush administration, this term referred to our sending terrorism suspects to other countries to be tortured. Do Obama-era renditions only serve to give prisoners a change of scenery? Despite Obama’s proud pledge that his would be “the most transparent administration in our history,” all information about these CIA kidnappings is classified.

Soon after Obama became our leader, it was he who instructed us that we must fight terrorism “with an abiding confidence in the rule of law and due process, in checks and balances and accountability” (Glenn Greenwald, salon.com, March 24). Yet he has also seized the ultimate personal authority to order the targeted killings by CIA-directed Predator drones of alleged terrorists far from any battlefield—as is happening in Pakistan, Afghanistan, and Yemen. We know officially of one American citizen on the assassination list—Anwar al-Awaki, an outspoken, influential jihadist. He’s in hiding in fear of the executioner—without ever having faced charges or appeared in one of our courts. At least George III went to Parliament.

Inadvertently, innocent civilians are destroyed in those drone strikes, including women and children. Yet these pilotless killers have become this president’s favorite weapon against terrorists, beyond any accountability to our laws or international treaties we have signed. Increasingly, pilotless drones are also now in our American skies—useful for keeping tabs on suspected terrorists in our towns and cities.

Dig this: our president, who has taught constitutional law at the University of Chicago, surely is well versed in the Miranda warnings that must be given to those in our custody. But on March 24, the Wall Street Journal reported: “Obama’s Department of Justice announced “new rules [that] allow investigators to hold domestic-terror suspects longer than others without giving them a Miranda warning, significantly expanding exceptions to the instructions that have governed the handling of criminal suspects for more than four decades” (“Miranda Is Obama’s Latest Victim,” Glenn Greenwald, salon.com, March 24).

Having reported for decades on our government’s brutal violations of our own war-crime laws, and of international treaties we have signed forbidding cruel and inhuman treatment of prisoners held by us anywhere—the Constitution follows the flag—I was chilled when President Obama, during his third month in office, went to the CIA and promised: “I will be as vigorous in protecting you as you are in protecting the American people” (Garett Graff, The Threat Matrix [Little Brown]).

Many of these documented war crimes have been committed in the now-discontinued CIA secret prisons (“black sites”) and elsewhere. But since renditions are still going on, new sites may be added. Obama, true to his word, refuses to appoint an independent commission to investigate what Dick Cheney has called “the dark side” of our responses to terrorism.

President Obama insists he intends to “keep looking forward, not backward.” That lets him off the hook on his own “dark side.”

Getting back to the expiring Bill of Rights, our privacy rights hang by a thread as government surveillance technology advances beyond both what George Orwell could have imagined and what Bush and Cheney actually did. But there have been no street demonstrations or congressional inquiries into what the Washington Post’s Dana Priest and William Arkind documented last December 10 in “Monitoring America”: “The United States is assembling a vast domestic intelligence apparatus to collect information about Americans—using the FBI, local police, state homeland security offices and military criminal investigators.”

During next year’s presidential campaigns, most loyal Democratic voters will feel little concern about their eventually winding up in government surveillance databases. Some independent voters may be alarmed, but from the present field of Republican candidates for the Oval Office there has been nary a word about the unblinking government electronic eye—let alone Obama’s invasive collecting of links to your telephones, Internet choices, and the like. If you frequent Facebook or engage in Tweeting, the Federal Bureau of Investigation, the National Security Agency, and other official scrutinizers are there, too.

At our Constitutional Convention in 1787, Edmund Randolph of Virginia was among the delegates intent on preventing our having an executive branch with overreaching power. “The People,” he said, “will not bear the Semblance of Monarchy.” Randolph would be grievously disappointed at how inert The People have become as their guaranteed constitutional individual liberties have dissolved.

For a while, I had hopes that the Tea Partiers would take issue with big government’s unilateral suspension of the Fourth Amendment prohibition on unreasonable searches and seizures. But while the Tea Partiers have scorned many omnivorous expansions of the federal government, they’ve offered little protest against the president becoming our supreme spymaster. This seems most unbecoming for folks who often carry a copy of the Constitution in their pockets!

I have no idea whether George Santayana was a civil libertarian, but in his The Life of Reason, he gave us a lesson on which we—as involved citizens—must act if this constitutional republic is to survive: “Those who cannot remember the past are condemned to repeat it.”

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).


On May 4, Bob Barr, a conservative Republican constitutionalist, wrote a blog post whose headline should define a fundamental issue in the 2012 elections: “With Bin Laden Dead, It’s Time to Restore the Bill of Rights” (The Barr Code, May 4, 2011). I was not surprised at the source of this call. When President Bill …

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