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IS THE DEFENSE OF CONSTITUTIONAL LIBERTIES REALLY A PARTISAN QUESTION, OR IS IT THE MEANING OF THE OATH SWORN BY ALL ELECTED OFFICIALS? 18 September 2007 American conservatives, from ideologues to the everyman on the street, have long touted the notion that government powers should not be expanded, that the US Constitution contemplates a small, limited role for government in American life, and that what is needed to address society's ills is not the enactment of new laws, but enforcement of the "laws already on the books". But the 21st century has seen a radical departure from that philosophy among conservative politicians in Washington, DC. In the first 6 years of the two terms of Pres. George W. Bush, with the Republican party in control of both houses of Congress for the majority of that period, we have seen the largest expansion of government spending since the Great Depression and the largest expansion of executive powers since the Civil War. This has been done by self-declared conservatives, many of whom tout their credentials as Constitutional "strict constructionists", which means they are wary of giving the government any responsibilities or the public any rights not strictly enshrined in the construction of the political system by the US Constitution itself. The last two years have seen a stunning array of judicial rebukes of new laws and expansions of executive power, whether in law or in practice and with disregard for due process and established law. The 'laws on the books' brand of conservative thinking would tend to discredit all such activities as a shameless and dangerous power-grab, and one would expect to see large numbers of libertarian Republicans swearing allegiance to any party but the GOP. But this has not occurred in a nationally visible way. We have seen the federal courts or the Supreme Court strike down indefinite detentions, extrajudicial 'renditions', aggressive interrogations that violate torture prohibitions, detention without counsel, prosecutions with secret evidence, the philosophy that the US government need not follow any law whatsoever on its properties in other countries (reference: Guantánamo Bay), the Guantánamo Bay prison camp itself, warrantless wiretapping, blanket surveillance, and now the widespread use of National Security Letters which essentially isolate an innocent citizen in a legal bubble where no constitutional protections exist. While we have seeen defections from White House, Justice Department, State Department and Defense Department staff, sometimes very high profile (reference Colin Powell), we have not seen a sustained effort to build a concerted criticism of what appears to be a political philosophy not espoused by either of the major parties' rank and file. The national news media have treated each of these major historical expansions of government power as minor curiosities, on a par with celebrity jail terms and sports-related punditry. The federal courts' rebuke of the government's abuse of the NSL as an investigative tool is the latest in a series of judicial actions aimed at checking the executive's attempt to enact new powers born primarily of the legal philosophy of the outgoing attorney general. AG Gonzales supported the president's right to unilaterally declare any US citizen an 'enemy combatant', stripped of all Constitutional protections; he also supported the concepts of indefinite detention, trial without counsel, secret evidence, torture being permitted under the Geneva Conventions —which explicitly ban all instances of torture and blanket wiretapping of the American population, all of which have been struck down by the courts. But the issue is not about one man, and it's not about a conspiracy of any deliberate kind. It's a question of why so many individuals involved in the executive and legislative branches have felt compelled to abandon their faith in the system of laws as they have always known and supported it. It is vital to see this time in American history through the lens of that question, because these activities have represented a radical departure from what has been considered accepted thinking on Constitutional values and the rule of law. Some have seen this as a special period (like the Great Depression, World War II or Fidel Castro's reaction to the collapse of the USSR), wherein expansion of executive powers was necessary for securing the nation and its system of government. It is hard to put a moral value on such arguments, but many in public life find them equally difficult to contest. Putting aside for a moment political categorizations like 'left', 'right' or 'centrist', 'conservative' or 'liberal', 'progressive' or 'libertarian', we should consider that all respectable political views have something to contribute to the national discourse, and in some way or another play a role in shaping whatever policies may be the most responsible or may emerge over time as reasonable and acceptable to a free people. The role often played by ideological conservatives in American life and politics has often been valuable precisely because it expresses the natural suspicion of excessive government power or interference in the personal life of individual citizens. How, for instance, does citizen government work if the government itself does not treat the citizen as superior to its perceived 'interests' in a difficult moment? Democracy requires that the individual be a higher consideration than government action. When Ronald Reagan famously demanded of the Soviet premier "Mr. Gorbechev, tear down this wall!", he was not just making a defiant remark to a sworn enemy. He was, in fact, calling on what he termed the "evil empire" to engage with his society, diplomatically, commercially, and in a contest of ideas, believing that the ideals of open democracy were more resilient than any totalitarian system ruled by committee. The declaration was not just a dare, it was also a way of pointing out that such barriers against individual liberty are more than mere metaphors, more than security barriers. They are a sign of shame at the illegitimate nature of a government not chosen by its people and which sought to rule by overpowering the populace. You cannot protect and govern a truly free society by building legislative walls around the activities of the citizenry. The citizens need to enjoy the freedoms necessary to live life artfully, to choose their path, to forge new ways forward, to craft by their own actions and decisions a better society. Existing laws, goes the old conservative concept, are sufficient to permit and promote those freedoms while allowing the government to ensure that abuses are rare. On 16 January 2006, in a speech to the Liberty Coalition, and with the support of conservative Republican and former Congressman Bob Barr, of Georgia, former vice president Al Gore gave a speech detailing concerns about the integrity of the US Constitutional system, in the face of what appeared to be a race by both the legislative and the executive branches to enact sweeping expansions of government power as a supposed means of combatting the threat of international terrorism. The speech was at first covered as both non-partisan and an historic criticism of a sitting president, organized as it was by a bipartisan group, but the reaction among conservatives was to the messenger and not the message. The media liked the idea that the story was a "juicy" morsel, because it entailed Mr. Bush's 2000 rival openly accusing him of violating his oath of office and the law. But the important news was that Gore's message on that day was far more closely akin to long-standing conservative values with respect to Constitutional law. Nevertheless, the political waters had been so muddied by the aggressive political rhetoric of recent years and the sliding of both parties toward ever-increasing confidence in government's power to spy and prosecute without Constitutional protections, yet without reducing real individual liberties, that it was hard for many to see the content of the speech as simply a matter of historical and legal exposition. Partisan rancor obscured the message and the bipartisan effort to bring to light the problems facing the system as a whole was hushed by a culture of security-first reporting and law-making. In that speech, Gore even echoed the view of many of the conservative Republicans who had pursued Pres. Clinton during the 1990s, saying "A president who breaks the law is a threat to the very structure of our government." And, he reminded the American public that "Our Founding Fathers were adamant that they had established a government of laws and not men. Indeed, they recognized that the structure of government they had enshrined in our Constitution —our system of checks and balances— was designed with a central purpose of ensuring that it would govern through the rule of law." He also sought to frame the predominant legal philosophy in American political history through the words of John Adams, who said: "The executive shall never exercise the legislative and judicial powers, or either of them, to the end that it may be a government of laws and not of men." We should now ask, 6 long years after the attacks on New York and Washington, do we as a people believe our leaders and representatives should uphold those values expressed by John Adams two centuries ago? And isn't it possible that American law is already equipped to bring even this new breed of murderer to justice, without undermining our political system? There may be no more important philosophical question in American politics over the next four to eight-year presidency, and the irony is that both major parties have the underlying philosophy, rhetoric, and historical perspective, to defend those revolutionary values, while in recent years, both have shied away from doing so. [s]
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