Today is Bill of Rights Day, the 220-year anniversary of this revered documents addition to the U.S. Constitution in 1791. The Anti-Federalists had demanded a Bill of Rights to ensure that the federal government created in 1789 would not morph into the type of tyranny that the American colonists had resisted in the Revolution.
It might seem like a difficult day to celebrate, however, as we consider the current state of liberties in our nation. With the militarization of police, the erosion of requirements for search and seizure, the presidential powers used as a blanket for deplorable detention policies, the raging war on drugs, invasive TSA security procedures and so much else, todays governing principles at times seem to reflect the authorship of George Orwell more than that of James Madison.
U.S. history reminds us of why so many early Americans wanted a Bill of Rights. They understood that governments abused their power, a truth that has since been corroborated by our presidents actions time and again. Within the first decade of the new government, President John Adams turned his back completely on the First Amendment, signing the Alien and Sedition Act that criminalized criticism of his administration. It was a brazen violation of one of the most fundamental human rights.
War has been the greatest cause of depredations on civil liberties. During the Civil War, President Lincoln censored the press, jailed citizens without trial, and prosecuted civilians by military commission. During World War I, President Wilson incarcerated Americans merely for criticizing the war or allied forces, going so far as to imprison Eugene Debs for speaking out against the military draft. During World War II, the Roosevelt administration put 110,000 Japanese Americans, loyal to the United States, in internment camps without any civil due process. During the Cold War, the surveillance state grew as presidents spied on political enemies and cracked down on dissent.
We see the same patterns in government as we continue to wage war on terror. In the ten years since the September 11th tragedies, we have witnessed a cascade of executive powers that flies in the face of the Bill of Rights guarantees of fair trials, prohibitions against cruel and unusual punishment and unreasonable searches. Yet even in the last decade, politicians have pretended to uphold the Constitution. President George W. Bush gave lip service to the Fourth Amendment on April 20, 2004:
Any time you hear the United States government talking about wiretap, it requiresa wiretap requires a court order. Nothing has changed, by the way. When were talking about chasing down terrorists, were talking about getting a court order before we do so. Its important for our fellow citizens to understand, when you think Patriot Act, constitutional guarantees are in place when it comes to doing what is necessary to protect our homeland, because we value the Constitution.
In December 2005, news leaked of Bushs secret surveillance program conducted by the National Security Agency (NSA), aimed at spying on American telecommunications with foreigners without obeying the very lax standards outlined in the Foreign Intelligence Surveillance Act of 1978.
Barack Obama was elected on a swell of civil libertarian concern about Bushs surveillance and detention policies. As a presidential candidate, he promised repeatedly to stand against warrantless surveillance and detentions without due process. In June 2007 he had said:
Its time for us to close Guantanamo and restore the right of habeas corpus. Its time to show the world that we are not a country that ships prisoners in the dead of night to be tortured in far off countries. That we are not a country that runs prisons which lock people away without ever telling them why they are there or what they are charged with.
But once in the White House, President Obama continued to enforce most Bush policies, and in some cases expand upon them. Obama has revived military commissions and the indefinite detention of terror suspects. He has blocked the release of prisoners his own administration determined were not terrorists. He has invoked the Espionage Act more than all other presidents combined, used state secrets to shield officials from accountability for torture, and even targeted an American citizen for execution without due process. The Fifth and Sixth Amendments have been gutted of all meaning as it concerns national security, thanks to Bush and Obama.
The presidents whose actions have most violated the Bill of RightsAdams, Lincoln, Wilson, Roosevelt, Nixon, Bush, and Obamawere all elected, proving that democracy alone doesnt give teeth to the Bill of Rights. Neither does representative republicanism in the legislature. Congress gave Adams what he wanted in respect to silencing political opponents. It bowed to Lincoln in suspending habeas corpus. It passed the Sedition Act that allowed Wilson to incarcerate people for their opinions. It mostly stood by Roosevelts violations of civil liberties. It was deferential to presidential power for most of the Cold War.
Congress passed the Patriot Act and Military Commissions Act under Bush. Even after the Democrats took over in 2007, in many cases vowing to undo the damage the Republicans had done to the Bill of Rights, enough of them joined the Republican minority to overwhelmingly legalize Bushs warrantless wiretapping program with the Protect America Act. Today we see the bipartisan Congress approving the entire slate of war on terror power grabs.
Nor can we trust the courts to save our freedoms. The Supreme Court upheld the imprisonment of peaceful dissidents in World War I and the internment of Japanese Americans in World War II. In recent years we have seen the Court erode due process protections in criminal justice, side with drug warriors against medical marijuana patients, and uphold the taking of private property for the purpose of giving it to a big business in the name of public usean obscene distortion of the Fifth Amendments safeguards against eminent domain abuse.
Even though the Court rebuked Bushs detention policy in several high-profile cases in 2004, 2006, and 2008, the judiciary as a whole has largely deferred to the presidents detention powers, ultimately siding with the executive branch in the last thirteen Guantánamo habeas corpus cases. It has been unable or unwilling to restrain the president in a whole host of areas, from the Bagram prison facility housing 3,000 detainees without even the due process protections afforded to Guantánamo inmates to the military trial of Omar Khadr, who was captured as a severely wounded child soldier in Afghanistan and railroaded into pleading guilty to war crimes.
Clearly, we fall far short from having Bill of Rights that we adhere to and that was designed for our future posterity over 220 years ago. In the end, it is public opinion that most restrains political powernot words on paper, not judges, not politicians promises. A population that is not decidedly and passionately against violations of their liberties will see their rights stripped away. If we want to have a Bill of Rights Day worth celebrating, we must demand that officials at all levels respect our freedomsand not let the government get away with abusing them.
THE POWER OF HABEAS CORPUS IN AMERICA: From the Kings Prerogative to the War on Terror
As perhaps the most important legal protection, habeas corpus has a rich history from medieval England to modern America involving opportunistic power plays, political hypocrisy, ad hoc jurisprudence, and many failures in effectively securing individual liberty.