Many commentators have called the Democratic victory in the November elections a referendum on the Bush administrations policy in Iraq. They have also noted that the voting public is concerned by the attacks on civil liberties so loyally defended by nearly all the Republican lawmakers in fighting the war on terror. The Democrats, presumably, now have a mandate to reverse current trends in domestic as well as foreign anti-terror policy.
There is little reason for optimism that the Democrats will follow through on this supposed mandate, and deliver us from the evil of the growing police state of warrantless searches, indefinite detentions, sweeping surveillance, and other attacks on civil liberties.
For one thing, Democrats have supported the worst of Bushs policies. Only one Democrat in the Senate, Russ Feingold, opposed the Patriot Act when it was first proposed. Just this year, Democratic members of the House overwhelmingly, and Democratic Senators unanimously, approved the Defense Authorization Act for 2007, which contains frightening modifications of the Insurrection Act and new exceptions to Posse Comitatus, empowering the president to summon the National Guard, without gubernatorial authority, and to enforce martial law during emergencies ranging from natural disasters to health crises. More than 25 percent of Senate Democrats even voted for the Military Commissions Act, marking the first time since the Civil War that the federal government suspended Habeas Corpus.
Although the Democrats will sometimes attack an egregious Bush proposal, they have not used the power of the purse or the filibuster to do anything about it. Nor should we assume they will be so mindful of civil liberties now that they are in the Congressional majority and have their eyes set on the presidency. Power corrupts, and Democrats in power have long shown a willingness to shred the Bill of Rights.
Woodrow Wilson arrested hundreds of antiwar Americans, including a presidential candidate, for protesting the draft; deported anarchists to Communist Russia; and imprisoned a movie producer for depicting the British as an American enemy in his film about the American Revolution. (Under the 1918 Sedition Act, it was a federal crime to criticize a U.S. ally, which Britain was.) Franklin Roosevelt oversaw an Office of Censorship, made plans to detain hundreds of peaceful political enemies, imprisoned war opponents, and interned 110,000 innocent Japanese Americans. Lyndon Johnson had the FBI spy on reporters and used the FBI and CIA to wiretap, monitor, and infiltrate the campaign of his presidential rival, Barry Goldwater.
But we dont need to go back so far to indict the Democrats on civil liberties issues. Under Bill Clinton, the police state grew perhaps as much as it feasibly could during a relative time of peace. According to the ACLU, Clinton expanded stealth surveillance of the citizenry far beyond anything seen under any prior administration. Clinton sought to allow the feds to peek at everyones bank account, have a key to all private encryption and e-mail, and censor the Internet. After the Oklahoma City bombing, Clinton signed the draconian Anti-Terrorism and Effective Death Penalty Act of 1996, expanding the authority of secret courts, unleashing the FBI to investigate First Amendmentprotected activities, and allowing the INS to deport American citizens.
Under Clinton, there was also the military operation on American soil just outside Waco, Texas, where about 80 American civilians died when a 51-day standoff culminated in a fire breaking out after a federal tank rammed through a religious sects home and gassed its women and children with poisonous and flammable CS gas. In this case, an imaginary meth lab was the original rationale to circumvent Posse Comitatuss prohibitions on military involvement in law enforcementthe drug war, which the Democrats have consistently and enthusiastically upheld, has also been a disaster for civil liberties and the rule of law.
When the Democrats controlled both the presidency and the legislature, as they did during much of Wilson, all of FDR, and all of Johnson, civil liberties suffered greatly. When, under Clinton, they split the government with Republicans, the police state nevertheless grewmeaning neither the GOP nor partisan gridlock is our salvation, either.
If the Democrats want to win points as better guardians of American liberty than the Republicans, they can begin by abolishing huge portions of the war on terror infrastructurethe Patriot Act, the Military Commissions Act, and the new presidential powers over martial law. They should then challenge Bush on the principle of the unitary executive, block funding for warrantless military surveillance of the population, and strip away the Justice Department and militarys power to indefinitely detain people without due process.
The Democrats, however, have had about as shameful a record on all this as the Republicans, even when they were the opposition party. Now that they have a better seat at the table of power, who thinks theyll do anything to curb the police state they helped so much to build?
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.