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I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Tuesday, February 21, 2006

Are there American political values that transcend ideology?

The British historian David Irving was sentenced yesterday by an Austrian criminal court to three years in prison for violations of an Austrian law which criminally punishes "whoever denies, grossly plays down, approves or tries to excuse the National Socialist genocide or other National Socialist crimes against humanity in a print publication, in broadcast or other media." In sum, Irving was convicted and imprisoned for expressing ideas which the Austrian Government has banned.

Every American blogger whom I found discussing this issue – from the left wing to the Far Right and everything in between – was in complete agreement regarding this event. They all unambiguously expressed the opinion that while those who deny or downplay the Holocaust are deplorable, nobody should be imprisoned or prosecuted by the State for expressing an idea, no matter how repugnant the idea might be. That sort of trans-ideological consensus is almost unheard of these days with regard to any issue, and it raises what I think are several extremely interesting and important points.

I have argued many times that a recognition of the dangers of the Bush Administration’s theories of lawlessness and its law-breaking behavior -- both as part of the NSA scandal and beyond -- is not based upon liberal or conservative political beliefs but, instead, is compelled by the most fundamental and defining American principles of government. That is not some "framing" ploy or effort to "triangulate" a partisan political controversy by elevating it above petty partisan disputes. Rather, objections to the Administration's theories of power are grounded in non-ideological premises because what is so offensive about the Administration’s conduct and theories of power is not that they are liberal or conservative -- they are manifestly neither. Instead, both the Administration's law-breaking and its justifications for that law-breaking constitute a profound assault on the core principles of government on which our country was founded and which has governed the country since its inception.

That is the reason – the only possible explanation – why people across the usually impenetrable ideological divide have expressed such strong objections to the Administration’s lawless theories and behavior as part of the NSA scandal. And, notably, the arguments which are advanced against the Administration’s conduct are strikingly similar when articulated by the most liberal or the most conservative individual and by everyone in between -- just as the reaction to the David Irving conviction is so similar across ideological lines. That is not a coincidence. There is a compelling reason for that consensus. As I’ve argued before:

Importantly, this [the NSA scandal] is not a case where liberals and conservatives arrive coincidentally at the same place despite beginning from radically different premises -- the way, say, Pat Buchanan’s isolationist theories just coincidentally lead him to the same anti-war views as certain pacifists on the Left.

Here, the basis for opposition to the Administration’s action among liberals, conservatives and everyone in between comes from exactly the same set of principles and beliefs -- namely, that what is at stake in this scandal is whether America will continue to live under the principles of law and the system of government on which our country was founded and which has kept us both strong and free.

It is a difficult idea to express with precision, but I really believe that there exists a core set of political values which Americans have ingrained within them by virtue of growing up in this country, being educated here, and being inculcated with common perceptions of the country’s founding and its history (by "political values" I mean only that the values pertain to principles of government and law, rather than to, say, personal conduct or private morality). And when immigration policies are managed correctly, immigrants arrive here with those values already incubated or with an instinctive openness to them (which is one of the reasons they desire to come here), and they come eventually to embrace these values as well, regardless of political ideology.

To the extent that there is a set of values which can be said to define and distinguish what it means to be "American" -- and I believe there is such a set of values -- it is the core principles that define our political system and to which we all more or less implicitly subscribe. That Americans across the ideological spectrum still maintain a shared set of core political beliefs is what accounts for the consensus reaction to events such as the David Irving conviction, an event which does not even remotely produce a similar consensus in Europe or elsewhere.

The reason for this is clear. One ingrained American political principle is that citizens cannot and must not be punished by the State for expressing ideas and opinions, no matter how reprehensible, repulsive or even dangerous the opinions are. This is not something which most Americans even need to contemplate or debate. It’s ingrained on a visceral, almost instinctive level, such that reading an article which reports on someone’s imprisonment for expressing an idea provokes an immediate, reflexive revulsion. That is what accounts for the fact that reaction to the Irving story among American bloggers of all political stripes was not only so negative, but that the condemnation of Irving's imprisonment was expressed in the same terms, with the same language, and through an appeal to the same ideals.

The Austrian Holocaust denial law is by no means the only free speech restriction in Europe which would be unquestionably unconstitutional, and widely scorned, in the United States. It is not uncommon for individuals and groups in Europe (and Canada) to be criminally punished by the State for expressing all sorts of prohibited ideas. Punishment is meted out for ideas that are deemed by the state to be anti-gay, anti-Muslim, racist, or just generally "hateful" or "discriminatory." And the punishment under these European and Candaian laws is not triggered by some threatening behavior or act of physical provocation; it is imposed exclusively for the expression of ideas which the State has decided ought to be criminally prohibited.

I know from debating these issues that there are handfuls of people on the Far Left who will defend free speech restrictions of this sort on the ground that the right of people to be free from feelings of "intimidation" or "discomfort" outweighs the rights and virtues of free expression. And there are people on the Far Right who favor their own pet restrictions on free expression, whether it be prosecuting people for burning flags or prohibiting the expression of ideas they claim are "pornographic" or "obscene."

But outside of these fringes and aberrational viewpoints, the notion that the Government can define a set of ideas which is criminally prohibited, and which can serve as a basis for criminal prosecution, is sharply distasteful and even infuriating to most Americans. Reading about a Government somewhere punishing people for their ideas simply violates core American beliefs about the proper role of government and what is or is not a legitimate exercise of state power.

It is this same set of core political values on which opposition to George Bush's violations of the law is predicated, and that is what leads me to believe, vehemently, that Americans can be made to understand and appreciate the real danger and threat of the Administration’s behavior. Just as imprisoning people for their ideas is repellant to most Americans, it is (at least) equally repellent to these core values to hear the President claim that he has the power to break the law, that he can employ war powers against American citizens on U.S. soil even in the face of Congressional statutes making it a crime to exercise those powers, and that neither the Congress nor the courts can do anything to limit or restrict the President's conduct.

The set of precepts composing core American political values is clear and uncontroversial to most. We are a nation that lives under the rule of law. No man is above the law, including the President. Presidents do not have the right to engage in conduct which Congress makes it a criminal offense to engage in. To avoid the President seizing the powers of a King, the powers he exercises must always be checked and balanced by the Congress and the courts. In order to ensure that we have a representative government, only the people, through their Congress, make the laws, and everyone, including the President, is required to abide by those laws. We are a nation that is ruled by the people -- our elected officials do not rule over us -- and when we enact restrictions through our Congress on what our Government can do to us as citizens (as we did with FISA), those laws bind all citizens, including our elected officials.

None of those principles is even arguably liberal or conservative in the contemporary, political sense of those words. They are the defining American principles of government which has guided our country since its founding. And the Administration’s radical theory that any matter relating to national security threats "is for the President alone to decide" and that neither Congress nor the courts "can place any limits on the President's determinations" – which even bestows on the President the power to ignore Congressional laws or to wield war powers against American citizens on U.S. soil – could not be any more contrary to all of these core principles.

These are the principles that led Americans, in 1978, to enact a law, in response to decades of abuse of eavsdroping powers by Administrations of both parties, which made it a criminal offense for our government to eavesdrop on Americans without judicial oversight and approval. We collectively decided that we want aggressive eavesdropping against our foreign enemies, and the law we enacted enables aggressive eavesdropping. But we also decided that we trust our government to eavesdrop on Americans only with judicial oversight, not in secret and with no oversight. Through our Congress, that was the law we passed, and with that law, we imposed restrictions on the powers which our government could exercise against us.

George Bush concluded that he has the power to ignore that law – or any other law even remotely relating to national security – which he finds burdensome or undesirable. That is the Administration’s expressly stated theory of the President’s power, and it is what led them not only to violate this law, but to engage in the most un-American act possible of detaining U.S. citizens and imprisoning them indefinitely in a military prison without so much as charging them with a crime or allowing them access to a lawyer.

That conduct, and the theories underlying it, are at least as repulsive to core American political values as imprisoning people for expressing prohibited ideas. Very few Democrats have actually tried to make Americans aware of these matters, and to the extent that this case has been made at all, it’s been made most potently by conservatives. But these are the principles which are at stake here, and they are not even remotely ideological ones. None of this is about eavesdropping or FISA or Al Qaeda or libearlism or conservatism. Just as is the case for the David Irving conviction, the entire controversy surrounding the Administration's radical theories of power are about the principles of government on which our country was founded and which most Americans, by definition, instinctively embrace, regardless of political ideology.

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