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.

Friday, March 31, 2006

What would the Founders say?


GUEST POST - By Hume's Ghost

When I first discovered Glenn's blog I was impressed by the way Glenn so easily cuts through the legal b.s. that is put forth by the administration in defense of its actions and provides clear and concise explanations as to why the reasoning offered by the administration is insufficient. But there is a problem: clear and concise reasoning is not getting through to the public at large. The reason is that Republicans, led by Karl Rove, have found a way around reason and rational discussion - fear. They have exploited fear shamlessly since 9/11 in order to short-cut and bypass democratic discourse.

Thankfully, however, we have a resource at our disposal that Karl Rove can not hope to counter. What we have is the universal reverence that all Americans share for the Founding Fathers and the founding principles of this nation. If we can tap into that, then perhaps we can wake the slumbering spirit of democracy in this nation. For while people may lack the attention to be swayed by legalistic arguments, they are unlikely to remain ambivalent if they are made to realize that our government is being run by men to whom the concepts of democracy are alien or anathema.

Let's start with George Bush.

Does anyone think the President has ever read The Federalist or remembers doing so? Do you believe his actions are in any way informed by reading America's first and (in my opinion) greatest patriot Thomas Paine? Has he read the letters of Jefferson and Adams? If you asked the President who wrote Memorial and Remonstrance, aren't you certain he would be clueless? And to suggest that the President would be familiar with writings that informed the Fathers - Locke, Montesquieu, Spinoza, Voltaire, etc - can't even be taken seriously.

See? It's easy. At every turn I find that the administration is answered by the Founders.

The White House suggests the New York Times is guilty of treason for revealing that the President authorized warrantless surveillance of American citizens.

In "A Dissertation on the Canon and Feudal Law" (1765) John Adams responds:

[L]iberty cannot be preserved without a general knowledge among the people, who have a right ... to knowledge ... and a desire to know; but besides this, they have a right, an indisputable, unalienable, indefeasible, divine right to that most dreaded and envied kind of knowledge, I mean, of the characters and conduct of their rulers. Rulers are no more than attorneys, agents, and trustees for the people; and if the cause, the interest and trust, is insidiously betrayed, or wantonly trifled away, the people have a right to revoke the authority that they themselves have deputed, and to constitute abler and better agents, attorneys, and trustees ...

The stale, impudent insinuations of slander and sedition, with which the gormandizers of power have endeavored to discredit your paper, are so much the more to your honor; for the jaws of power are always opened to devour, and her arm is always stretched out, if possible, to destroy the freedom of thinking, speaking, and writing.

And if the public interest, liberty, and happiness have been in danger from the ambition or avarice of any great man, whatever may be his politeness, address, learning, ingenuity, and, in other respects, integrity and humanity, you have done yourselves honor and your country service by publishing and pointing out that avarice and ambition. These vices are so much the more dangerous and pernicious for the virtues with which they may be accompanied in the same character, and with so much the more watchful jealousy to be guarded against.

"Curse on such virtues, they've undone their country."

Be not intimidated, therefore, by any terrors, from publishing with the utmost freedom, whatever can be warranted by the laws of your country; nor suffer yourselves to be wheedled out of your liberty by any pretences of politeness, delicacy, or decency. These, as they are often used, are but three different names for hypocrisy, chicanery, and cowardice.

The White House asserts that its war powers are without bounds.

James Madison answers in Federalist #47:

The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.

The President claims violating FISA was necessary for national defense and that he is thus justified for acting unilaterally.

George Washington, in his Farewell Address (1796) disagrees:

It is important, likewise, that the habits of thinking in a free country should inspire caution in those entrusted with its administration, to confine themselves within their respective constitutional spheres, avoiding in the exercise of the powers of one department to encroach upon another.

The spirit of encroachment tends to consolidate the powers of all the departments in one, and thus to create, whatever the form of government, a real despotism. A just estimate of that love of power, and proneness to abuse it, which predominates in the human heart, is sufficient to satisfy us of the truth of this position.

The necessity of reciprocal checks in the exercise of political power, by dividing and distributing it into different depositaries, and constituting each the guardian of the public weal against invasions by the others, has been evinced by experiments ancient and modern; some of them in our country and under our own eyes. To preserve them must be as necessary as to institute them.

If, in the opinion of the people, the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed. The precedent must always greatly overbalance in permanent evil any partial or transient benefit, which the use can at any time yield.

We are told that we are being paranoid for worrying about "phantom" liberties being lost.

In "Memorial and Remonstrance" (1785), James Madison tell us:

[I]t is proper to take alarm at the first experiment on our liberties. We hold this prudent jealousy to be the first duty of citizens, and one of [the] noblest characteristics of the late Revolution.

We are told that terrorists do not have rights.

Thomas Paine in Dissertation on the First Prinicples of Government (1795) advises:

An avidity to punish is always dangerous to liberty. It leads men to stretch, to misinterpret, and to misapply even the best of laws. He that would make his own liberty secure must guard even his enemy from oppression; for if he violates this duty he establishes a precedent that will reach to himself.

We are told we should trust that the President will not abuse the unchecked powers he claims to have.

Thomas Jefferson tells us, in " Bill for a More General Diffusion of Knowledge" (1778) :

Experience hath shewn, that even under the best forms of government those entrusted with power have, in time, and by slow operations, perverted it into tyranny.

Jefferson reiterates and expands on this sentiment in the "Kentucky Resolutions" (1798):

[F]ree government is founded in jealousy, and not in confidence; it is jealousy and not confidence which prescribes limited constitutions, to bind down those whom we are obliged to trust with power: that our Constitution has accordingly fixed the limits to which, and no further, our confidence may go ... In questions of powers, then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution.

And John Adams, writing in his Notes for an Oration at Baintree (1772) adds:

There is danger from all men. The only maxim of a free government ought to be to trust no man living with power to endanger the public liberty.

Several days after a Senate Judiciary Committee hearing into the nature of the NSA surveillance program begins Bush announces that a 9/11 style attack on LA was prevented in 2002.

James Madison, anticipating this tactic wrote in 1798 to Thomas Jefferson:

Perhaps it is a universal truth that the loss of liberty at home is to be charged to provisions against danger, real or pretended, from abroad.
We are repeatedly told we are in a war, and that we will be at war indefinitely.

In the Federalist #8 Alexander Hamilton recognized that external threats can erode liberty:

Safety from external danger is the most powerful director of national conduct. Even the ardent love of liberty will, after a time, give way to its dictates. The violent destruction of life and property incident to war, the continual effort and alarm attendant on a state of continual danger, will compel nations the most attached to liberty to resort for repose and security to institutions which have a tendency to destroy their civil and political rights. To be more safe, they at length become willing to run the risk of being less free.

Then, perhaps anticipating the fear-mongering that would be done by this administration Hamilton continued:

The perpetual menacings of danger oblige the government to be always prepared to repel it; its armies must be numerous enough for instant defense. The continual necessity for their services enhances the importance of the soldier, and proportionably degrades the condition of the citizen. The military state becomes elevated above the civil.

The inhabitants of territories, often the theatre of war, are unavoidably subjected to frequent infringements on their rights, which serve to weaken their sense of those rights; and by degrees the people are brought to consider the soldiery not only as their protectors, but as their superiors. The transition from this disposition to that of considering them masters, is neither remote nor difficult; but it is very difficult to prevail upon a people under such impressions, to make a bold or effectual resistance to usurpations supported by the military power.

The administration claims that the provisions of FISA are a burden, that it needed to violate FISA to protect us.

Thomas Jefferson writing to Archibald Stuart in 1791 answered:

I would rather be exposed to the inconveniences attending too much liberty than those attending too small a degree of it.

The President asks for a military budget that in 2007 will exceed average spending from during the Cold War, despite our enemy no longer being a rival superpower, but instead being men that hijack planes with box cutters.

George Washington, America's first General and first President, upon leaving office told us:

[O]ver grown military establishments are under any form of government inauspicious to liberty, and are to be regarded as particularly hostile to republican liberty.

Most recently, Senator Patrick Roberts, redefining patriotism as cowardice, tells us "You don't have civil liberties if you're dead."

The ghost of Patrick Henry, returning from the great beyond to answer the wounded call of Lady Liberty cried out:

Is life so dear, or peace so sweet, as to be purchased at the price of chains and slavery? Forbid it, Almighty God! I know not what course others may take; but as for me, give me liberty or give me death!

These are just a few examples. But is there any doubt that the course that this administration has set is a radical departure from the vision for American that the Founding Fathers had?

Yet I know and understand how frustrating fighting for what is right can be. Thomas Paine had something to say to us as well, in Common Sense (1776):

Perhaps the sentiments contained in the following pages, are not YET sufficiently fashionable to procure them general favour; a long habit of not thinking a thing WRONG, gives it a superficial appearance of being RIGHT, and raises at first a formidable outcry in defense of custom. But the tumult soon subsides. Time makes more converts than reason.

My Ecosystem Details