Commentary

Letting Guard Down Would Allow Bush to Take Away Rights and Liberties for Good

This article originally appeared in the Detroit News on September 15, 2003.

America is a great country because it is a free country. And America is a free country because our Constitution limits the powers of presidents, senators, prosecutors and police officers. If government officials had carte blanche power to wiretap our phones, search our homes and arrest our friends, our country would not be free.

Too many Americans take their freedom for granted and do not appreciate the historical achievement of the American Revolution and Constitution. The Founders shocked the kings and queens of the Old World with the “radical” idea that each individual had rights that the rulers had to respect. It is vitally important that we not lose sight of that achievement as we struggle to defend ourselves against Osama bin Laden and other foreign terrorists.

Unfortunately, many top government officials are so busy fighting our foreign foes that they have lost sight of what they are supposed to be defending. If President George W. Bush and Attorney General John Ashcroft are to be judged by their actions, and not their words, it has become apparent that they view constitutional rights to be something of a nuisance. Consider some examples.

The Fourth Amendment is supposed to protect us against unreasonable searches and seizures. And the Fifth Amendment says no person can be deprived of life, liberty or property without due process of law. Section 215 of the Patriot Act skirts those constitutional guarantees by empowering the government to demand papers, records, personal belongings from people. Unlike a subpoena or search warrant, these “Patriot orders” do not give citizens any opportunity to contest the government’s demand either before or after the fact. In fact, it is a crime to tell anyone about these orders. So if a citizen contacts his congressman to complain, he can be imprisoned.

President Bush has also declared that he can arrest any person who he thinks is a terrorist and lock them up and throw away the key. To deflect criticism, the White House says every president in every war holds enemy prisoners, so there is nothing to worry about.

In truth, the president’s sweeping claim goes far beyond the idea of taking prisoners on battlefields in Afghanistan and Iraq. President Bush’s lawyers have made it clear that it does not matter if the person is a citizen or not. And it does not matter if the person is overseas or living in Small Town, U.S.A. With the stroke of a pen, an American can lose his liberty, his right to retain a lawyer, and his right to a day in court to tell a judge his side of the story. The say-so of the president is not what the Founders meant by “due process of law.”

Some Americans say that if you haven’t done anything wrong, you don’t have anything to worry about, but they are misinformed. First, in recent years, DNA tests have proved that many prisoners were mistakenly arrested and convicted of crimes. Many of those prisoners thought they had nothing to worry about because they were innocent — and yet they served years and years behind bars with hardened criminals before the government’s error (or misconduct) came to light.

Second, how can a person persuade a judge of his innocence if the government will not allow him to see the evidence that is supposed to establish his guilt? Before 9-11, the federal government used secret evidence against noncitizens in deportation hearings. Since 9-11, there have been cases of prosecutors who are using secret evidence to arrest Americans.

Some legal scholars have noted that American courts have expanded the rights of people who are accused of crimes during the last 200 years. In some respects, that is true, but history also shows us that rights are often lost during a crisis — and that is what is happening now. The Founders of America warned us that eternal vigilance is the price of liberty. Once we let our guard down, our rights and liberties could very well slip away for good.

Timothy Lynch is director of the Cato Institute’s Project on Criminal Justice in Washington, D.C.