Here I Am

Okay, Bill, here I am.

Last week on The O'Reilly Factor you promised you'll be investigating ACLU donors in the coming weeks because "[n]o organization in America enables terrorism as much as the ACLU, period."

Why not start with me?

I had never given much thought to the ACLU before September 11, 2001. Yes, the organization's commitment to free speech for all was laudable, and their willingness to protect the rights even of pariah groups like Nazis and NAMBLA remarkable. But I was happy to let them do their job without my active involvement. After all, the threats they battled didn't really threaten me, did they?

Then I noticed some unsettling signs in the aftermath of 9/11. First came the USA PATRIOT Act, with provisions expanding the government's power to seize financial records and other information while reducing or even eliminating judicial oversight. Then the news that the Justice Department had authorized eavesdropping on previously sacrosanct attorney-client conversations. Then the Executive Order in which President Bush claimed the right, essentially at whim, to hold non-citizens in detention and potentially subject them, with no possibility of appeal, to a death sentence determined by a mere two-thirds vote of a military tribunal.

Was I the only person who remembered junior-high civics? Separation of Powers? Checks and Balances? The notion that the police could obtain a warrant to search and seize my records on the basis, not that there was probable cause I had committed a crime, but simply that the search was "relevant" to a terrorism investigation—and that, furthermore, it would be a crime even to reveal that such a search had taken place—seemed wrong somehow. Un-American. So did the idea that any one man, no matter how well placed, could arrogate to himself the power of determining who was to be tried and how they were to be punished. Was this the "government of laws, and not of men" that John Adams had written about? Had the Founding Fathers labored in vain?

It turned out that other people noticed too, and not all of them on what you would call the "loony left". Bob Barr, the conservative ex-Senator from Georgia who had voted for the PATRIOT Act while in Congress although he disagreed with some of its provisions, joined the ACLU "to work on informational and data privacy issues."

Barr . . . said that real problems with government anti-terror efforts exist, uppermost of which is the huge amount of authority federal law enforcement and intelligence agencies have to gather personal information on people who have nothing to do with criminal activities.

William Safire, no bleeding heart, went so far as to label the Executive Order a seizure of "Dictatorial Power" and the proposed military tribunals "kangaroo courts" which

can conceal evidence by citing national security, make up its own rules, find a defendant guilty even if a third of the officers disagree, and execute the alien with no review by any civilian court.

No longer does the judicial branch and an independent jury stand between the government and the accused. In lieu of those checks and balances central to our legal system, non-citizens face an executive that is now investigator, prosecutor, judge, jury and jailer or executioner. In an Orwellian twist, Bush's order calls this Soviet-style abomination "a full and fair trial."

You see, Bill, I grew up believing, I think like most Americans, that America's founding principles were essentially right. The powers of government justly derive from the consent of the people, but the people's liberty must at the same time be protected against the misuse of government power. Thus there really is a need for checks and balances between the branches of government. There really is a need for due process of law before any person is deprived of life or liberty. There really is a need to protect minority rights against the claims of an inflamed majority.

So I joined the ACLU. No one else was in a position to mount an effective legal challenge to the post 9/11 excesses of George Bush and John Ashcroft. If I wanted to live in the America I had grown up believing in, I needed the ACLU to help make it happen.

If anything, events since then have shown how right I was. Although the Justice Department claims that some of the PATRIOT Act's most worrisome provisions have not been used (yet), Congress is now working not only to make them permanent but to expand them.

The military tribunals at Guantánamo Bay seem to be every bit as bad as Safire predicted. Earlier this year, legal analyst Andrew Cohen described one case where a detainee had to respond to charges of associating with a known al Qaeda operative without knowing the details of the charge, including the alleged associate's name. That particular piece of information was classified. Cohen commented,

Fifty years after Joe McCarthy, and 70 years after the Soviet-style trials that inspired George Orwell, the Star Chamber is back, Cuban-style, in the name of protecting freedom and liberty. This is what we are fighting for?

Finally, the outrages at Abu Ghraib and Guantánamo Bay were a direct outgrowth of the decision to deny Geneva Convention protections to U.S. prisoners, which in turn depended partly on the Justice Department argument, approved by Alberto Gonzales when he was White House Counsel, that the President is above the law. You claim that the ACLU's attempts to publicize the abuse of detainees in U.S. custody will aid terrorist recruitment, but surely Al Jazeera and other foreign news organizations have already broadcast the stories of mistreatment told by released prisoners. What the ACLU is doing is bringing this behavior to the attention of Americans, whose refusal to countenance what's being done in their name is the only hope for putting a stop to it. Can it hurt America's prestige in the world to be seen actually living up to our rhetoric?

The fact is, Bill, that the terrorists can kill some number of us, can destroy trains and planes and buildings, but they can't touch the legacy of America's Founders or threaten our 216-year history of Constitutionally-protected civil liberties. They can't force us to abandon our deepest principles. Only our own government can do that, and it seems to be trying.