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With Liberty and Justice for All-Even Republicans

Aug 17, 2007
The purpose of this piece is to reassure its readers (and perhaps, its author), that civil liberties are not a concern relegated solely to the opponents of the Bush White House. Let me start off this essay by incurring much wrath in clearly identifying myself as a lifelong Republican, and a supporter of this Administration's policies in the Middle East and in Iraq, in particular. Those whose judgment is so driven by obsessive hatred of George W. Bush that they prefer to see the failure of American interest in the international arena, than to endure a scintilla of success for Team Bush should, in any rational world, be ashamed of themselves for their lack of patriotism, to say the least. In addition, the readiness of some to declare his policies a failure smacks of intellectual dishonesty. Any student of history worth his or her salt knows that the success or failure of a policy-ANY policy-is not evident for at least fifty years, or more. Alas, however, we do not live in a rational, or an intellectually honest, world.

In spite of my political leanings, it is an unfortunate reality that our President is a divisive figure. Part of this is a function of his inability to project intelligence, and the resultant, and mistaken public impression (reinforced relentlessly and cynically by his detractors) of him as shallow and, indeed, stupid. I am naive enough to believe that idiots don't make it to the White House, and that this President suffers merely from an enhanced form of his father's estrangement from, and lack of fluency in, the English Language. That, coupled with a Texas drawl, a goofy grin and an inability to put forth bon mots in a spontaneous way, leaves the American public with a perception of him as something of a dimwit. Those who know the President personally (I am not among them) know this to be false. I agree wholeheartedly, in large measure because I have seen the man's work and am, for the most part, satisfied with it. Irrespective of the views of both his supporters and detractors, history, most importantly, will judge him on his deeds and not on his media-created (or distorted) image.

Add to this a genuine weakness of this President: his apparent reliance on personal friendship and trust, in lieu, sometimes, of good independent judgment, and his willingness to subscribe to secrecy and close counsel for its own sake, and his constituency is left to wonder: "what is this not-very-intelligent guy up to? Perhaps he really does mean to drop a few nukes on Iran." Now, as viscerally satisfying as "dropping a few nukes on Iran" may seem to some of us, it is probably bad policy, and even worse policy to leak to the media that it is even being considered.

Putting all of that to the side, however, and given this writer's support for the War on Terror and the Bush policies in Iraq, what concerns me the most is the utter lack of public discourse on the real issues which arise from these policies. I refer, of course, to the price demanded of our civil liberties and the evolving change of balance as between our rights and the powers ceded to law enforcement. And when I allude to public discourse, of course, I am not referring to the debate among the talking heads on Washington Week in Review, and its three or four weekly viewers, or the weekly bloodsport/screamfest-passing-for-discussion known as The McLaughlin Group. Rather, I am wondering: what happened to the "public" in public discourse? In the middle of a war, in the midst of a crisis in which the "President" of Iran speaks of wiping Israel off the map, and at a time in which the arrogation of power to law enforcement has resulted in so-called "free speech" zones at which the public may gather to express their displeasure with government policy, the public discourse devolves into discussion of such earth-shattering concerns such as who will prevail on American Idol, or who will be America's Next Top Model.

I am sure, perhaps with some justification, to be accused of intellectual snobbery in appearing to suggest that entertainment and silly diversion has no place in the midst of international crisis. That is not my contention. Indeed, we are nearly always in some international crisis, or other, and people-ALL people, virtually-need diversion from the horrors that face us as members of the human race. We certainly cannot reasonably be expected to devote all of our waking hours to consideration of the horrors of Darfur or the likelihood of a viable nuclear capability in the hands of Pyongyang. That way, of course, lies madness. No, we need Desperate Housewives. We must have Entertainment Tonight. And the goings-on of Scientologist cum Philosopher Tom Cruise as well as the canoodlings of the moment by Lindsay Lohan and her partying in the "boite de jour" with her Mom (am I the ONLY one who finds that more than mildly disturbing?) are of inestimable importance to our national consciousness.

But even allowing for all that, the question remains: why is the public largely apparently indifferent to the invasion of its constitutional liberties? Is it ignorance? Cynicism? Or worse, have we, by silence, tacitly consented to a fundamental shift in our relationship with our government as the payment for the perception (valid or not) of greater personal and national security. I would like to think that ignorance is the culprit, simply because that cause is most readily remedied by a concentration of concerned individuals screaming loudly enough to be heard above the fray of: "would you like fries with that?" Cynicism is a tougher nut to crack, suggesting, as it does, that people have considered the problem, to a greater or lesser extent, but feel themselves so disenfranchised and removed from the scions of power that any efforts would surely prove fruitless. The consent argument is most troubling of all, because it implies that those principles for which our founding fathers bled, and upon which this country stands, are really not very important to us, at least not at the moment the chips are down.

There are, to be sure, legitimate arguments for encroachments upon liberties in times of war. Every schoolchild knows (or would know, if our schools were doing their job) that good old Abe Lincoln suspended the writ of habeas corpus for a time during the Civil War. Parenthetically, the rectitude of that action is still a subject of great debate among historians and constitutional scholars. Japanese-Americans were sent to concentration camps after Pearl Harbor (there's not much debate about the moral defensibility of that action). And now, of course, we have issues such as the various provisions of the Patriot Act, the prospect of secret military tribunals, domestic spying and indefinite detention without trial at "Gitmo." Are all these things a clear and present danger, per se, to our freedoms which must be fiercely resisted? Not necessarily. It should be pretty obvious to most people that military activities cannot be prosecuted effectively without a high level of secrecy. Interrogation of enemy operatives, especially in the terror milieu of the Middle East, cannot be accomplished entirely according to the Marquis of Queensbury Rules (there is, of course, a large gulf between fully according due process to enemy combatants and engaging in outright torture, notwithstanding the arguments of the "slippery slope-ists").

No, my objection is to the lack of open discussion of these issues. It may be that national security requires that everyone open their bags for inspection as they enter the New York City Subways. It is a debatable proposition whether ethnic profiling for air travelers ought to be a tool available to law enforcement. It may be uncomfortable for some to hear, but it is nevertheless a fact that the horrors of September 11 were perpetrated by Arab Muslims, as has most (not all, to be sure) international terrorism in recent years. Our population needs to be protected by its government and military. Our borders need to be secure (we're certainly doing a pretty poor job on that front). But the point is that these subjects need to be discussed, debated and yes, screamed about in the public domain, on the street, on blog sites, and around the office water coolers. Most of what I hear in those precincts concerns the latest episode of The Sopranos. (Not that the charms of that show are lost on me. Indeed, I have not missed a single episode of the five or six seasons of that show since it began airing some 27 years ago).

Long ago, we gave up any real right to privacy in this country. Madison Avenue saw to that, with its wholesale trading of customer lists and accompanying marketing data. What little was left was taken by the credit card companies, the internet and spammers. Commercial television ads for heated K-Y Jelly suggesting that we "see where it leads" followed by a knowing wink, have certainly removed what very little was left of the surprise and mystery of the bedroom for those of us who have not already been bombarded by internet porn over the last few years.

What, then, is left to us? Some of our allegedly constitutionally protected rights devolve from the implied right to privacy, to be found in the Bill of Rights. These include reproductive rights and, in recent years, newly "discovered" rights concerning sexual conduct. We still have some protections under the Fourth Amendment against unreasonable searches and seizures, but domestic spying is a potential threat to that. Do we want to do anything about that? Up to now, America's answer has been.....silence. Other provisions of the Bill of Rights give us the right to counsel and trial by jury as well as the right to confront our accusers. Secret military tribunals put those rights at risk. Should we care? Do we care? Survey says???........{Yawn}. Maybe our national security and defense do, indeed, demand the sacrifice of these rights. Maybe not. But the prospect of losing what little we have left of our Constitutional legacy because we are asleep at the switch is a horrifying proposition, to say the least. If we are going to cede these rights to our government in the name of safety and security, we ought to do so consciously. Security and freedom have always worked in inverse proportion. This is basic and self-evident. It has always been the fundamental mission of this Republic to find the ideal balance. I am sorely afraid, however, that we have stopped looking for it. There are a few (very few) people who seem to care. Unfortunately, and embarrassingly to me, personally, they are overwhelmingly to be found on the left. During the 2004 Presidential Election, when President Bush was making campaign appearances, there were, not surprisingly, anti-Bush demonstrators at most major venues. The security people assigned to the campaign designated so-called "free-speech" zones, usually many blocks from the site at which the President was to appear. In the most quotable line in many years, in this writer's opinion, a woman (to whom I apologize for not knowing her name and thus, not being able to attribute the quote), said: "I thought this WHOLE COUNTRY was a "free speech zone!""

Alas, however, those sentiments are few and far between. And regardless of whether we vigorously support or actively oppose the foreign policy of this Administration, we have a profound duty to ourselves, our children and our national legacy, to exercise that atrophied muscle we call "freedom of speech" and publicly, and in the harsh light of day, examine what price we are willing to pay in order to keep it, together with the other liberties we routinely take for granted.

Where is the outrage, people?
About the Author
Warren R. Graham is an attorney with the New York Law Firm of Cohen Tauber Spievack & Wagner LLP. He specializes in the field of Bankruptcy and Creditors' Rights. Additional professional information on him may be found at http://www.ctswlaw.com.
E-mail: wgraham@ctswlaw.com
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