February 19, 2010

FOUND: U.S. Constitution

... by Walter Brasch

Sarah Palin stood before an audience of 600 at the first Tea Party convention and in her twinkly home-spun rhetoric declared we don't need a professor of law but a commander-in-chief. As expected, she received roaring applause. And, as expected, she was wrong.

After Dick Cheney and George W. Bush, aided by a compliant Congress and a nation largely afraid to stand up for their rights, abused the Constitution for almost eight years, what the United States needs is a leader who understands constitutional law and who is unafraid of making sure all Americans understand that the fabric that became America should not be torn apart for political convenience.

Dick Cheney and George W. Bush established policies which violated:

  • The First Amendment (freedom of religion, speech, press, and assembly, and the right to petition the government for a redress of grievances)

  • The Fourth Amendment (freedom from unreasonable searches)

  • The Fifth Amendment (right of due process and to protect against self-incrimination)

  • The Sixth Amendment (due process, the right to counsel, a speedy trial, and the right to a fair and public trial by an impartial jury)

  • The Eighth Amendment (reasonable bail and freedom from cruel and unusual punishment), and

  • The Fourteenth Amendment (equal protection guarantee for both citizens and non-citizens)

Bush–Cheney Administration actions also violated provisions of Article I, Section 9 of the Constitution which guarantees the right to petition the courts to issue a writ of habeas corpus to require the government to produce a prisoner or suspect in order to determine the legality of the detention. Only Congress may order a suspension of habeas corpus, and then only in “Cases of Rebellion or Invasion.” Congress did not suspend this right; nothing during or subsequent to the 9/11 attack indicated either a rebellion or invasion under terms of the Constitution.

It wasn't just liberals who argued about Constitutional violations. Many leading conservatives argued that the Bush–Cheney Administration overreached in its lame attempt to "keep America safe." Among those conservatives who objected were Bob Barr, Grover Norquist, Alan Caruba, and William F. Buckley, the founder of modern conservative thought. Also objecting to the wide-reaching policies of the Bush–Cheney Administration were federal courts, including the Supreme Court of the United States, which leans to the right.

In Hamdi v. Rumsfeld (2004), Justice Sandra Day O'Connor, who had been nominated for the Court by Ronald Reagan, was forceful in her majority opinion, which attacked Bush–Cheney Administration policies. According to O'Connor:

It is during our most challenging and uncertain moments that our Nation's commitment to due process is most severely tested; and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad. . . . The imperative necessity for safeguarding these rights to procedural due process under the gravest of emergencies has existed throughout our constitutional history, for it is then, under the pressing exigencies of crisis, that there is the greatest temptation to dispense with guarantees which, it is feared, will inhibit government action. . . . It would indeed be ironic if, in the name of national defense, we would sanction the subversion of one of those liberties, which makes the defense of the Nation worthwhile.)

A large population of misinformed citizens—including leading politicians, pundits, and blowhards—claim even if everything else was true about protecting rights during times of war, the Constitution protects only American citizens and not foreigners. The Supreme Court has several times ruled otherwise. In 1886, the Supreme Court, in its Yick Wo v. Hopkins decision, reaffirmed the principle that the Constitution protects all persons, even foreigners, in U.S. jurisdiction. More than a century later, in Boumediene v. Bush (2008), the Supreme Court ruled that the right of habeas corpus applies to all persons, even terrorists confined in Guantanamo Bay. Not one of the nine justices, or even the Bush–Cheney Administration itself, disagreed with that principle. The only dissent was that such prisoners were on foreign soil and outside the jurisdiction of the Constitution; the Supreme Court ruled that the Guantanamo Bay Naval Base was on U.S., not Cuban, soil.

And now in an interesting twist of logic come the Teabaggers, who continue to claim that not only doesn't the Constitution apply to foreigners but that they want to impeach President Obama because he violated Constitutional rights. Alas, they can't provide specific instances that will hold up in any federal court. But, like much of what the Tea Party zealots say, it makes good rhetoric, and the mainstream media, often without challenge, publish and air their views to a mass audience.

But Sarah Palin and the party who loves her demand that this nation get rid of its professor of constitutional law and replace him with a man who is a true blue, 100 percent all-American commander-in-chief. You know, the kind who sends American forces into Iraq to chase mythical weapons that don't exist, and then claims at least his invasion got rid of a dictator. The kind who costs more than 4,000 American deaths and more than 30,000 injuries, many of them permanent. The kind who doesn't give the troops the armament and protection they need while in battle, and then the rehabilitation they need when they can no longer fight.

In case Sarah Palin didn't read the Constitution, President Barack Obama is the president of the United States and the commander-in-chief of the nation's military. The biggest difference is that this president and commander-in-chief is just as aggressive in protecting the principles of the Constitution as he is in protecting the safety of the American people.

[Walter Brasch is the author of 17 books, including the national award-winning America's Unpatriotic Acts: The Federal Government's Violation of Constitutional and Civil Rights and Sinking the Ship of State: The Presidency of George W. Bush, available at amazon.com, bn.com, and numerous independent and chain stores. Dr. Brasch is professor of journalism at Bloomsburg University. You may contact him through his website, www.walterbrasch.com or by e-mail at brasch@bloomu.edu]

Posted by Walter Brasch at February 19, 2010 09:45 PM | Guest Writings | Technorati links |

When Republicans upheld their Article 1, Section 7 responsibilities when in the majority, they've had both deficits and surpluses. When Democrats held those very same responsibilities, they've only provided deficits. One would have to go back to the very beginning of JFK's administration to find anything different. And believe me, these Democrats wouldn't know those Democrats, many great in memory.

Read anything from Professor Phil Jones lately? And who is PM Zapatero blaming this week for his failures?

Posted by: peter at February 21, 2010 11:22 AM

Thanks for reminding me of one of the good reasons to approve of Barack Obama's presidency.

Posted by: Flo at February 23, 2010 10:26 AM

Yeah Flo, clearing those Bush DOJ lawyers of any charges prosecution for war crimes sure is a relief. Way to go Holder!!!!

More troops for Afghanistan, more attacks by the drones on unsuspecting criminals in Pakistan. More reasons to be thankful!!!

Additional wiretaps, enhanced listening into all American's calls. Oh happy days are here again!!!

Thanks Flo for getting him there to become the third Bush admin.

Posted by: peter at February 23, 2010 06:34 PM

Shadows. The Republicans have become a shadow party.

We saw extensive evidence of this during the Bush/Cheney years in which there were actually two governments at the federal level: the official for-public-view Bush/Cheney executive branch and the shadowy, unofficial, not-for-public view Bush/Cheney executive branch.

All the criminal abuses listed in this excellent post were signs of the shadowy, un-official, not-for-public-view Bush/Cheney executive branch. Torture. Secret rendition to secret detention sites overseas. GITMO. Secret killings of detainees in U.S. custody by both official government employees and unofficial private contractor torturers-for-hire-and-for-profit.

Along with, secret surveillance of U.S. citizens. Illegal warrantless wiretaps. Hatch Act-violating hirings throughout all executive branch departments. Outing covert CIA agents. Secret no-bid contracts. Pre-Iraq War secret conspiracy/communications between Bush and Blair. Secret Cheney energy task force meetings.

The secretive Bush/Cheney shadow government did all these things (to name just a few) while trashing the U.S. Constitution, the Geneva Conventions and federal statutes.

I had expected the Obama administration to throw open wide the windows of the White House, letting in fresh air and sunlight, to air out and shine away the evil shadows of the previous hardcore, right-wing, fascism-leaning administration, prosecuting to the fullest extent of THE LAW any and all members of the shadow Bush/Cheney government, both official and unofficial.

But just like in the case of this ongoing healthcare reform debacle (no public option, no universal single-payer, limited cost controls, limited competition, limited cost savings), my expectations have fallen far short...and conservative shadows continue to stalk the halls and darken the air of our federal government (to say nothing of the stalking and darkening of our nation's air by Faux News and the Tea Partiers). Where are the representatives of LIGHT when we need them?

Posted by: The Oracle at February 27, 2010 06:45 PM