What Does Being American Mean Now?

by Nat Hentoff

This article appeared on Cato.org on December 13, 2011. 

Soon after George Washington died, Thomas Jefferson recalled that our first president often told him "he considered the new Constitution as an experiment on ... what dose of liberty man could be trusted for his own good" ("The Meaning of Independence," Edmund S. Morgan, University of Virginia Press).

Our Constitution's Bill of Rights guaranteed our individual liberties against the government. How's it doing?
I remembered Washington's worry about how much liberty we could protect during the 11th debate between Republican candidates for the presidency when former House Speaker Newt Gingrich said of the Patriot Act (rushed so quickly through Congress after 9/11): "I'm not aware of any specific change it needs."
As has become clear, that law began the systematic attack on vital parts of the Bill of Rights by President George W. Bush and Vice President Dick Cheney, further expended by President Barack Obama. In a roaring response to Gingrich, Rep. Ron Paul reminded him: "Our early founders were very clear. They said, 'Don't be willing to sacrifice liberty for security.' Today it seems too easy that our government and our Congress is so willing to give up our liberties for our security" ("Immigration, Racial Profiling, Patriot Act Divide Republicans at GOP Debate," ABC News.com, Nov. 22).
Very easily, by a vote of 93-7, the Senate voted for amendments to the National Defense Authorization Act (Associated Press, Minneapolis Star Tribune, Dec. 2) "that would require the military to hold suspected terrorists linked to al-Qaida or its affiliates, even those captured on U.S. soil, and detain some indefinitely without trial."
And, despite George Washington's warning, this legislation also would "deny suspected terrorists, even U.S. citizens seized within the (U.S.) nation's borders, the right to trial and subject them to indefinite detention." This is America?
The 93-7 vote defied a threat of a presidential veto by Barack Obama who, since taking office, has been plundering the Constitution while also advocating preventive detention without trial. But this time he and fellow opponents, FBI Director Robert Mueller and Defense Secretary Leon Panetta, objected to giving the military such reigning authority over cases involving terrorism suspects while also dominating intelligence gathering ("Hobbling The Fight Against Terrorism," The New York Times, Dec. 7).
But, as the AP also reported, the Senate then, in a face-saving move, "backed 99-1, a measure that said nothing in the bill changes current law relating to the detention of U.S. citizens and legal aliens."
However, don't forget that 93 senators — like their predecessors right after 9/11 who zoomed through the Patriot Act — would have also abolished a series of fundamental due process rights of American citizens! Nor has Obama abandoned preventive detention as ordered by himself.
The Patriot Act itself passed the Senate 98-1. The only dissenter was Sen. Russ Feingold, D-Wis., who, on Oct. 11, 2001, on the floor of the Senate, said:
"There is no doubt that if we lived in a police state, it would be easier to catch terrorists. If we lived in a country where the police were allowed to search your home at any time for any reason; if we lived in a country where the government was entitled to open your mail, eavesdrop on your phone conversations, or intercept your email communications ... the government would probably discover and arrest more terrorists or would-be terrorists, just as it would find more lawbreakers generally" (my book, The War on The Bill of Rights and The Gathering Resistance, Seven Stories Press).
But, this lonely patriot continued, "It wouldn't be a country for which we could, in good conscience, ask our young people to fight and die. In short, that country wouldn't be America."
So here we are now when our country is not a police state — I won't be arrested for writing this — but where it can authorize the FBI to search your home without first going to a judge, and where it can open a "threat assessment" (a search) on anyone without getting a warrant. And under Bush-Cheney and Obama, the government can listen in on your phone conversations, look into your email as well as — under Obama — track you through such digital social media as Facebook and Twitter.
Before Feingold addressed the citizenry (all by himself) in the Senate, then-Senate Majority Leader Tom Daschle had instructed the Democratic caucus not to join Feingold lest the Democratic Party would lose elections for being soft on terrorism. This was patriotism?
Through the rest of his Senate career, Feingold, a true patriot, continually tried to bring back the Bill of Rights and the separation of powers into our lives. He had only limited success, but in the 2010 elections he lost his Senate seat during the Republicans' national surge.
In the present Congress, Rep. Paul is not the only defender of what we used to tell other countries were our fundamental values, but they are not a majority. One of them is his son, Sen. Rand Paul, R-Ky., who, during the debate on the Defense Authorization bill, opposed an amendment Sen. John McCain, R-Ariz., was supporting that would have permitted that American citizens suspected of terrorism would be denied a civilian trial.
"Should we err today," Rand Paul told his colleagues, "and remove some of the most important checks on state power in the name of fighting terrorism, well, then the terrorists have won" (The Hill.com, Nov. 29).
They haven't by any means. Both at home and in actual war zones, there are Americans who have not caved in. But Rand Paul is absolutely correct that "detaining American citizens without a court trial is not American."
With the 2012 elections nearing, listen carefully if any candidate for Congress or the presidency agrees with Russ Feingold and Rand Paul — or even mentions the subject.