The leaders of the Democratic majority in Congress have been so fixated on ending our war in Iraq that they have ignored their promises to repair the severe damage inflicted on the Constitution by the Bush administration. Democrats helped, for instance, pass the Protect America Act — allowing for warrantless eavesdropping on foreign suspects and also further putting Americans' Fourth Amendment and privacy rights on life support.
Now, in a full-court press to restore the Constitution and its separation of powers, the American Civil Liberties Union has begun what its executive director, Anthony Romero, calls "a 100-day campaign demanding immediate action from Congress to restore our constitutional rights." While 100 days is not nearly enough to accomplish this critical assignment, at least it's a start.
The ACLU has a large, still-growing membership, affiliates in every state and a committed national staff that has skillfully and determinedly litigated against the president's conviction that he has the "inherent constitutional power" to override Congress and the judiciary to protect national security. But much more needs to be done to restore the separation of powers.
Romero's group is charged with asking each member of Congress — including those Democrats who, like the Republicans, have been overly deferential to the executive branch on constitutional matters — to "stand up" on four critical issues: "ending warrantless wiretapping, shutting down Guantanamo Bay, restoring habeas corpus and stopping torture."
The Great Writ of habeas corpus was so subverted under the Republican Military Commissions Act of 2006, which far too many Democrats helped pass, that it endangers the habeas rights of legal immigrants here (and even American citizens) designated as "enemy combatants" for "purposely and materially supporting hostilities against the enemy."
Trust the government to decide what "purposely and materially" mean.
Among the ACLU's strategies to wake Congress up to the fundamental values we profess to the world are "newspaper and radio ads targeting local members of Congress, billboards, online strategies and grassroots pressure."
I was particularly pleased to see an ACLU ad in the hometown newspapers of Nancy Pelosi and Harry Reid that focuses a spotlight on the indifference those two pivotal national figures have for their responsibilities to protect and defend the Constitution. The ad reminds Pelosi and Reid:
"When Americans elected a new Congress in 2006, we expected the Congressional leadership to stand up to George Bush, to fight to restore the civil liberties we had lost in the previous six years. Instead, this summer, Harry Reid and Nancy Pelosi caved to yet another Bush assault on our freedoms."
The ad continues: "They've enabled a revision of the Foreign Intelligence Surveillance Act (FISA) that unbelievably gives new powers … to eavesdrop on American citizens without any meaningful court or Congressional oversight. We don't need sheep protecting the Bill of Rights. We need lions."
The ads include a drawing of two actual sheep on the steps of the Capitol building. One of the sheep is tagged "Reid" and the other is identified as "Pelosi."
The ACLU itself, however, is hardly immune to criticism for abdicating its own dedication to the Constitution. On Sept. 27, Caroline Frederickson, director of the ACLU's Washington legislative office, celebrated the passage in the Senate of a bill sponsored by Sens. Ted Kennedy, D-Mass., and Gordon Smith, R-Ore., that expands the punishment of "hate crimes." (A companion bill, introduced by U.S. Rep. John Conyers, D-Mich., has already passed the House.)
Said Frederickson: "This legislation marks a milestone for both First Amendment rights and civil rights."
"Hate crimes" laws, already in place in 45 states, provide extra prison time for defendants convicted of violent acts based on "hate" against certain protected classes of Americans because of race, ethnicity and religion. These proposed laws now include gender, gender identity, sexual orientation and disability as protected categories.
Actually, these are, despite the First Amendment, thought crimes because those convicted are further punished for their alleged biases — not solely for what they actually did. As Thurgood Marshall once warned, "Our whole constitutional heritage rebels at the thought of giving government the power to control men's minds."
As I've discovered in researching previous state and federal hate-crime laws, they give state and federal prosecutors the dangerous power to impose additional punishment for the government's interpretations of Americans' thoughts — as well as for actual crimes. I will return to this slippery slope if the president does not veto this legislation.
Nat Hentoff is a nationally renowned authority on the First Amendment and the Bill of Rights and author of many books, including "The War on the Bill of Rights and the Gathering Resistance" (Seven Stories Press, 2004).