A Running Commentary

Whatever his role as ‘leader of the free world’, President Bush has hardly been a protector of individual freedoms at home. Since initial passage of the USA Patriot Act flew unquestioned through Congress in October 2001, Mr. Bush’s administration has used the specter of terrorism to grab huge swaths of unchecked power. Now the President, unable to get an extension of the much-maligned Protect America Act last week, will pressure Congressmen throughout their 12-day recess with hopes of forcing the issue at months’ end.

Among other things, the Protect America Act allows warrantless espionage on American citizens suspected of communicating with terrorists. As part of the renewal, Bush also hopes for additional provisions of immunity to all telecom and similar companies that cooperate with the government.

If the attacks of September 11, 2001 were a national nightmare, and certainly they were, then the course of American legislative activity since has been a bad dream for personal liberty. None of this should come as a shock. History demonstrates Americans’ tendency to overreact in crisis. The Alien and Sedition Acts of 1798, Lincoln’s suspension of Habeas Corpus, and Japanese Internment camps under FDR all demonstrated a knee jerk propensity in the face of national threats.

Yet the tide of hysteria is one that historically has not only risen but also receded. The Alien and Sedition Acts, for example, was a major factor in Thomas Jefferson’s defeat of President Adams in 1800 and all but one of the Acts was shortly repealed. Ironically, only The Alien Enemies Act remained on the books, a law that’s been of significant use to the Bush Administration during the ‘war on terror’ (read the law and see why HERE).

But here we are now almost 6 ½ years after 9/11 and President Bush has lost none of his zeal for expanding unchecked Federal power. Orange alerts and clever speeches continually serve up terrorism as the unassailable rationale. Clearly terrorism poses a threat and all rational means of preventing and combating it must be utilized. What is so offensive about the President’s position is that it is unnecessary.

Take warrantless wiretaps for example. The White House fervently argues that the government must be able to act quickly to keep up with the ever-morphing network of terrorists. True. But basic principles of criminal law already give law enforcement special rights in exigent circumstances to act quickly without a warrant. Just as officials can test for levels of intoxication at the moment, rather than giving the suspect time to sober up while getting a warrant, so too should Federal officials have the right to act quickly provided they legitimately provide pre-search reasoning thereafter.

The key here is that the power needs to be checked. The government needs the people looking over its shoulder; that’s what By The People, For The People is all about. The United States was formed on the notion that putting all the power in the hands of a few without checks and balances was and is dangerous. Certainly technologies are ever advancing, and so are threats. But that does not negate the fundamental principle of government at issue here: when the people give up power, i.e. their rights, to the government, that power is to be limited to what is necessary and accompanied by checks and balances.

Given Conservatives’ traditional position of hate crimes, one would expect the President to understand this. When laws already exist to redress and punish a certain crime, the legislature need not seek ways to give the government duplicative and expanded power. Yet this administration has demonstrated an insatiable desire for executive power, a stance that can no longer be ascribed to whipping boys like John Ashcroft and Donald Rumsfeld. They are gone but the administration’s overreaching ways remain.

Even Mr. Bush’s most ardent supporters should find his bent toward expanding executive power alarming if for no other reason than his time is at an end. The two-edge sword of democracy is that powers expanded by one President pass on to the next. The President’s sacred trust to defend and protect the constitution has as much to do with safeguarding it for the long-run as with achieving immediate ends while in office.

The time for hysteria is past. Does the government need aggressive and creative tools to protect form terrorism? Absolutely. But those means must be well reasoned, checked, and balanced. If we lose our soul in defense of the republic, what good is the republic?