Nat Hentoff Has His Eye on Our Eroding
Freedoms...But Do the Rest of Us?
The problem with Bush is I don't think he's ever had much interest
or education in the Constitution, let alone the first ten Amendments,
the Bill of Rights. Since he has people around him who either don't
know either, or don't care to know, well, that's the problem.
...unless the resistance succeeds in telling people what's going on,
and gets Congress and the courts to exercise the separation of powers...we
can have a generation of kids growing up into adults who will think
that these kinds of restrictions are the normal course of events. And
that will be very dangerous.
A BUZZFLASH INTERVIEW
Nat Hentoff has spent a lifetime defending the Bill of Rights and is a
widely acknowledged authority on the First Amendment. Although he did
jump into the fray of the Swift Boat attacks on John Kerry to defend John
O'Neill (the primary "Swift Boat Vet for Truth"), and has championed other
bizarre positions that disturb BuzzFlash immensely, you still have to
appreciate a journalist who relentlessly stands up to the Patriot Act.
Both a Guggenheim and Fulbright Fellow, Hentoff has written for The
Village Voice since 1957 and has an avid following for his columns
which appear in hundreds of papers nationwide. His writings on jazz are
renowned as well.
Hentoff talked with BuzzFlash in December about his new book, The
War on the Bill of Rights and the Gathering Resistance, emphasizing
our need to recognize, and halt, the erosion of Americans' cherished freedoms.
We vigorously disagree with some of the more eccentric positions Hentoff
has taken in recent years, but we have found him to be one of the most
consistent and tenacious journalists to reveal how the Bush Adminsitration
is dismantling our Constitution and our rights as American citizens.
In short, the Bush Administration, while championing liberty in Iraq (for
the cameras), is trampling on it in our own nation.
So here for our readers is the "good" Hentoff.
We'll let Nat be responsible for his "Mr. Hyde" side.
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BuzzFlash: Let's start with the question you pose in
your new book, The War on the Bill of Rights and the Gathering Resistance.
The title of Chapter 46 is: "Is Bush the Law?" Is this
Administration trying to replace the Constitution with executive branch
Nat Hentoff: Well, what this Administration has been
doing ever since soon after 9/11, with the passage of the Patriot Act
-- which they rammed through Congress with many of the Congressmen not
even having time to read it, and those who did being afraid to say anything
because they didn't want to be considered unpatriotic -- this Administration
is making up the law as it goes along. When the President said -- under
the advice, by the way, of the coming new attorney general, Alberto Gonzales
-- is that he had the right to imprison American citizens without charges,
without trial, without access to lawyers, indefinitely. At least the Supreme
Court last June said, 8 to 1, you can’t do that, you are not the law.
But they keep on doing it anyway.
One of the things that is coming up now, for example -- they're starting
to have a nationwide database of all college students, and that's never
happened before, so they can track what they're doing in school and probably
what they're doing after. And the CIA, with funds from the National Science
Foundation, has been starting to research ways to monitor the Internet
chatrooms; of course, the Chinese government is ahead of them on that.
And we have Alberto Gonzales coming in. He was the one who was instrumental
in providing the basis not only for the abuses and torture at Abu Ghraib,
but also this has been going on in other centers of interrogation in Iraq
and places that the CIA uses that we don’t even know about because they're
In fact, the term for the prisoners that Human Rights First uses – that's
the group that used to be called the Lawyers' Committee for Human Rights
-- they’re called ghost prisoners. So this Administration is essentially,
as I said, creating law, or you can also say they're creating an alternative
system of law. And since it is also the most secretive Administration
in American history, if this keeps going on -- and when the press is dozing,
as the media often is, trapped in the 24-hour news cycle, many Americans
don’t know what's happening to their laws.
These memoranda that Gonzales and other Administration lawyers put forth
-- against the strenuous dissent of Colin Powell -- violate not only the
Geneva Conventions of treatment of prisoners, but our own statute against
torture. Now how many Americans know that?
BuzzFlash: You cite countless examples of how the Bush
Administration has been undercutting the Constitution as well as the Bill
of Rights that guarantees our liberties. Do you think that the Bush Administration
would have proceeded in this course if 9/11 had not occurred? Or was 9/11
just an opportunity for them to try and rule as absolutely as they could,
Constitution be damned?
Nat Hentoff: Long before 9/11, long before Bush came
into office, there were people in the Justice Department who wanted some
level, say, of the Patriot Act, and later executive orders, but they couldn’t
quite get them in. But there was some foundation for
what John Ashcroft got into the Patriot Act -- during Clinton's Administration.
In 1990, the Antiterrorism and Effective Death Penalty Act, which Clinton
enthusiastically signed, laid the groundwork for the use of secret evidence.
And the Foreign Intelligence Surveillance Court, where there is no adversary
procedure, the FBI just comes and gets warrants, that goes back to the
court's finding in 1978. It was expanded in the Patriot Act.
Ashcroft takes credit for the roving wiretaps, where you don't have to
go to one judge in one jurisdiction -- you can get a one-stop, all nation,
wiretap. That was passed into law in the late 1990s under Clinton. So
it's not just Bush. We have had a series of Presidents, and, for that
matter, members of Congress, who are not that sensitized to the Bill of
Rights. That's why the one encouraging thing -- and I stress that in the
book -- is that these abuses of our fundamental liberties are so bad that
I don't think there’s been anything ever like this in American history.
We now have a coalition in Congress and outside Congress not only of the
traditional civil liberties groups like the American Civil Liberties Union,
People for the American Way, et cetera, but the American Conservative
Union, which is the largest sort of catch-all group of conservatives,
and the Free Congress Foundation.
An example of that coalition is that Bob Barr, who used to be reviled
by liberals when he was a member of Congress from Georgia, now works for
the American Civil Liberties Union on privacy matters and for the American
Conservative Union on Constitutional matters. I put a lot of stress on
the Bill of Rights Defense Committees, which started in Northampton, Massachusetts.
You now have over 360 towns and cities and four state legislatures putting
pressure on Congress to change some of the Patriot Act and some of the
Executive Orders, and that has had some effect.
In this new session of Congress, there will be again a number of bills
that are really bipartisan, not only by civil libertarians, but by conservative
Republican libertarians. And so there is resistance. But I wish the media
was more consistent and penetrating in letting people know what’s going
BuzzFlash: The public hasn’t reached a crescendo of outrage
over the Bush Administration's assault on our basic rights.
Nat Hentoff: Well, that's the problem of the media, in
part. I'll tell you one of the great failures of the Kerry campaign. He
occasionally made quick references to Ashcroft and the like, but he never
focused on the kinds of abuses that would affect anybody in America. For
example, I don't know how many Americans know about the National Security
letters, which the FBI puts out without going to a court. It allows them
to go to all kinds of institutions, from doctors' offices to credit card
companies, and get very personal information on anybody they want. Kerry
never mentioned that. So I can't condemn the public as a whole when nobody's
telling them what's going on.
BuzzFlash: Give us some background, as well as the significance,
of the Yasser Hamdi and Jose Padilla cases that were decided by the Supreme
Nat Hentoff: These are two American citizens. Hamdi was captured
on the battlefield in Afghanistan by the Northern Alliance, which included
various warlords, and sold to the Americans. It was never established
-- and this was made clear by the trial judge in North Carolina who looked
at the government's so-called evidence, a two-page sheet –- whether he
was firing a gun or holding a gun. The Geneva Convention says no matter
whom you catch on a battlefield, you have to determine just exactly what
he or she was doing, and that was never done.
Padilla was taken off an airplane at O’Hare Airport, supposedly having
been engaged in plans to set off a radioactive bomb. Ashcroft, who happened
to be in Moscow at the time, was so insistent on the importance of this
that he goes on national television, forgetting the presumption of innocence,
forgetting whether there's evidence of this or not -– and it turned out
there was no such evidence –- and said, oh, we have a major terrorist
now. Both of these people, for two years or more, were confined in Navy
brigs on American soil in solitude, without seeing lawyers, without even
knowing what the charges were against them. That's the background of the
Hamdi and Padilla cases.
BuzzFlash: Give us the significance, because the ruling
in the Hamdi case was 8 to 1. Just out of curiosity, who was the dissenting
Justice? Also, what was the significance of the ruling in curtailing the
Nat Hentoff: The dissenter was Clarence Thomas. The significance
of the ruling had nothing to do with the Patriot Act. This was an executive
order by Bush, all by himself, although he'd gotten advice from Alberto
Gonzales and other people in the Administration. The case was called Hamdi
v. Rumsfeld, because it was the Department of Defense, headed by Donald
Rumsfeld, that was holding him. Rumsfeld has had almost no accountability
for some of his decisions; he is a big fan of Special Forces, Navy Seals,
et cetera, and it's now turning out that they're the ones who are involved
in these interrogations and abuses of prisoners.
Finally, if the press keeps being awake on this, Rumsfeld will be asked
to be accountable, just to begin with, for the Abu Ghraib abuses. What
you've got now is what some call bad apples. Lindie England, the one who
was holding prisoners by a leash, may get eight to ten or more years in
prison, but nobody thinks of indicting Rumsfeld and his advisors in the
Defense Department who helped formulate the permission, as it were, to
engage in such tactics.
BuzzFlash: Bush says that terrorists hate our freedoms,
yet he aggressively works to limit American freedoms and liberties in
order to fight terrorists. Would you say that this is a victory for the
terrorists according to Bush's own definition?
Nat Hentoff: It's not a matter of victory for anybody.
The problem is that, from the very beginning, Bush and Rumsfeld and Ashcroft,
and even Colin Powell, were saying we are fighting to preserve our liberties.
Then part of what Bush has been saying all along is that it is our responsibility
to, as it were, export democratic precepts and rights and liberties to
countries that don't have them. But how can we do that if we're abusing
the rights and liberties of our own citizens and the people we have in
The Supreme Court in the past has pointed out, once you're in American
custody, whether you're a citizen or non-citizen, you're entitled to the
basic core of our system of justice, and that's due process, fairness.
The problem with Bush is I don't think he's ever had much interest or
education in the Constitution, let alone the first ten Amendments, the
Bill of Rights. Since he has people around him who either don't know either,
or don't care to know -– well, that's the problem. And that's why the
media is so important, and they don't always come through.
BuzzFlash: You mention the media, and there's another
element, it seems. It seems to be two-fold -– the media is not doing its
job, but another component is that the Administration is using secrecy
as its modus operandi.
Nat Hentoff: Well, secrecy obviously is intended to mask what's
going on. For example, one of the things that Ashcroft did was to make
it more difficult for the media and other people to get Freedom of Information
requests acted on. But the media, when they have the ability and the enthusiasm,
and know what their job is, they break through that. The Washington Post
has Dana Priest, for example, a reporter who's broken a lot of stories.
Other papers have done that. You don’t get much of that on cable or on
broadcast television, but the media can't hide behind the fact that all
this secrecy is going on. You can break through it. If you have any kind
of background, you have sources, and the sources have sources. I don't
have any terrible time getting what I want to find out, except nobody
yet has found out where those secret CIA interrogation centers are in
various parts of the world.
BuzzFlash: Could you elaborate on what difference it will make
replacing Ashcroft with Gonzales, considering, as you indicated, that
Gonzales ignored the Geneva Conventions protections for prisoners of war,
and other international law violations?
Nat Hentoff: One thing is, unlike Ashcroft, who is sort of a
lightning rod because of his rather confrontational nature, Gonzales is
mild mannered, soft spoken, generally referred to as a nice guy, and very
manipulative. The Democrats on the Senate Judiciary Committee have already
decided –- and I know this because I have a source there –- they are going
to confirm Gonzales. They'll ask him some questions and the like, but
they want to hold their fire until the first person leaves the Supreme
Court. And also, some of them figure, well, we lost the election; we don't
want to be seen as too obstructive too soon. So that battle has already
The best example of how awful it is to have this man as our chief law
enforcement officer: There was an article in the Atlantic Monthly
in 2003. I know for a fact that the Democrats in the Senate Committee
had this article. When Gonzales was counsel to Governor George W. Bush
of Texas -– and at the time, Bush was executing more people than any governor
of the country -– Gonzales wrote three- to seven-page memorandums. It
was the last word that the Governor had as to whether these people should
go to Death Row. They were absolutely superficial, without any questioning
of what the courts had done, and without even telling Bush that in some
of these cases there was mental retardation, wholly incompetent counsel,
conflict of interest, or other totally unconstitutional activity by the
defense lawyers and the courts. He sent them right along. Now somebody
who can do that I don't think I would trust to protect our laws and the
BuzzFlash: Is the Bush Administration strategically implementing
the cynically named Patriot Act II through separate bills to avoid the
controversy that surrounded the original leak?
Nat Hentoff: Well, again, let us not focus entirely on
the Patriot Act, because some of the stuff they've done is by executive
order. You have to watch everything they do, not just the Patriot Act.
There was an attempt to enact even more restrictive measures in what
was loosely called Patriot Act II. Unfortunately, somebody in the Justice
Department leaked that and it was posted on the Internet. But there is
legislation now, and other initiatives from the Justice Department under
Gonzales, that they will try to sneak in. Fortunately, the ACLU Washington
office, especially its legislative people like Jim Edgar, keep a very
close watch on this stuff, and they let it be known. Not all the reporters
or editors care to find out that it's available. One of the things, for
example, that they tried to push through in this 9/11 Commission law that
has just been passed -– but it was struck out because of the clamor that
came out because of the ACLU and because of some reporters, myself included
–- they had a provision in the House bill which would officially allow
detainees- – the euphemism for prisoners who are not citizens -– to be
exported, for questioning and torture, to nations that commit torture.
Now this has been going on for at least two or three years, unofficially.
The Washington Post wrote that story in 2002. But to make this
official American policy is just stunning. In the coverage of all the
debates about the 9/11 Commission bill, very few mentions were made in
any detail about this provision. They're going to try to put that back
in because the leaders of the House, like DeLay, who was involved to some
extent in this, want to put that in. Again, every chance they get, they
try to do these things.
Some of them must know what they're doing is unconstitutional, but they
probably are true believers -– but what the hell. Sure, the Constitution
and the Bill of Rights are important, but we're in a war against terrorism,
so we have to do whatever we think is necessary. But the subtext of that
is we will do it in secrecy as much as we can, because they are sensitive
to the growing resistance, and there is that resistance.
For example, some of the strongest opponents to what the Administration
is doing against the Bill of Rights are such really conservative Republicans
as C.O. "Butch" Otter of Idaho in the House, Larry Craig in
the Senate, and people, as I mentioned in the Conservative Union, the
Free Congress Foundation, and even Phyllis Schlafly’s Eagle Forum. But
I keep wishing that, for as much as we know about the Scott Peterson case
and all those trials, that the press will not be asleep on all this. They
may run something, but they don't follow up.
BuzzFlash: You have faith in the gathering resistance against
Nat Hentoff: Oh, yeah.
BuzzFlash: And you're not fatalistic. I mean, you're
very hopeful. What...
Nat Hentoff: Not very hopeful. But look, our
whole history has shown that we have often been in terrible straits in
terms of our liberties. Only seven years after the Bill of Rights was
ratified, we had John Adams' 1798 Alien and Sedition Acts, which put people
in prison –- newspaper people and citizens -– for simply criticizing the
government. Then, during the first World War, Woodrow Wilson practically
abolished the First Amendment. Then there was Joe McCarthy. All through
our history, this has gone on, but there's always been resistance and
we finally come through.
The problem here is this war on terrorism -– there's no way of predicting
how long it will last. I think it could last for maybe decades, because
the enemy is totally committed, either for religious reasons -– they've
pretty much hijacked the Muslim religion, much to the discomfiture of
a lot of Muslims –- but also for political reasons. As a result, unless
the resistance succeeds in telling people what's going on, and gets Congress
and the courts to exercise the separation of powers and make the Administration
-– the Executive Branch –- accountable, we can have a generation of kids
growing up into adults who will think that these kinds of restrictions
are the normal course of events. And that will be very dangerous.
BuzzFlash: Given the recent election and the outcome,
assuming that it's legitimate, does that in any way indicate some kind
of endorsement or agreement by the majority of Americans that they don't
mind that their liberties are curtailed?
Nat Hentoff: I think not. I think the main problem there was,
aside from a totally incompetent campaign by Kerry and the Democrats -–
I suggested in print that the Democrats, in their reconsideration of what
went wrong, should, among other things, make themselves the party of the
Bill of Rights. Most Americans will rally if they know that their liberties
are in danger.
But I think the main reason for the Administration's success in the election
wasn't the fear of terror and what was going on in Iraq. I don't think
that was tied very much to giving up liberties, first of all, because
many Americans don't know their liberties. The worst subject that is being
taught badly in American schools is the Constitution and the Bill of Rights.
There are very few courses anymore in what they used to call civics, and
those are very superficial. But people were aware of terror.
I think the main reason that Bush won -– and this is hard for people who
are on the other side to realize –- he had likability. There was something
about him that appealed to people, and something about Kerry that turned
them off. It may sound superficial, but when a guy is shown surfing or
in these custom-made suits, and all that nonsense about hunting and -–
the guy is a phony, or he looked like a phony. Believe me, that has an
effect on voters. So I wouldn't be that pessimistic.
The most important line I have ever heard about how to keep us free came
from probably the wisest person who ever served on the Supreme Court,
Justice Louis Brandeis, who, by the way, prophesied back in 1928 that
the day will come with advancing technology that the government will find
out what's in your secret notes at home without your knowing about it
–- and they can do that now because of the surveillance -– electronic
surveillance of the Internet, et cetera. But Brandeis once said, "Sunlight
is the best disinfectant." And if the media would keep the sunlight
going, and go as deep as they can –- and you can go deep, there are reporters
who are breaking these stories -– then we'll be in better shape. And if
the Democrats finally wake up and realize that they should be the party
of our liberties. But I don't see any sign of that yet.
BuzzFlash: Mr. Hentoff, thank you so much for speaking with us.
Nat Hentoff: Okay, thank you.
A BUZZFLASH INTERVIEW
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