December 29, 2004

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 decree?

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 that secret.

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 on.

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 Court.

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 Patriot Act?

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 custody?

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 been lost.

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 Constitution.

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 the violations...

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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