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Jewish World Review Sept. 28, 2004 /13 Tishrei, 5765

Nat Hentoff

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Can government be its own watchdog? | One of George W. Bush's strengths is what you see is what you get — unlike John Kerry's expensively attired shifting personae. But civil liberties concerns ring in Bush's tin ear, as reflected by his enthusiastic support of John Ashcroft and the Patriot Act. A recent example is his executive order establishing the President's Board on Safeguarding Americans' Civil Liberties — following the recommendation of the Sept. 11 Commission.

For such a watchdog to be credible, its members have to be independent and bipartisan, as the Sept. 11 Commission was. Instead, as Richard Ben-Veniste, former member of the Sept. 11 Commission, and Penn State law professor Lance Cole pointed out in a Sept. 7 New York Times op-ed:

"All its members are from within government and almost all are from the very agencies and departments whose actions are likely to be the subject of civil liberties challenges and complaints." Adding to this Potemkin village, the board is based on Ashcroft's Justice Department!

The president should be reminded that our Constitution, the fundamental law of the land, was fully effectuated in 1791 when the first 10 amendments (the Bill of Rights) were ratified by nine states. Those amendments were mandated to protect the liberties of individual Americans from the national government.

As Laura Murphy, director of the American Civil Liberties Union's Washington Legislative Office, says of the president's venture into civil liberties: "While we appreciate the president's attention to these crucial matters, we fear this may be an attempt to avoid doing something real."

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That's a polite way of saying that the growing numbers of civil liberties' defenders in Congress — especially energized by the conservative Republican libertarians among them — will have no trouble seeing through this illusion of a presidential board. Can the government safeguard the Fourth Amendment (a person's right to be secure against unreasonable searches), when it's often charged with abusing it, as well as other civil liberties?

Also justly skeptical, to say the least, will be citizens in 356 towns and cities — across the demographic and political spectrum — that have passed Bill of Rights defense resolutions urging their members of Congress to remedy the civil liberties abuses by some of the very government departments represented on the President's Board on Safeguarding Americans' Civil Liberties. Four state legislatures (Alaska, Hawaii, Main and Vermont) have also passed similar resolutions to protect the Bill of Rights.

We are engaged in World War III against international terrorists; and as the president has said, we are fighting to protect who we are. For more than 200 years, we have defined ourselves through the values of the Constitution. Note U.S. Supreme Court Associate Justice Thurgood Marshall's famous reminder: "The true miracle was not the birth of the Constitution, but its life, a life nurtured through two turbulent centuries of our own making."

This is now our severest test as to whether we can be both a safe and free people. Obviously, government is responsible for securing our safety; but we are responsible for keeping our government within the bounds of the Constitution.

There have already been suggestions from critics to make the presidential civil liberties board nonpartisan, with more members from outside the government. And Richard Ben-Veniste and Lance Cole, in the Sept. 7 New York Times, urge that any such board must "disclose its findings to the public. ... To that end, any panel should be required to provide quarterly reports of its findings to Congress and the public." Furthermore, there must be public hearings on its findings.

But the president has already decided on the composition and scope of this watchdog board. Now, however, that Congress has awakened to its own responsibility to be accountable for safeguarding our liberties, Congress should — as the ACLU says — "move immediately to create its own civil liberties watchdog (that) should be fully independent from the executive branch, have full subpoena powers, be composed of experts in both security policy and constitutional law and be adequately resourced." Sens. Joseph Lieberman (D-Conn.) and John McCain (R-Ariz.) have submitted such a bill. This administration can't be the watchdog of our civil liberties.

The challenge to Congress is to commend George W. Bush for recognizing the vital importance of this initiative. But then, Congress can make the concept work by acting quickly on the Lieberman-McCain bill.

In an 1858 speech, Abraham Lincoln said that "it is not our frowning battlements, our bristling sea coasts, the guns of our war steamers, or the strength of our gallant and disciplined army. These are not our reliance against a resumption of tyranny in our fair land. ... Our reliance is in the love of liberty."

More and more Americans are recognizing that the guarantees of the Bill of Rights are not self-executing or self-sustaining. They need our vigilance to protect them, so that they, in turn, protect our freedoms.

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Nat Hentoff is a nationally renowned authority on the First Amendment and the Bill of Rights and author of several books, including his current work, "The War on the Bill of Rights and the Gathering Resistance". Comment by clicking here.

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