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Nat Hentoff on America's War Against the Constitution

By Nat Hentoff

While battling the FBI's expanded surveillance guidelines, Sen. Russ
Feingold, D-Wis., also revealed (Daily Kos, Oct. 8) that in the Senate
Judiciary Committee review of the Patriot Act (also Oct. 8), Republicans
protecting the Act were joined, in a closed-door classified session, by Obama
officials with amendments further preserving it. Then, in a public session, all
but three Democrats voted for a watered-down "compromise" bill by Patrick Leahy
and Diane Feinstein.

Feingold, Dick Durbin, D-Ill., and new Democrat Arlen Specter (Pa.) had the
constitutional courage to oppose the Judiciary Committee bill eventually going
to the floor that, with few exceptions, leaves the Patriot Act intact. I'll be
reporting on the crucial fight to bring the Bill of Rights back into the Patriot
Act as Senate and House versions merge into a law to be signed by Obama as he
continues the Bush-Cheney legacy.

It was Feingold who, in October 2001, was the only member of the Senate to
vote against the original Patriot Act as, on the floor, he accurately predicted
our greatly weakened privacy, due process and other rights since then.

He is not giving up. "In the end," Feingold says. "Democrats have to decide
if they are going to stand up for the rights of the American people" or (for
recent example) "allow the FBI to write our laws."

As I have reported, the FBI is already writing our laws — without going to
any judge. How much have you seen about the FBI's locking up of the Fourth
Amendment on cable and broadcast television (from the right- or the left-leaning
stations) in newspapers, on the Internet or, of course, from the Democratic
Congressional leadership, Harry Reid and Nancy Pelosi, characteristically
indifferent to the Bush-Cheney-Obama assaults on the Bill of Rights?

When were the first FBI guidelines on domestic surveillance and why? In the
1970s, Sen. Frank Church of Idaho, chairman of a Senate Committee on
Intelligence Activities, exposed FBI Director J. Edgar Hoover's COINTELPRO
(Counter-intelligence Program) as an omnivorous surveillance operation that
aimed squarely at preventing Americans "exercise of First Amendment rights of
speech and association."

If Big Brother is always watching you, you become careful of what you say and
with whom you associate.

The Church committee's revelations resulted in the then-attorney general,
Edward Levi (a former professor of constitutional law), and Congressman Don
Edwards formulating the first FBI guidelines specifically faithful to the

When I was reporting on Edwards' congressional service (1962 to 1995), I
often described him as the "The Congressman from the Constitution." As chairman
of the House Subcommittee on Civil and Constitutional Rights, Edwards, a former
FBI agent, set standards for congressional oversight of the FBI. Under
Presidents George W. Bush and Barack Obama, these standards have become

"No federal agency," said Congressman Edwards, "the CIA, the IRS, or the FBI,
can be at the same time policeman, prosecutor, judge and jury. That is what
constitutionally guaranteed due process is all about. It may sometimes be
disorderly and unsatisfactory to some, but it is the essence of freedom."

The Constitution, Edwards continued, does not permit "federal interference"
with Americans' speech or associations, and other such citizen constitutional
rights, "except through the criminal justice system, armed with its ancient
safeguards." Like mandated judicial supervision — absent from current Obama
administration FBI surveillance guidelines.

Edwards regarded as "subversive" the "notion that any public official — the
president or a policeman — possesses a kind of inherent power to set aside the
Constitution whenever he thinks the public interest, or 'national security'
warrants it."

Don Edwards represented the Constitution we are losing.

Any of the Senate or House members representing you? Unhesitatingly, I
nominate Sen. Russ Feingold of Wisconsin.

It was in 2002 that I asked Don Edwards what he thought of the then
Bush-Cheney definition of the Bill of Rights. "Locking people up," he began,
"citizens or noncitizens, without being charged and without access to a lawyer
is wrong." But our Nobel Prize-winning President Obama is seriously considering
"permanent detention" of terrorism suspects who cannot be tried in court because
of the tortures they have undergone under American custody. This same president
does not object to the current warrantless FBI surveillance of Americans without
evidence, for reasons of "national security."

See the article at Cato's website.


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