Bush's Redefiniton of Liberty
by Kevin

There has been a lot of criticism, from both the left and the right, of Bush's posture on civil liberties. To defenders of such liberties, George Bush's actions*, each day seems to bring new outrages, new reasons to be concerned. But there seems to be little comment on the fact that Bush's arguments, if they prevail, would radically alter the relationship between citizen and government in the most fundamental manner. Our society works under the assumption that the government derives its power from the consent of the government. The society Bush appears to be creating does not share that basic underpinning. In fact, Bush reverses that equation: people are free only to the extent that the government consents to their freedom.

Our laws are created by a body of elected officials, they are carried out by an executive whose head is elected, and they are interpreted and adjudicated by judges appointed and approved by elected officials. Broadly speaking, the people are sovereign. In order to establish a workable society, for the benefit of all, the people have agreed to give up their absolute sovereignty and be circumscribed by the collective decisions of their society. But the agreement is not a blank check to the government thus formed. Each individual, backed by the weight of a written agreement, retains the power to exercise basic rights. Those rights may be overridden only under very specific circumstances, including approval of the action by a party with, theoretically, no connection or obligation to the government organization making the request. Such request are subject to review and reversal by another set of people with, theoretically, no obligations or ties to either the people who made the request, or the person/people who approved it. The entire system is designed to limit the amount of sovereignty individuals must relinquish to the minimum required to create a functioning society, and to make sure that the "minimum required" is a level that can be challenged and adjusted by even the least among us.

Bush's actions would lead to a reversal of this structure: the government would hoard all of the sovereignty, all of the liberty, to itself. What liberty you would enjoy would only be at the sufferance of the government, subject to modification or withdrawal upon only the word of the government. In the world Bush would create, the government could, among other things, hold you without charge on the word of the executive, could hold you without telling anyone, and could circumscribe your rights without informing you, thus removing your ability to challenge such invasions. Starting with the PATRIOT Act, Bush has embarked upon a course that seems to lead toward a world in which your freedom is not a right, but and indulgence.

According to the ACLU, the PATRIOT Act does

Allow for indefinite detention of non-citizens, even if they have successfully challenged a government effort to deport them.

Minimize judicial supervision of federal telephone and Internet surveillance by law enforcement authorities.

Expand the ability of the government to conduct secret searches.

Give the Attorney General and the Secretary of State the power to designate domestic groups as terrorist organizations and block any non-citizen who belongs to them from entering the country. Under this provision, paying membership dues to such an organization would become a deportable offense.

Grant the FBI broad access to sensitive business records about individuals without having to show evidence of a crime.

Lead to large-scale investigations of American citizens for "intelligence" purposes.

By itself, the PATRIOT Act is a significant change in the relationship between government and the governed. It allows the executive branch to determine, without judicial review, that an organization is a terrorist, and thus criminal organization. Worse, such a designation has the power to criminalize - again, without judicial review or the requirement to prove that the organization is actually criminal in nature - a person for his or her association. It also allows the executive to conduct secret searches - to invade a person's property and violate their rights without giving them a chance to contest or appeal such violations. There is an argument that such searches are occasionally necessary in order to facilitate the creation of civil society. But such violations of rights should be available only in limited situations and rare in practice. The PATRIOT Act establishes a very low level of justification and expands the number of situations in which such warrants may be issued. In the same vein, it allows the government to violate an individuals privacy and monitor their business and financial activities without notification or even suspicion of criminal activity. The last is a particularly telling. The government can, without reason or review, take from an individual the most basic of rights: the right to be let alone.

PATRIOT Act was just the start. Two court cases would complete the process. First, a Circuit Court has recently ruled that secret detentions at the behest of the executive. The Court has, for now, accepted the government's argument that it should defer to the executive's judgment in matters of national security - including the treatment of prisoners. How can the governed give their consent to the actions of the government when the governed do not even know what the government is doing? And what is too keep such deference from extending to other decisions by the government? Such as holding people without charge, appeal, or access to lawyers?

Nothing, according to the government. At least, that is the government's argument in the case of Joseph Padilla. Bush's Administration is arguing that it has the right to determine - without review - whether or not a citizen is an "enemy combatant". It further reserves for itself the right to unilaterally deny such "enemy combatants" the right of habeas corpus. The Bush Administration is thus arguing that it has the power to take a citizen from the street, spirit him away, not tell anyone where he is, keep him from ever talking to legal counsel, keep him as long as it likes without charge, and never, ever allow its victim to challenge those actions.

That position is not a statement about the appropriate level of individual sovereignty to turn over to the government. It is a fundamental repudiation of the notion of the consent of the governed. It is simply not possible for the governed to consent to have all of their rights stripped away without review or appeal. Once that line has been crossed, the structure of the government has irrevocably changed. Instead of the government being a servant of the governed, the governed become servants of the government. Instead of liberty belonging to the individual and grudgingly relinquished to the necessary functions of a government, liberty would be a license from the government, subject to recall and modification upon the government's whim. Bush's definition is not a small change. Bush's definition is not a difference of degree. Bush's definition is a radical, far reaching change with the power to sweep away the foundation upon which our nation has been constructed.

Bush's definition is frightening.

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*Yes, they are his actions. Bush is the head of the Executive branch, and is therefore responsible for the actions undertaken by that branch. Ashcroft serves at George W. Bush's pleasure. If George W. Bush was not pleased, Ashcroft would not still be Attorney General

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