Reflection on Alito, the Constitution, and Civil Liberties

Does the United States face a Constitutional crisis? Journalists and scholars on the left are accused--often with some justification--of being overly eager to invoke the specter of fascism in response to the perceived abuses of executive authority. When the concept is applied too readily, the horrors of the thirties are implicitly trivialized and the particularities of our current situation are misconstrued. Nonetheless, overlapping trends in our political, judicial, and corporate worlds have reached a distinct and dangerous conjuncture.

Holding unnamed "enemy combatants" under indefinite confinement, permitting the secret torture of detainees in Iraq, and bypassing Congress in order to secretly authorize the National Security Agency to eavesdrop on American citizens constitute violations of US and international law. Nonetheless, by themselves, these actions are less troublesome than the reactions to them.

In one sense the Senate Judiciary hearings on Judge Alito could not have come at a less propitious time for the White House. Just as stories about the nature and extent of domestic wiretapping and the President's apparent end-run around procedural safeguards were peaking, the Senate was being asked to confirm a nominee whose legal career has been devoted to making the case for unlimited presidential prerogatives.

Domestic wiretaps managed to gain more media traction than earlier concerns about the Patriot Act. Members of the Judiciary Committee pointedly asked Judge Alito if the President is above the law. Alito responded that the President is not above the Constitution. His own reading of the Constitution, however, suggested few limits to the President's powers.

Nonetheless, hours after the nominee's testimony key Democratic Senators were informing the media that there was little chance of any effective opposition to the Alito nomination and that a filibuster was unlikely. The eventual attempt at a filibuster by a few liberal Democrats amounted to little more than a token bone to a few activists.

Reluctance to mount a filibuster was grounded on the perceived lack of opposition in the country. Yet there is a catch 22 here. Many Bush Republicans and their allies in the media describe the "American people" as fully willing to grant the President's right to wiretap. They cite poll data in support of their claim. As with all polls, however, the devil lies in how the question is asked. Polls also show that a majority of Americans object to warrantless eavesdropping in violation of existing Federal law.

An opposition party that was a genuine opposition would use such a confirmation hearing and the NSA contest as an occasion for a broad debate about the role of civil liberties, even in a national emergency. Such a debate would have been an occasion for citizens to develop and clarify their own views on civil liberties and political speech. The vacillation and lack of unity among the "opposition" Democrats made it easier for most Republican moderates, including Senators Snowe and Collins, to side with the hard right of their party.

With Congress increasingly failing to reflect the range of concerns in the country at large, respect for politicians and a willingness to engage in politics wanes. A vicious circle emerges. We now face an Administration that regards itself as the sole interpreter of domestic surveillance protocols, an increasingly docile Supreme Court, and a Democratic Party more interested in soldiering in the terror war than in the democratic principles for which that war is presumably being fought. Our democracy may be undergoing subtle but dangerous shifts. The situation is compounded by a majority of media that in response to years of right-wing attacks and growing corporate consolidation have become ever less willing to challenge the President. To this trend, we can add the growing banks of information that credit card companies, libraries, airlines etc. accumulate on their private customers and the ready access government has to such data.

Nonetheless, many ordinary Americans resent being spied upon. I have been surprised by how many of my often relatively apolitical neighbors have commented with alarm on this story. The internet has become one reasonably effective tool for mobilization on behalf of civil liberties and anti-war concerns. The very failure of the Administration to deliver on behalf of its promises may also open some space. Stay tuned, and more importantly, stay active.

Correction: I made an error in my January 24 column on the Canadian elections, as some of Common Dreams alert Canadian readers have correctly pointed out to me. I said voter participation in the last election was about 60%. I was relying on a figure in the Toronto Star, which turned out to be a preliminary estimate. The final number, which I confirmed in a conversation with Elections Canada, was about 65%, higher than in recent elections but still substantially below levels routinely achieved in the sixties through early nineties.