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Gonzales's Constitution Day Gift to The United States

Hope Marston and Ben Grosscup

Constitution Day (September 17) will be an especially fitting day for Attorney General Alberto Gonzales to officially leave office. He has been one of the many administration officials deeply involved in shredding constitutional protections of our basic rights, and his personal involvement has been extensive:

The Fourth Amendment

Gonzales helped cover up abuses of National Security Letters (NSLs), administrative subpoenas whose power was extended by the PATRIOT Act. By issuing an NSL, any of the 56 FBI field supervisors can demand massive numbers of records on individuals from businesses, banks, telephone companies, libraries, and Internet service providers - and all without any court oversight. According to the March 2007 Inspector General's report, the FBI claimed that many of the NSLs it issued between 2002 and 2005 were pertinent to "emergency situations" when no emergency existed. Moreover, the records sought from 2003 to 2005 through NSLs were far more likely to pertain to U.S. persons than to suspected foreign terrorists or spies, and their use was not accurately reported to Congress. Though FBI records show that Gonzales knew of the chronic abuse of NSLs during the debate over reauthorization of the USA PATRIOT Act, he told the Senate in April 2005 that the FBI had not committed "one verified case of civil liberties abuse" after 2001. However, FBI abuses violate the Fourth Amendment protections from government searches and seizures without warrants or probable cause. In the face of the federal lawlessness that Gonzales has upheld, the communities of Brighton, New York, and Eureka Springs, Arkansas, have passed resolutions stating the local governments' refusal to accept any NSLs it considers illegal.

Gonzales has adamantly defended the executive branch's illegal warrantless wiretapping program conducted by the National Security Agency. Gonzales and others in the administration have continually refused to provide Congress with documents written at the origin of the program, so Congress can conduct adequate oversight. Before the Police America Act (euphemistically titled the "Protect America Act," PAA), government programs that wiretapped Americans' phone calls and electronic communications without a warrant were illegal under U.S. law. The PAA has now snatched away the legal fig leaf of protection from government surveillance that the Foreign Intelligence Surveillance Act had provided to Americans. However, the PAA still stands in direct violation of the Fourth Amendment of the Constitution, which requires probable cause and warrants for searches. Last year, the San Francisco County Board of Supervisors passed a resolution that denounces the use of warrantless wiretapping on Americans.

The Eighth Amendment

Throughout his tenure at the White House, Gonzales actively enabled the normalization of torture. As presidential counsel in January 2002, Gonzales approved a memorandum from the Department of Justice, urging President Bush to deny the protections of the Geneva Conventions to members of al-Qaeda and the Taliban. By doing so, he rejected an opportunity to join in Secretary of State Colin Powell's objection to this stark turn away from humanitarian law. An August 2002 memo, written by Deputy Assistant Attorney General John Yoo, stated that an act does not constitute torture unless it poses a threat of imminent death or organ failure. After receiving that memo, Gonzales had an opportunity to safeguard human rights by questioning the administration's slide away from guaranteeing basic rights. Instead, his approval made yet one more step down the sordid path of state-sanctioned torture, directly violating the eighth amendment of the Constitution, which prohibits the government from inflicting cruel and unusual punishment.

The Constitutional Right of Habeas Corpus

Gonzales laid out a legal justification for denying the right of habeas corpus. At a January 18, 2007, Senate Judiciary Committee meeting, Gonzales made the hair-splitting claim that "There is no express grant of habeas in the Constitution," but that the Constitution only stipulates "a prohibition against taking it away" under certain circumstances. In other words, Gonzales claimed that the Constitution does not grant Americans the inherent right to challenge government detention in court. Gonzales's pretzel-twisting of the Constitution led Republican committee member Arlen Specter to rebuke Gonzales: "You may be treading on your interdiction and violating common sense."

In 2005, Congress mandated that all federally funded schools in the U.S. educate students on the meaning and importance of the U.S. Constitution, which was approved and signed by delegates to the Constitutional Convention on September 17, 1787. The Bill of Rights Defense Committee (BORDC) and other groups that care about restoring our Constitutional rights have long marked September 17 as a day to raise public awareness about post-9/11 abuses of the U.S. Constitution.

The fact that the end of Alberto Gonzales's term is scheduled to fall on Constitution Day highlights the attorney general's allegiance to a unitary executive rather than to the Constitution, which he swore to uphold when he took public office. This Constitution Day provides an opportunity to increase public awareness of how fragile our freedoms are when public servants fail to protect our constitutional framework, and it can strengthen our resolve as a country to restore these principles.

For more information on public forums, screenings of a new BORDC video on NSLs, and community conversations that are already being planned across the country, and the text of local resolutions on NSLs and warrantless wiretapping:

Hope Marston and Ben Grosscup are Regional Organizers at the Bill of Rights Defense Committee.

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