Sunday, March 12, 2006

Obeying Whenever Possible

Retired Supreme Court Justice Sandra Day O’Connor spoke at Georgetown University on March 9, 2006, about Republican proposals for “judicial reform.” The suggestions include extensive impeachment of judges, limitations on jurisdiction, and even the elimination of some courts through budget cuts. Such schemes undermine the independence of judges, she said, and pose a direct threat to the Constitutional freedoms of all Americans. The experiences of developing nations and former Soviet states have shown that judicial reforms prompted by blatantly partisan politics allow tyranny to arise.

When the administration’s broad domestic spying operation was belatedly exposed, polls indicated overwhelming public opposition. Even Republicans expressed concerned and talked about an investigation. But investigating is exactly what they didn’t do. Instead, they adopted new guidelines for eavesdropping, demanding executive requests for warrants only “whenever possible.”

President Eisenhower once wrote that the Constitution means what the Supreme Court justices say it means. But in a democracy, the federal government is also obligated to accept those responsibilities “which the mass of the people firmly believe should be undertaken.” With those thoughts in mind, ask yourself what you believe the Fourth Amendment means:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Given the secrecy surrounding the administration’s activities, it may be years before a legal challenge to the guidelines makes its way to the Supreme Court. If that happens, the ideological disposition of the justices will be a critical factor.


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Laura Berg (left) is a Veterans Administration nurse in Albuquerque, New Mexico. She’s been a V.A. nurse for fifteen years, specializing in mental health emergencies of veterans. More than a decade ago, she worked with veterans of the Persian Gulf invasion; and she deals today with soldiers returning from Iraq.

She found that veterans from other wars were also affected by the invasion of 2003. Even some World War II veterans experienced increased aggressiveness, nightmares, or anxiety. Six months ago, like millions of other Americans, she watched the massive failure of federal response unfold in the wake of Katrina. So she sat down at home to write a letter to a local paper, The Alibi, criticizing the Bush administration for its handling of Iraq and Katrina. She called on citizens to “act forcefully to remove a government administration playing games of smoke and mirrors and vicious deceit.”

The V.A. reported her letter to the F.B.I. Her computer at work was seized in case she had used it to write her letter, which would have been a misuse of government property. The computer was found innocent and was returned, but Berg learned that she was under investigation for sedition.

Sedition is a thought-crime, the advocacy of the violent overthrow of government. The Sedition Act of 1798 further outlawed “false, scandalous and malicious writing or writings against the government of the United States” along with writing that defamed the government or brought it into disrepute. Section 3 of the 1917 Espionage Act prohibited “any disloyal, profane, scurrilous, or abusive language about the form of government of the United States.”

The Sedition Act of 1798 expired in 1801; the 1917 provision was repealed in 1921. In retrospect, it seems incredible that such manifestly un-Constitutional laws were ever enacted; but it is frightening to realize that the notion of sedition is still alive. Laura Berg did not bring the Bush team into disrepute; they did that themselves. Was her letter disloyal? No, quite the opposite. Can anyone at the Justice Department distinguish between “forcefully” and “forcibly”? Let us hope. I would hate to think that she is under investigation simply to intimidate her — and others — into silence.


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