Restorations of Individual Protections against Government under the Democrats? Con Law Professor is Dubious.
In a November 12 speech to the Columbus Urban League, Capital University Professor of Law and constitutional law expert Mark Brown assessed the likelihood of significant changes to government power over the individual once the Democratic Party takes firm control over Congress and the White House in January of 2009. My transcription of his full remarks:
Well, the really weird thing is we’ve done this sort of thing before. We haven’t learned from our previous mistakes. America’s reaction to war has always been bipartisan, and it’s always been severe and xenophobic. We’ve always picked a group and picked on that group. If you go back to the First World War, we picked on German Americans. We then had the Red Scare: we picked on socialists, communists, anyone who was differerent, anarchists, you name it. Then along comes the Second World War and we interned Japanese Americans and threw away the keys. What we did to them was just unfathomable, but we did it and everyone cheered and the Supreme Court said, “Yeah, go right ahead, it’s no big deal.” When you fast forward to 9-11, we started doing it all over again. We started picking on Muslim Americans. We did Palmer raids (which were in World War I) invasions of people’s lives and we did that all over again with the Patriot Act. We don’t learn our lessons.
I’m not optimistic on this. I’m optimistic on a lot of things, a lot of things that Amy talked about, but I have little optimism in this regard. The Patriot Act and the stuff that went along with the Patriot Act, which in my mind is just a walking, talking Fourth and First Amendment violation, is not likely to change much under the Obama administration. I mean, the Democrats were part of the cheerleading when this thing went through in 2001. It was almost unanimous, just amazing that no one read the Patriot Act in the first place and then just cheered as it went through. If you look at what’s gone on since then, the Democrats have not complained about this stuff.
For example, there’s a professor in South Florida. His name is Sami Al-Arian, who went on the O’Reilly Factor back in 2001 and criticized Israel; his statement was something like “Death to Israel,” which was a very common slogan, a very common Palestinian chant. Following that, the Justice Department descended upon Al-Arian, who was a legal resident and alien, a computer scientist at the University of South Florida. They locked him up in solitary confinement where he remained until a trial three and a half years later. The Justice Department lost miserably in that trial; there were 40 some-odd counts against Al-Arian and several alleged co-conspirators, and not one returned a conviction. There was a hung jury on a couple of points and for that reason the Justice Department kept Al-Arian in jail, and he remained in jail until just last month. You know what? Nobody among the Democrats criticized the Bush administration’s approach to that.
If you look at John Walker Lindh, if you look at Jose Padilla, all these alleged terrorists who’ve been prosecuted, who’ve been driven insane by solitary confinement and torture, how much criticism do you see out there from Democrats? You don’t, and that’s what scares me. All of this crazy stuff that the Bush administration put in place — and mark my word, it’s crazy, the stuff that George W. Bush and Alberto Gonzales and Cheney came up with is just constitutionally crazy. Their arguments make no sense. Yet they made the arguments and it took years and years for the courts, and ultimately the Supreme Court, to say, “You’re nuts! You can’t make that argument work!” And the political branches? They did nothing.
So I really don’t see the Obama administration doing much in this regard. Just think of the criticisms that were leveled on Obama during the campaign. You see people in Ohio even saying, “Well, he’s a black Muslim, I can’t vote for him.” Well: “How dare you not vote for him because he’s black?” and Obama’s response was, “Well, I’m not a Muslim!” I was waiting for Obama to say, “How dare you use religion as a factor in picking your next president?” Shouldn’t we have been just as outraged when someone said, “Well, he’s a Muslim?” But we weren’t, and I really fear for the Muslim American community in the coming years. I worry that the Democrats — and I don’t want to lay this all on Obama, I want to lay it on the Democrats — I really worry that the Democrats are not going to do much with this.
I think in the future, in the coming years, we’re going to see a lot of religious discrimination tied in to the War on Terror. I don’t think the Patriot Act, though it’s been modified and softened, is going to change a great deal either. I can’t imagine the incoming administration is going to give up all the intelligence techniques that the Bush administration has developed. I hope he does, but I don’t think he will. That intelligence is like candy; it’s maybe like cocaine. Once you get hooked on it, it’s really hard to get away from. I worry that we’re going to see more of it. If you don’t know what’s going on now, the Bush administration basically says it can read your e-mails, it can listen to your phone calls. Period. It’s tried to couch it and say, “Only if you’re talking to terrorists!” Well, how do you know that you’re talking to terrorists until you listen to the conversation? They’re listening to your conversations, and I think that’s going to continue in the future. I don’t think that originated with George W.; I’m sure Nixon did it, but Nixon got caught and we told him not to do it again. We haven’t quite gotten around to that yet with the new wave.