American Democracy in Context. Joseph A. Pika

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СКАЧАТЬ of the September 11, 2001, terrorist attacks on the World Trade Center and the Pentagon. As part of the “War on Terror,” both Congress and President Bush took actions to limit civil liberties. Congress passed the USA Patriot Act in October 2001 to expand the government’s power to collect phone records, monitor e-mail communications, and gather information from libraries and bookstores about what people were reading. It also contained “sneak and peek” provisions that allowed the government to seize information without informing the person involved. The government argued that such measures were necessary to combat the threat of terrorism and protect national security. In 2015, the USA Patriot Act was replaced by the USA Freedom Act, which still authorized government surveillance but with greater limits.¹³⁴

      Behind the scenes, President Bush secretly authorized the use of warrantless wiretaps by the National Security Agency on telephone calls between the United States and foreign countries in cases where one of the parties was suspected of links to al-Qaeda. When The New York Times revealed the program in 2005, critics charged that the Bush administration had ignored civil liberties and violated the 1978 Federal Intelligence and Surveillance Act (FISA), which allowed such wiretaps only if a special court issued a warrant for the tap either before or up to 72 hours after the start of the surveillance.¹³⁵ Although President Bush suspended the particular program uncovered by The New York Times, Congress validated his authority to wiretap foreign intelligence targets without a warrant, even if they were speaking to U.S. citizens, through amendments to FISA in 2007 and 2008.

      Critics also raised concerns about the Bush administration’s treatment of suspected terrorists. The administration claimed the right to detain terror suspects, including U.S. citizens, indefinitely without charge and without access to a lawyer. Several Supreme Court decisions limited the powers claimed by the Bush administration. For example, Hamdi v. Rumsfeld (2004) held that U.S. citizens, including terror suspects, have the constitutional right to consult a lawyer and to contest their detention before an independent tribunal.¹³⁶

      The Bush administration wanted any trials of these detainees to take place before a military commission rather than in federal court, and the president authorized the use of such military commissions by executive order. However, a 5–3 majority of the Supreme Court held in Hamdan v. Rumsfeld (2006) that military commissions were not authorized by Congress and violated international law.¹³⁷ The ruling was seen as a major setback for the Bush administration, but the Republican-controlled Congress subsequently passed the Military Commissions Act of 2006 at the urging of the White House. The Act authorized the use of military commissions. The Obama administration initially banned the use of military tribunals to try terror suspects but rescinded that ban in 2011.

      Civil libertarians also expressed concern about the use of “enhanced interrogation techniques” (such as waterboarding) used against terror suspects by the Bush administration. The Bush administration denied that such techniques constituted torture and pointed to the broad prerogative powers claimed by presidents during war and other emergencies as a justification for such action, but critics disagreed. President Obama eventually revoked the executive order issued by Bush that had authorized enhanced interrogation.¹³⁸ Although Trump repeatedly endorsed such techniques during the 2016 presidential campaign (saying at one point that he would endorse the use of waterboarding “in a heartbeat” because “only a stupid person would say it doesn’t work”), his Central Intelligence Agency director, Gina Haspel, promised during confirmation hearings not to resume the use of enhanced interrogation techniques.¹³⁹

      Consequences for Democracy

      Constitutional language is the basis for our civil liberties, but it is important to remember that constitutional language alone is not enough to preserve them. The constitutions of many other countries, including China, offer similar guarantees that ultimately prove to be hollow. What makes the U.S. system different is its long-standing commitment to the rule of law—its willingness to hold the government accountable to the Constitution. Any retreat from that commitment to the rule of law would have profound consequences for the liberties we cherish and take for granted.

      Even with a strong commitment to the rule of law, holding government accountable to the Constitution requires interpretation of that document. And, as we have seen throughout this chapter, the ambiguity of constitutional language gives the Supreme Court great power to determine the actual scope of civil liberties. Quite simply, the way that civil liberties are interpreted and enforced matters to our democratic system and to you. Your ability to protest the government, worship as you please, use birth control, marry a same-sex partner, and decide whether to refuse medical treatment all depend not only on what the Constitution says but also on how the Supreme Court interprets it.

      That is why so many Americans pay attention to who sits on the Court. The large number of 5–4 decisions discussed in this chapter is a vivid reminder of the power of individual justices. It is undeniable that President Trump’s appointments of Neil Gorsuch and Brett Kavanaugh have shifted the balance of the Court and will influence policy for years to come (just as Hillary Clinton’s appointments would have done if she had won the 2016 election). That is why, as we will discuss in more detail in Chapter 14, judicial appointments are so important (and so highly contested).

      Once they get on the Court, the tests justices choose to apply to individual cases have profound consequences. Being able to identify what kind of tests the justices use in particular cases may seem pedantic at first, but their choices affect everything from the regulation of your sexual behavior to whether an invocation is allowed at high school football games.

      Incorporation has consequences, too. It has consequences for states, whose policy options are affected; for taxpayers, who may have to fund requirements such as jury trials in criminal cases; and for you, whose rights are extended.

      Think about the consequences all of this has had for you and your friends. If you care about such things as prayer, guns, protest, sex, life, and death, civil liberties matter to you.

      Critical Thinking Questions

      1 How would our system of government be different if the Supreme Court had not embraced incorporation, and how would that difference affect you?

      2 When, if ever, would you be willing to allow the government to curtail your civil liberties?

      3 To what extent should the Supreme Court be able to recognize rights that have not been enumerated in the Constitution?

      Key Terms

       bad tendency test, 85

       Bill of Rights, 76

       civil liberties, 76

       clear and present danger test, 85

       due process clauses, 79

       establishment clause, 91

       exclusionary rule, 101

       free exercise clause, 91

       incorporation, 79

       libel, 88

       Miranda warnings, 101

       natural rights, 94

       prior restraint, 82

       slander, 88

       substantive СКАЧАТЬ