When constitutions stand, and fail, as bulwarks of freedoms

When Susan N. Herman set out to write a book about abuses by the U.S. government since 9/11, friends told her they didn't want to hear any more about renditions or Guantanamo. The prison in Cuba is not what Taking Liberties: The War on Terror and the Erosion of American Democracy is about. It's about us: about what the government has done and what we've allowed to be done at home.

If you've been paying attention -- or just passing through airports, or entering the New York City subway, or maybe even taking books from the library -- you know that since 9/11 the government has decided we need to be watched, recorded and prodded to ensure our "security." Herman calls this the "Just Trust Us" society, since they dispensed with our Constitutional protections against searches and unwarranted surveillance -- and consistently refused to give courts or anyone else enough information to determine whether all this snooping is providing any safety or just covering the asses of an ever-enlarging bureaucracy.

... the last ten years have inculcated in many Americans a sense that we cannot know enough to make the policy decisions about how much surveillance is too much or whether particular security programs work. While it is certainly true that the rigors of secrecy make it difficult for us to assess what benefits we may be getting from broad material support laws, wholesale surveillance, or massive data banking, for example, there is no good reason why the American people cannot be included in the decision-making process to a greater degree than we have been so far. …

Herman is also clear on a significant reason that both Bush II and Obama have been able to get away with running roughshod over fundamental freedoms:

…the brunt of the impact of our post-9/11 program has fallen on Muslims, a minority in the United States practicing a widely misunderstood religion and easily stereotyped as resembling the 9/11 hijackers. …The milder impact felt by non-Muslim Americans -- loss of privacy, occasional co-optation as government agents, and embarrassing experiences at the airport -- may seem to many like an acceptable bargain. This view, of course, discounts the deeper and less visible damage the New Normal is doing to our constitutional principles, to our democracy, and to our way of life. …

We stand indicted as a people that cling to a "childish" expectation that presidents can guarantee our safety. Since this is delusional, we have submitted to delusional measures -- and thereby voluntarily given up much of our inheritance of liberty.

Herman, the national president of the American Civil Liberties Union, does a good job of cataloging the court proceedings that have followed on current government encroachments on freedoms. Her book is certainly worth reading. So is David K. Shipler's more journalistic survey of much of the same terrain, The Rights of the People.***

While writing about the erosion of democracy and liberty in the United States, I also need to pass on that the ruling African National Congress in South Africa has passed a press law that newspapers fear will mark the death of open speech and free inquiry in that emerging democracy. Such luminaries of the anti-apartheid struggle as Bishop Desmond Tutu and former South African president Nelson Mandela urged the party not to press ahead, but their legislative members have done so. Editors of newspapers across the country joined in an impassioned statement denouncing the new law. Some bits:

Every member of Parliament who presses the green button to vote "yes" for the Protection of State Information Bill will at that moment take personal responsibility for the first piece of legislation since the end of apartheid that dismantles an aspect of our democracy -- a betrayal that will haunt them forever.

… this vote comes amidst escalating attacks by the ANC on reporters, newspapers and the freedom of the press. Adoption of the Bill could be the first step in a series of attacks, including the creation of the media appeals tribunal mooted by the ANC, that slowly strangle our freedom to know what is being done in our name.

The spreading culture of self-enrichment, either corrupt or merely inappropriate, makes scrutiny by a free media which is fuelled by whistle blowers who have the public interest at heart more essential than ever since 1994.

If members of the ANC cannot muster the courage to defy their party's leaders and repudiate the Bill, it will again -- as it was under apartheid -- be up to those willing to go to jail for a very long time to expose the abuse of state power.

The newspapers will go to court, appealing to the higher authority of the country's post apartheid democratic constitution against the legislative attempt to criminalize speech. The country has a long and noble history of struggle for the rule of law; before he was the apartheid regime's most famous political prisoner, founding President Nelson Mandela was a lawyer. The nation's highest court has shown great bravery in defense of liberty, for example by affirming gay marriage rights in 2006. But free speech and civil liberties in South Africa are clearly under threat, just as they are in the United States. Can written constitutional guarantees save them?