By John W. Whitehead
September 18, 2002
"The danger we now face is admittedly greater than any we have had before," Nat Hentoff matter-of-factly says of civil liberties in present-day America. A Village Voice writer since the 1960s, Hentoff is known for his acidic attacks on compromised political power and as a defender of the First Amendment. He initially gained recognition in the 1950s as a jazz writer but by the ‘60s had earned a reputation as a free speech and civil rights advocate for his exposes of civil rights abuses in the South as well as his defenses of controversial figures like Malcolm X and Lenny Bruce. He has drawn heat in recent years as a lone pro-life advocate in a "liberal" world and for quitting the ACLU over their policy of refusing to reveal results of HIV tests on newborns.
Today, Hentoff is a constant thorn in the side of presidents and politicians, saving his greatest polemics for those leaders that he sees as undermining the constitutional rights of Americans. In 1997, he said of Bill Clinton: "He is the most destructive president in our history in regard to constitutional guarantees of individual freedom." And ever since the World Trade Center/Pentagon attacks, he has constantly alerted his readers to the attack on their rights being waged by the present administration. In his September 2 Village Voice column on internment camps designed by John Ashcroft, Hentoff went so far as to call for the Attorney General’s resignation. On the eve of the one-year anniversary of the WTC and Pentagon attacks, John Whitehead talked with columnist and activist Nat Hentoff about the erosion of civil liberties since September 11, 2001.
JOHN WHITEHEAD: What do you believe the current state of civil liberties in the United States is?
NAT HENTOFF: First of all, there have been some troubling times in our history. There were the Alien and Sedition Acts of 1798 when newspaper editors, civilians, anyone who criticized the government was placed in jail. Abraham Lincoln suspended habeas corpus during the Civil War. He even arrested members of the Maryland legislature and all kinds of people around the country who objected to his policies. We had the Red Raids in the early 1920s that started off J. Edgar Hoover’s career in which hundreds of people were arrested, some of them deported without any due process at all. During the First World War, Woodrow Wilson not only practically suspended but also discarded the First Amendment. Then there were the Japanese internment camps of World War Two, followed by the McCarthy era.
That was then. But I believe we are in a worse state now than ever before in this country. This was alluded to by Congressman Bob Barr, a conservative from Georgia. When the USA Patriot Act was being debated, Barr said, "This is the most massive assault on our civil liberties since our history began." And now we have the Attorney General, John Ashcroft, planning detainee—I would call them internment—camps. What Ashcroft wants to do is to have those labeled enemy combatants as defined by the Justice Department and the President—and let us give credit to Ted Olson, the Solicitor General, who is also one of these strategists against the Bill of Rights—even American citizens detained on American soil imprisoned in military brigs or in these new internment camps. Two American citizens are being imprisoned now, without charges, without access to lawyers and indefinitely. I think this is fairly unique in American history, even though I have just brushed over some of the disgraceful things we have done out of fear and panic in the past.
Soon after 9-11 Secretary of State Colin Powell said this is a war against civilization because these terrorists, these killers, have no regard for the sanctity of human life. And their principal target, of course, is the United States. That is because we symbolize what they would call the height of the infidel, I guess, and because we have the longest functioning constitutional democracy in the history of the world. This is totally foreign to them because of our concept of individual rights, individual conscience and so on. At the same time all this is going on, we are fighting to keep our country free from our own government. This is not just a Republican problem. I really don’t think the Democrats would have been any different, judging by the silence of the Democratic leadership in Congress—especially in light of the virtual silence of Tom Daschle, Gephardt and the rest, as all these violations of civil liberties have been taking place.
We are now under the USA Patriot Act that permits pervasive electronic surveillance with minimal judicial review. Under the USA Patriot Act, FBI agents with a court order from the Foreign Intelligence Surveillance Court, which is a secret court, can enter people’s homes and offices when they are not present. Then they can look around and take what they like. They can examine a hard drive and install in your computer the magic lantern, known less metaphorically as the keystroke jogger, which means they can record while you are not there everything you have typed on your computer, including stuff you have never sent. Then, under the USA Patriot Act, they can come back when you are not at home and download whatever information of yours they so desire. And, as a matter of fact, they have been working on a device so they can accomplish their clandestine objectives from a remote location, which means they won’t even have to enter your home once the magic lantern is installed. This makes a prophet out of Justice Louis Brandeis, who I think was one of the wisest judges ever to sit on the Supreme Court. During the first wiretapping case back in 1928 [Olmstead v. U.S.], he said in his dissent, "Ways may some day be developed by which the government, without removing papers from secret drawers, can reproduce them in court, and by which it will be enabled to expose to a jury the most intimate occurrences of the home."
So you’re saying we are in a police state?
We are coming close to that. I will tell you one thing that gives me some hope is that not only the official civil libertarians, let us say like the ACLU, but a good many conservatives and libertarians are objecting to this. I think a useful example is Dick Armey, the House Majority Leader, who is very conservative. When Ashcroft proposed Operation TIPS, which would allow Americans to spy on each other—literally millions of truckers and deliverymen and all kinds of people who are asked or urged to report to a hot-line number anything suspicious they see connected with possible terrorism—Dick Armey struck that out of the markup of the House bill on the Homeland Security Office bill. And then Pat Leahy, chairman of the Judiciary Committee, who has not been all that sensitive to civil liberties, wrote a letter to Joe Lieberman, chairman of the Government Operations Committee, which is in charge of the Homeland Security bill, and asked Lieberman to do what Dick Armey did and strike out not only Operation TIPS but the National ID that the Administration wants. Lieberman never even had the courtesy to answer his letter.
Do you think the Administraton is motivated by fear or is it politics?
Well, I think it’s out of ignorance, to begin with. Not ignorance on the part of the lawyers involved like Michael Chertoff, Ted Olson and other key advisors in the Justice Department to Ashcroft. I am not so sure Ashcroft could ever pass a test on the Bill of Rights, but the others know what they are doing. George W. Bush has attributes that I like. But unfortunately, I think he has never focused on civil liberties in his entire public career, as is evidenced by what he was doing as governor of Texas. So I think part of it is ignorance; part of it is politics. For one thing, the Bush Administration is presumably demonstrating to the American people that they are doing something to protect us from these terrorists. They are also putting the opposition in a defensive posture, which is possibly one reason most of the Democrats are silent. But I think they are ignorant, too. I don’t think Tom Daschle has spent much of his life thinking about civil liberties, either.
Do they care about civil liberties?
Obviously, they don’t. Only one senator, Wisconsin Democrat Russ Feingold, voted against the USA Patriot Act. And when it was being debated on the floor of the Senate, Tom Daschle came down and told the Democratic caucus, "I don’t want any amendments to this Bill, and if Feingold puts in an amendment, ignore it." As Feingold said, this is the worst experience he has had because he thought, and I agree with him, that the USA Patriot Act struck at the very core of American democracy.
In polls, the American people seem to show that they are willing to give up their freedoms.
Not quite. I don’t always go by polls. But there are enough polls to indicate there is a good deal of restlessness among some of the people. And I will tell you what gives me great, if not hope, a great lift of spirit. In Northampton, Massachusetts, last January, a group of retirees, teachers, doctors, lawyers and students got together and formed the Northampton Bill of Rights Defense Committee to defend the residents of that town against Ashcroft, Bush and the rest and their attacks on civil liberties. In April, they got the town council to unanimously approve a resolution alerting the local police, the local law enforcement officers, to at least inform the citizenry when the Feds come to town and begin to violate the citizens’ rights. Now those defense committees have spread to Leverett, Amherst and Cambridge, Massachusetts. There is a network around the country of variations on these Bill of Rights defense committees. There is one in Ann Arbor, another one in Denver and, not unexpectedly, another one in Berkeley, California. There is a small working-class town in North Carolina that has its own Bill of Rights defense committee. The idea is to finally maybe get some of the members of Congress to wake up, not necessarily because they are converted to the Bill of Rights but because they want to be reelected. The kind of people who are involved on these committees—and they are across the spectrum, liberals, conservatives, whatever—are people who understand the Bill of Rights and are demanding that their representatives stop this slide away from constitutional democracy. So far, the media has largely ignored this. Despite this, and I suppose this is one of the advantages of the Internet, people are finding out about it. I just found out this morning that there are now at least 30 towns and cities around the country where these resolutions have either been passed or are being proposed to the various city councils.
Why do you think the media is ignoring all this?
Let me go back to my answer to one of your other questions. Ignorance. I am a journalist. I know a lot of reporters and editors. One of the things that is taught so badly in our schools, from elementary and middle school through graduate school, including journalism schools, is the Constitution and our liberties and rights. And journalists are the same. I have talked to journalism schools. You ask them what’s in the Fourth Amendment, why we have it, or the Eighth or the Fifth or the Sixth and their eyes glaze. All they know about the First Amendment is freedom of the press but not freedom of association or the Establishment Clause. In other words, the reason we are vulnerable to being manipulated by the government out of fear is that most of us do not know and understand our liberties and how difficult it was to obtain them and how hard it is to keep them. And the rest of the answer to what’s happened to information dissemination is the 24-hour news cycle. Those in the media are forced to keep up with each other as they are egged on by these cable shows where, unfortunately, oftentimes all you have is people shouting at each other. As a result, there is very little time for reporters or editors to even think. It’s just a matter of the day’s story.
There is no analysis.
Very little analysis, indeed.
Watching CNN, it seems at times that they are the mouthpiece of the government on these issues.
I think that’s also true of most of the broadcast channels. You don’t find out much about what’s going on in terms of civil liberties on NBC, ABC or CBS. It’s hard for me to think of a place where you do get any kind of regular analysis on what we are supposed to be fighting for, which is to keep our liberty.
Most of the young people, as you say, have virtually no clue what’s in the Constitution and what it means to history. What does that say about the possible future of this country in regard to civil liberties?
That is what I find very scary, and that’s why I spend a lot of time writing about what should be done in education. The Freedom Forum has started a project called First Amendment Schools. This is a beginning. They’re giving grants to schools around the country, from elementary through high school, where they’re teaching the First Amendment and implementing it in the schools. This teaches the kids not only what their rights and responsibilities are but also how to act on them. That’s a small thing, but it’s something. What we need, and it sounds corny, is leadership. We don’t have it in either party in terms of reminding people why we are Americans and why, on paper, we are the freest country in the world and why we have to keep it that way. Otherwise, what are we fighting for?
In their basic beliefs, have Americans fundamentally changed over the last 40 to 50 years since the McCarthy era or since the ‘60s? In the ‘60s, people were climbing up flagpoles and screaming against the government. Today, you have everybody waving a flag. Doesn’t there appear to be a difference in how people view their lives and whether they believe civil liberties are important?
In the ‘60s, I was involved in this and so were some of my children. There were very visible dramatic fights for civil rights against the Vietnam War. So people got caught up in that. However, I remember Paul Goodman, a very wise political philosopher and educator, who used to say to me in those days that this is not the beginning of a long-term movement for a constitutional democracy; it’s going to fade. And, as a matter of fact, even within those civil rights and anti-war organizations there was very little room for dissent. I remember speaking against the war at Notre Dame University and criticizing the anti-war people who were physically impeding others from expressing themselves. For example, when the South Vietnamese ambassador was speaking in New York, they poured water over his head. I told these students, before I was booed down, "You can’t say you are fighting for freedom in Vietnam and then prevent people from speaking here." It didn’t register then. So the problem I have been talking about, or trying to for years, is what’s wrong with the way we teach students, kids. That’s been going on for a very long time.
When George W. Bush ran for president, he said there should be limits to freedom. There is also this concept floating around very strongly in today’s culture that freedom and security are mutually exclusive terms. How do you respond to that?
Well, again it comes down to a very basic question. This has been said by the President, by the Attorney General, by the Defense Secretary and by the Secretary of State since September 11. They say everything we do for security will be within the bounds of the Constitution, which has increasingly not been the case, to say the least. What they are really effecting—whatever their intentions are based on, be it ignorance or a delusion—is a weakening of why we are Americans. If we are going to defend ourselves against terrorists by adopting ways of defeating them but instead defeat our own liberties, who wins that battle? You know, people say okay, this has happened in the past, but we always come back. We always come back to remembering why we’re Americans and remembering our constitutional rights. But what you lose doesn’t always come back. Take habeas corpus, for example, the most important English-speaking right, whereby if you are in prison, whether it’s on death row or just in prison, you have the freedom to make the government prove they have a right to keep you in prison. That basic right has been weakened again and again through the years by the legislature, by various presidential acts and by the Supreme Court, and it’s not coming back. It’s gotten weaker and weaker, and now Ashcroft is weakening it again when he puts American citizens in prison—whatever he may call that prison—without any recourse to the courts. And Ashcroft’s own Justice Department emissary said to a federal judge only last week, "You judges have no right to review what we are doing." Whatever happened to the separation of powers? This is really dangerous stuff.
Are you saying that people now fear the government much more than they ever have before? Is the government now something to be feared?
Sure, if the government is going to know what’s on your computer; or if the government is going to know what e-mails you are sending or what website you are going to; or with invasive programs such as Operation TIPS, which, by the way, is already in effect. It started this month and will continue unless and until Congress does what Dick Armey did and rejects it. You have people who will be coming through your backyard to fix the electricity or something and they may see you reading Common Sense by Tom Paine or 1984 by George Orwell or maybe something by John Whitehead or by me and say, "That looks pretty suspicious. I’m going to phone that in." Now Ashcroft, when he was defending Operation TIPS before the Senate Judiciary Committee, said, "Oh, we are not going to put all this stuff on the database." But then a senator said to him, "But aren’t you going to exchange all this information with other law enforcement agencies, including the CIA, who will put this rumor, speculated stuff into their databases?"
Everybody becomes a suspect.
That’s right. You are a terrorist until proven otherwise.
There are all these forces moving behind the scenes. In 1961, in Eisenhower’s Farewell Address he talked about the fear of the military-industrial complex. Is that what’s behind this? Is the military-industrial complex involved? In other words, are those in power looking more at commerce and commercial interests, rather than civil liberties?
Right. I think that under globalization the allegiance of these corporate entities is more to their worldwide profits and connections than to the United States’ principles under the Constitution. That’s why, for example, they are so eager to do business with China, one of the worst dictatorships and anti-freedom governments in the world. And I think this may be true of the military. But I must say I am not so sure of this because some military leaders have been rather worried about going into Iraq. This indicates that maybe some of them are thinking that not everything is as black and white as the Bush Administration seems to believe. However, I don’t want to shift too much of the blame for what’s going on. It starts with the President, who, if you remember, wanted to set up military tribunals in that first egregiously wrongly drafted executive order that would allow him, and only him, to decide who happens into those tribunals. Even now, under this "enemy combatant" concept they have derived, it’s Bush who essentially decides who is going to be an enemy combatant kept without recourse to Justice Department lawyers or without any charges. The basic fault is in the Bush Administration right now.
So Bush’s Administration has undermined the democratic process?
That is what they are clearly doing. I really don’t believe Bush understands that. I am not saying he is a dumb man. He has shown in the past, and in particular as President, that he is quick to respond to worldwide events. However, I believe his grounding as a student and as an adult in the principles of American democracy has been exceedingly limited. That’s why he allows Ashcroft and the others to do what they are doing. I don’t believe Bush knows the difference. I think he believes it when he says everything we are doing is within the bounds of the Constitution. Someone at these press conferences might ask him a couple of questions, like what about the Fifth Amendment right not to testify against yourself or be involved against yourself in proceedings? What about the Fourth Amendment right of privacy?
Well, as you have said, even the president does not understand the Constitution. Thus, they can’t ask the question.
That’s the problem. I remember the morning the USA Patriot Act was signed, there was one of these regular press conferences with Ari Fleischer, the President’s press secretary, and the so-called cream of the Washington press corps. There were only two quick, superficial questions about the USA Patriot Act, and then they went on to other things that interested them more. Yes, one of our big problems is the press. But I have to give some credit. I don’t always agree with the editorial policies of the Washington Post or the New York Times. But their editorial pages, especially the last couple of months, have been raising some very serious questions about the direction of things. And so have the Los Angeles Times and the paper in Washington that I write for, the Washington Times.
How do you react to the idea that we can have the military act as the police in certain situations in this country?
We are supposed to have a very clear law, the Posse Comitatus Act, that prevents the military from doing that. There are strong indications that the Administration plans to give the military more of a role, including a role of arrest and detaining, in what’s going on now.
What do you think of the proposed Homeland Security Office?
I am more concerned with the Department of Justice under John Ashcroft. Moreover, whatever the Homeland Security Office is going to be, the increasing surveillance of citizens will continue. The rest of this seems to me to be an attempt to again symbolically indicate to the public that the Bush Administration is doing something. I am not very clear about the rationale for this department and who on earth is going to run it. I mean, Tom Ridge has about as much concern with civil liberties as John Ashcroft has.
How are we going to stop this fast-moving train? What should the average citizen out there do?
Citizens should make it evident to the people in Congress who represent them that they don’t agree with what is happening to their fundamental liberties. And another thing people don’t always think about is letters to the editors of newspapers. In most newspapers, they are among the most heavily read sections because neighbors like to know what their other neighbors are saying and doing. I remember that, when I was covering Congress, the more astute members of Congress had a staff member who would keep a check on the letters to the editors in the local papers in their districts. And also, it’s harder to reach a congressman these days through the mail or e-mail, but try. At least give some indication that there are Americans who know why they are Americans, who have justified fears about al-Qaeda and all these other terrorist killers and are also in fear of losing their liberties. And in the process of going after the terrorists, do not let the very constitutional rights that make us different from all other countries be subverted. That’s because, under our Constitution, we are much more respectful of individual liberties than anybody else. And if we are going to lose that in this war against terrorism, what kind of victory will it be?
You optimistically can change the course of things?
If I were to judge what I do and write on the basis of optimism, I would probably go back to writing novels. No, I figure you have to do what you feel you have to do and just keep hoping and trying to get people involved in understanding. And again I come back to this mantra: You have to understand why we are Americans and what we are fighting to preserve. It is astounding that the Bush Administration does not understand this and why, whether in the best of intentions or not, it is subverting the very liberties that are the basis of our freedoms.
In your own words, why are we Americans?
We are Americans because, under our Constitution, we are guaranteed freedom—which makes us the oldest living constitutional democracy. I think the greatest decision by the United States Supreme Court was rendered by Justice Robert Jackson in West Virginia Board of Education v. Barnette in the middle of the Second World War. When the children of Jehovah’s Witnesses would not salute the flag, they were expelled and their parents threatened with jail for contributing to the delinquency of minors. Their religion forbade them to salute the flag, which was a graven image. Jackson said, and I am paraphrasing here, that in this country there is no orthodoxy of belief or of conscience whether political, religious or anything else. You can’t say that about any other country in the world, including what’s become of the European Union, where there are laws against saying things that might offend somebody. So that’s why we are Americans: we are free to be ourselves; to believe in what we believe; to not interfere with other people’s beliefs or conscience. Ronald Reagan was known for this phrase, but the first time I heard it was from William O. Douglas, who was a great Supreme Court justice in terms of liberty. Douglas used to say that the government has to be off our backs when it comes to our individual liberties: the freedom of speech, freedom of the press and freedom to be who we are.
DISCLAIMER: THE VIEWS AND OPINIONS EXPRESSED IN OLDSPEAK ARE NOT NECESSARILY THOSE OF THE RUTHERFORD INSTITUTE.