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--- Begin Message --- Title: Liberties Be Damned (washingtonpost.com)
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Liberties Be Damned
By Richard Cohen
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Tuesday, November 27, 2001; Page A13
It was said of Jerry Ford that if he met a homeless person in front of the White House, he would give the guy a couple of bucks. It also was said that if he were asked to approve a program to aid the homeless, he would veto it. These things were said because Ford has a generous manner but a conventional conservative ideology. In George W. Bush, as with Ford, the former masks the latter.
In Bush's case, the buoyant demeanor of the locker room towel-snapper has long obscured an indifference to civil liberties. The proof of that is the adamant position he repeatedly took on the one civil liberties issue that dogged him as governor of Texas: the death penalty. He just didn't give a damn.
Now, I grant you that in the conventional sense, capital punishment is not seen as a civil liberties issue. The Constitution permits it -- as it once did slavery. Yet nothing could be more heinous than the killing of an innocent person by the state -- or, in my view, a guilty person who was insane or immature at the time the crime was committed. Under any circumstance, executions serve no purpose.
Capital punishment is the harshest, most terrifying use of government power, and it explains why elsewhere in the Western world, the death penalty has been abolished either in law or in practice -- and why, incidentally, Spain is balking at extraditing alleged terrorists to the United States. Yet Texas's sloppy and inexcusable application of capital punishment troubled Bush not at all. He dispatched 152 people and slept the sleep of a baby.
So, for that matter, did the occasional defense lawyer in a death-penalty case. Many defendants went to their deaths represented by hacks or incompetents, and almost all the court-appointed lawyers, underfunded by the state, were handicapped in mounting an aggressive defense. Minors and the mentally feeble were executed for crimes they dimly perceived, and such was the condition of Texas's capital punishment system that as soon as Bush decamped for Washington, the state moved to clean up its act.
All this would be mere history if it were not apparent that Bush the president is as apathetic as Bush the governor when it comes to civil liberties. Attorney General John Ashcroft, less amiable than his boss, has played the heavy in much of what has recently been done in the cause of homeland security, but he is Bush's man -- down to, and including, a manic enthusiasm for the death penalty.
In the name of anti-terrorism, the government has abridged what was once the unquestioned right of lawyers and their clients to confidential consultations. Certain exceptions will be made -- just a few, mind you -- but if there were more, we would not know it. We do not even know how many people have been detained -- and for what. But even if the numbers are few, they are real people, legally innocent and deserving of both an accounting and representation.
The Bush administration has also announced that it will have the military conduct the secret trials of certain alleged terrorists. The penalty could be death -- please, Mr. President, stifle your yawn -- by a two-thirds vote of the tribunal. Even in a court-martial, it takes a unanimous jury to apply the death penalty. Bush has done away with that -- and with appeals of any kind.
The entire package, implemented by this or that executive order, represents a grave assault on civil liberties. It is defended as an appropriate and needed response to the current emergency -- Don't ya know there's a war on? -- and that, of course, is a powerful argument. But it is not wholly persuasive.
Why, for instance, can't the government ask the permission of the court to eavesdrop when lawyers talk to clients? Why can't it simply move legally against the lawyer if it feels he's part of some terrorist plot? It already has the authority to do that. And why can't civilian courts try alleged terrorists? We've done it in the past, and we can -- despite the difficulty -- do it again.
Given the current situation, we may all have to breathe a bit more shallowly of the bracing air of freedom. But the new procedures would be less troubling if we had a president who had shown himself to be commendably suspicious of police power and who appreciated that civil liberties do not favor the guilty but protect the innocent. The record shows, however, that he is not the type, that he is tenaciously incurious and jaw-droppingly gullible in his approach to criminal justice matters. Unlike some Texas defense lawyers, our defender is not asleep. He's merely indifferent.
© 2001 The Washington Post Company
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