[Please welcome Erwin Chemerinsky, the Alston & Bird Professor of Law and Political Science, Duke University, to the comments of this First Monday chat, brought to you with the invaluable help of the Alliance for Justice. As with all guest chats, please stay on topic and be polite. Any off-topic discussions should be taken to the prior thread. Thanks! — CHS]

Why aren’t the presidential candidates speaking out against the egregious abuses of the Bush administration in fighting the war on terrorism? Last week, as a result of a Freedom of Information Act request by the American Civil Liberties Union, the infamous torture memo authored by John Yoo became public. It is an astounding document that asserts that the President has the unilateral authority to ignore statutes and treaties ratified by the United States which prohibit torture. It argues for a narrow definition of torture, which would make acceptable countless practices, such as waterboarding, commonly regarded as torture.

Yet none of the three presidential candidates, Hillary Clinton, John McCain, or Barack Obama discussed this or how the attitude of the Bush administration led to the torture that occurred in Abu Ghraib, in Guantanamo, and at CIA rendition camps. The Bush administration has repeatedly taken the position that the end of fighting terrorism justifies any means and the means became horrific and unconscionable.

Why haven’t the presidential candidates spoken out against the unprecedented claims by the Bush administration of the authority to detain human beings, including American citizens, without providing any semblance of due process? I am still waiting for the first presidential candidate to ask the simple question: How many people is the United States now detaining or has it detained as part of the war on terrorism?

 The government never has disclosed the answer to this question, nor even begun to try. For example, how many individuals are being held at rendition camps across the world that operate immune from public scrutiny and the bounds of the law? We don’t know.

The Bush administration has claimed the authority to indefinitely detain American citizens and resident non-citizens apprehended in the United States for crimes planned in the United States without providing any of the Constitution’s protections. This is no less than a claim of presidential authority to suspend the Fourth, Fifth, and Sixth Amendments.

Why haven’t the presidential candidates spoken out against the government’s action in holding prisoners in Guantanamo Bay, Cuba, in a manner that clearly violates international law? Guantanamo has become a symbol throughout the world of the United States ignoring fundamental principles of human-rights law. The Bush administration has claimed that it can detain individuals it designates as enemy combatants in Guantanamo until the end of the war on terrorism, which the President says will last long beyond our lifetimes.

Why haven’t the presidential candidates spoken out against the Bush administration’s illegal and unconstitutional program of electronic surveillance of American citizens without a warrant? The Fourth Amendment requires a warrant for wiretapping of conversations or interception of electronic communications. A federal statute, the Foreign Intelligence Surveillance Act, is explicit that all electronic surveillance must be pursuant to a warrant under the procedures prescribed in that law or under Title III of the Omnibus Crime Control Act of 1968.

But the Bush administration has claimed that the President has the authority to ignore the Constitution and the federal statute in the name of national security. There is, though, no stopping point to this argument. If the President can authorize warrantless electronic surveillance, why not warrantless searches of people’s homes? In fact, if the President can suspend the Fourth Amendment for the sake of national security, why not the First Amendment or even the Constitution’s requirement for elections?

Few, if any Presidents, in American history have shown such disregard for the Constitution and the rule of law. Yet none of the presidential candidates have made this a campaign issue. Why? The answer is clear: they don’t think it will sell with the voters. They fear that criticizing the abuses of the Bush administration will be taken as being weak in fighting terrorism.

But I believe that the candidates underestimate the American people and the national commitment to the Constitution and the rule of law. It is not about questioning fighting the war on terrorism. But it is about expressing the view that we can do so effectively without giving up our moral and legal commitment to the most basic human rights. I do not believe that I am overestimating the American people in thinking that the vast majority agree that George Bush, Dick Cheney, John Ashcroft, Alberto Gonzales, and Donald Rumsfeld have unnecessarily trampled fundamental constitutional rights.

Unquestionably, they have done so for the noble goal of making the country safer. But the presidential candidates need to remind the voters of the wisdom of the late Justice Louis Brandeis, who observed that the greatest threat to liberty comes from those acting for beneficent purposes. He said that people born to liberty know to resist the tyranny of despots. The insidious threat to freedom comes from well meaning people of zeal with little understanding of what the Constitution is about. Justice Brandeis, of course, never knew Alberto Gonzales or Donald Rumsfeld, but he could not have picked better words if he had.

CHS Note: I’d also encourage everyone to watch the just released short film from Alliance for Justice, One-Sided Debate.

Erwin Chemerinsky

Erwin Chemerinsky

Erwin Chemerinsky joined the Duke faculty in July 2004 after 21 years at the University of Southern California Law School, where he was the Sydney M. Irmas Professor of Public Interest Law, Legal Ethics, and Political Science. Before that he was a professor at DePaul College of Law from 1980-83. Practiced law as a trial attorney, United States Department of Justice, and at Dobrovir, Oakes & Gebhardt in Washington, D.C. Received a B.S. from Northwestern University and a J.D. from Harvard Law School.