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The Calamity of Victory
by Douglas Savage
9 April 2003

The national government now enjoys Congressional license to spy on religious practices and assemblies, to deny immigrants public hearings during deportation prosecutions or immigration appeals, to violate attorney-client, privileged and confidential communications when alleged "terrorists" seek effective assistance of counsel within prison walls, and to deny accused "terrorists" of the right to confront in a public forum the witnesses against them.



We are at war.

To our country, defeat is the greatest risk in this adventure. To our Constitution, victory is the greatest risk.

The Founding Fathers understood that there is only one difference between a true democracy and a mob: "democracy" has more vowels. For this reason, those ancient men in their powdered wigs and silk stockings created for us a "republican form of government" guaranteed by Article IV, Section 4, of the Constitution of the United States. To protect each of us from the tyranny of the well-intentioned mob, the fathers of this republic bequeathed to us the model of three government branches, each of which can frustrate the whims of the other two.

The Founders took care to reserve to Congress the power to declare war under Article I, Section 8, Clause 11. Our President is Commander in Chief under Article II, Section 2.

Although an unconstitutional delegation of legislative authority to the executive branch, the War Powers Act of November 1973, passed over President Nixon's veto, pays lip service to the Constitutional separation of powers. The Act requires presidents to report to Congress about foreign, military commitments once every six months, and the Act gives Congress authority to require withdrawal of United States forces in the absence of a Congressional declaration of war upon sixty-days notice to the President. The Act was not invoked by the first President Bush during the Gulf War of 1991. And the Act has not been invoked now, either by Congress or by the President. Tuesday, March 18, 2003, President Bush sent to Congress a formal statement of our government’s intent to prosecute war against Iraq. This statement was to comply with the October 2002, Congressional "Joint Resolution To Authorize the Use of United States Armed Forces Against Iraq," Public Law 107-243, House Joint Resolution 114. This Joint Resolution authorizes the President to attack Iraq "to enforce all relevant United Nations Security Council resolutions regarding Iraq." Unfortunately, our near-sighted Founding Fathers failed to build the United Nations Security Council into either Article I or Article II of our Constitution.

The political purpose of the War Powers Act, and its illegitimate offspring the Joint Resolution of October 16, 2002, is to give Congress the privilege of denying accountability if undeclared, foreign wars should fail, and to allow Congress to share the credit with the Commander in Chief if undeclared, foreign wars should succeed.

This Congress and this President already share accountability for their assaults on the Bill of Rights since September 11, 2001.

Nothing more than "parchment barriers", James Madison called this Bill of Rights in his letter to Thomas Jefferson on October 17, 1788.

In response to the evil and the carnage of September 11, 2001, the sawdust men and women of the United States Congress enacted the Homeland Security Act and the manfully named United States Patriot Act. Under these new federal laws and by Executive Orders from the President and his Attorney General, the national government now enjoys Congressional license to spy on religious practices and assemblies, to deny immigrants public hearings during deportation prosecutions or immigration appeals, to jail librarians at public libraries if they reveal that federal authorities have demanded disclosures of what people read, download, or borrow from public libraries, to seizure records from public bookstores which reveal what kind of books consumers have purchased, to violate attorney-client, privileged and confidential communications when alleged "terrorists" seek effective assistance of counsel within prison walls, to search private homes and papers without a prior showing of probable cause if terrorism is suspected, to deny suspected terrorists even if native-born a speedy and public trial in public civil courts, and to deny accused "terrorists" of the right to confront in a public forum the witnesses against them.

There should be little debate that President George W. Bush is a good and decent man who loves our country. But what of future Presidents? This President is not Richard Nixon and he will not become a petty fascist. His parents would not permit it. This President will never commit perjury by lying to us about a protein spill on a White House female intern. There should be no debate that this President spoke his heart in his January 28, 2003, State of the Union Address when he proclaimed: "We sacrifice for the liberty of strangers."

But what of our liberty?

During World War I, Congress passed the federal Sedition Act of 1918. It became a felony to "willfully utter, print, write or publish, any disloyal, profane, scurrilous, or abusive language about the form of government of the United States." Punishment was twenty years in prison plus a $10,000 fine. Thomas Jefferson would have gone to prison in 1918 for what he wrote in the Declaration of Independence. Armed with the Sedition Act of 1918, President Woodrow Wilson's Attorney General A. Mitchell Palmer rounded up 10,000 suspected Communists on November 7, 1919, during what became known as The Palmer Raids. Another 6,000 were arrested in January 1920. Most were held without warrants, without benefit of counsel, and without the right to confront the witnesses against them—all rights guaranteed by our Bill of Rights. When tempers cooled 83 years ago, most of the suspected Communists and anarchists were released with nothing but their names and livelihoods destroyed forever. Of the rest, 245 legal aliens were shipped off to Russia. It can happen here. It has happened here.

Now, at home and on the far side of the planet, the question for each of us is simple: Are we still a republic under a Constitution and its Bill of Rights, or shall we suffer dangerous and desperate moments in time to seduce us into abandoning our Constitution and its Bill of Rights? Congress has not declared war against a sovereign foreign nation, but the best blood of the republic is marching across a distant desert toward a foreign capital.

Writing in 1781 and publishing his words on February 27, 1787, Thomas Jefferson from his grave calls to us and warns us across more than two centuries:

"I tremble for my country when I reflect that God is just."

Douglas Savage practiced law in Canton, Ohio, for 24 years. He has published six novels and seven nonfiction books. His nonfiction texts are about the Civil War.

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