A FEDERAL JUDGE’S LANDMARK RULING UPHOLDS BIG BROTHER’S SURVEILLANCE OF OUR TELEPHONES AND COMPUTERS.

by Nat Hentoff for HUSTLER Magazine – June 2010

In a startling decision on January 21, 2010, Chief Judge Vaughn R. Walker of the United States District Court for the Northern District of California ruled that we Americans have no privacy rights in our telephone and e-mail communications whenever the federal government decides to spy on us for national-security reasons.

The judge dismissed a crucial case, Jewel v. NSA, that had been filed by the Electronic Frontier Foundation—the leading defender of Americans’ digital rights—on behalf of five AT&T customers. The plaintiffs claimed that the telecommunications mammoth had given the private information on their telephones and emails to the National Security Agency, the government’s nonstop collector and data banker of Americans’ electronic messages.

The EFF has appealed Chief Judge Walker’s disembowelment of these AT&T customers’ Fourth Amendment rights to the Ninth Circuit Court of Appeals, and eventually the U.S. Supreme Court will rule. The EFF is not giving up because the aim of this legal action, it explains, is to end “the NSA’s dragnet surveillance of millions of ordinary Americans—and hold accountable the government officials who illegally authorize it.”

At the very top of that accountability list are former President George W. Bush and his mirror like successor in these assaults on our rule of law, Barack Obama, whom I’ve come to describe as President George W. Obama.

During previous hearings on Jewel v. NSA before Chief Judge Walker, he seemed quite sympathetic to the EFF’s argument, but now he has given the Obama Administration a greatly empowering historic authority to learn intimate details of our private lives and everything else. See if you can understand Chief Judge Walker’s slippery reasoning. Although the government obviously cannot deny the NSA’s omnivorous spying on us, the five aggrieved AT&T customers, says the jurist, have no basis to claim “a particularized injury” despite whatever private information about them AT&T has given Big Brother NSA.

According to Chief Judge Walker, these plaintiffs have only a “generalized grievance” against the government, and that’s not the basis for a lawsuit because, he continues, nearly everybody in this country has a telephone and a computer connected to the Internet. Huh? Stunned, the EFF’s senior staff attorney, Kevin Bankston, sums up what this upside-down decision is going to mean for all of us if it is eventually upheld by the High Court: “The alarming upshot of the decision is that, so long as the government spies on all Americans, the courts have no power to review or halt such mass surveillance even when it is flatly illegal and unconstitutional.” This is only one of the reasons my next book’s title will be Is This America?

Chief Judge Vaughn R. Walker had already been lavishly shredding our privacy rights. On June 3, 2009, he threw out a series of lawsuits by customers of not only AT&T but also other telecommunications companies charged by irate customers with tuning the NSA into their personal phone calls and e-mails.

At that time, Chief Judge Walker cited a law justifying this mass dismissal of such lawsuits. In 2008 the Democrat-controlled Congress passed the Foreign Intelligence Surveillance Amendments Act, which declares no “civil action” lawsuit can be filed in any state or federal court against any entity [like AT&T] “for providing assistance to the intelligence community.” Such lawsuits must be automatically dismissed if the U.S. Attorney General verifies that this surveillance was authorized by the government. You got to trust your rulers.

Characteristically, then-Senator Barack Obama of Illinois ardently pledged on the floor that he would filibuster such a glaringly unconstitutional law. But when ultimately tested, Obama voted for it.

The Electronic Frontier Foundation is also appealing that thunderclap of a court ruling. Says EFF Legal Director Cindy Cohn of the continuing2008 FISA Act: “The retroactive immunity [for the telecommunication companies] takes away Americans’ claims arising out of the First and Fourth Amendments; violates the federal government’s separation of powers as established by the Constitution; and robs innocent telecom customers of their rights without due process of law.”

What recourse do citizens have when their government’s executive branch, along with a complicit Congress, behaves as King George III did against the American colonies? Benjamin Franklin warned of this grim possibility when he told a newly independent America right after the Constitution was signed: “We have a republic—if you can keep it.”

How can we keep it? In a January 8, 1789,letter to Richard Price, Thomas Jefferson wrote:“It is to me a new and consolatory proof that whenever the people are well informed, they can be trusted with their own government [and] whenever things get so far wrong as to attract their notice, they may be relied on to set them to rights.”

Would you say Americans are sufficiently well informed now that the Obama Administration is continuing the privacy-euthanizing legacy of the Bush-Cheney Administration? Will we act to restore our individual rights in this purportedly self-governing republic?

I didn’t see any headlines or demonstrations in the streets when Chief Judge Walker encouraged the National Security Agency to keep tracking what we say on the phone and on the Internet. Did you know about it?

Nat Hentoff is a historian of the Constitution, a jazz critic and a columnist for the Village Voice and Free Inquiry. His incisive books include The First Freedom: The Tumultuous History of Free Speech in America ; Living the Bill of Rights; and the forthcoming Is This America?
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THE FEAR OF OFFENDING CERTAIN GROUPS HAS GIVEN THE THOUGHT POLICE LICENSE TO SUBVERT HIGHER EDUCATION.

by Nat Hentoff

from HUSTLER Magazine – May 2010

Long ago, when I was a student at Northeastern University in Boston, a sociology professor—a white guy from South Africa—glared at us as he handed back our essay exams he had just graded. “You’re just giving me back,” he charged, “only what I said in my lectures! When are you going to start thinking for yourselves?”

Never having heard that from a teacher, I thought it was a helluva good teaching moment, and I was ashamed that I’d left out most of my disagreements with him in my paper. But that therapeutic explosion took place before the virus of “political correctness” had infected—and still does—so many of our colleges and universities. Whether liberal or conservative (a minority among the professoriate), there are professors who insist on the validity of only their views on politics, religion or irreligion, sexual proclivities, patriotism and the very meaning of life. As a member of the advisory board of FIRE (the Foundation for Individual Rights in Education), I get to continually see complaints across the country from out-of-step students and even out-of-step professors who, as Henry David Thoreau put it, always “hear a different drummer.”

They are punished for not being politically correct, sometimes suspended or expelled until FIRE roars in and turns the media spotlight on the school’s administrators or, if necessary, hauls them into court. I keep being surprised at this broken “higher education” system costing everhigher tuition. Before me is a report from FIRE that could have come from Iran, if FIRE had an extension there.

In Minneapolis, the College of Education at the University of Minnesota-Twin Cities is mandating that its students achieve “cultural competence” and the necessary “dispositions” to teach their future students politically correct beliefs and values to bring about “social justice.” To graduate from this institution, aspiring teachers must, for example, demonstrate knowledge of their own “white privilege” (if that’s their color) and develop a “cultural identity and intelligence” to ascribe to a “model of intercultural sensitivity.” Meaning: Watch your language so you don’t offend certain groups.

These students, and later the ones they teach, will be judged and graded by how effectively they develop their own stereotypes— only very positive stereotypes—of people on the basis of their color, race, gender, transgender, past oppression, etc. This is affirmative action-style “social justice.” So much for any eventual postracial society or, as Count Basie used to say when he was auditioning musicians, “every tub on its own bottom!” He wanted individual improvisers.

Any student at the “Minnesota College of Exclusionary Education” who deviates from this gospel will be dismissed. Moreover, applicants for admittance to the Twin Cities’ generator of future teachers will themselves be screened to see if they can be subjected to this degree of indoctrination.

In a letter, Adam Kissel—director of FIRE’s Individual Rights Defense Program— reminded University of Minnesota-Twin Cities President Robert H. Bruininks of a U.S. Supreme Court decision that, more than any other, gloriously defines the very essence of Americanism. The 1943 case West Virginia State Board of Education v. Barnette came about after children of Jehovah’s Witnesses were expelled from that state’s school system for refusing to salute the American flag. Their religion forbade their bowing to any “images.” The kids could return to public school only if they obeyed the Board of Education’s requirement that they be truly patriotic by saluting the Stars and Stripes. ( To them an “image.”) Moreover, if they did not dutifully return to school, their parents could be prosecuted for complicity in their juvenile delinquency.

The thought police at the University of Minnesota-Twin Cities don’t seem to grasp the ruling of Justice Robert Jackson, later chief prosecutor at the Nuremburg war crimes trials of the Nazi hierarchy: “Freedom to differ is not limited to things that do not matter much…. The test of its substance is the right to differ as to things that touch the heart of the existing order. If there is any fixed star in our Constitution, it is that [author’s emphasis] no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion or other matters of opinion.”

The alleged educators at the aforementioned Minnesota university should also be reminded that in Sweezey v. New Hampshire (1957) the Supreme Court declared: “Teachers and students must always remain free to inquire, to study and to evaluate to gain new maturity and understanding, otherwise our civilization will stagnate and die.” As I have often stressed in this column, far too many students and adults are uneducated in why they are Americans. As Thomas Jefferson reminded all of us in the Constitution: “If a nation expects to be ignorant and free, it expects what never has and never will be!” Thanks to Bush-Cheney and now Obama disabling the Constitution—along with politically correct institutions of higher learning— more of us don’t know who and why we are.

Nat Hentoff is a historian of the Constitution, a jazz critic and a columnist for the Village Voice and Free Inquiry. His incisive books include The First Freedom: The Tumultuous History of Free Speech in America ; Living the Bill of Rights; and the forthcoming Is This America?

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MAY 2010 – HUSTLER Magazine


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THE FEDERAL GOVERNMENT’S NEW ANSWER TO HATE CRIMES STRIKES A HORRIFYING BLOW AT BASIC TENETS OF THE CONSTITUTION.

by Nat Hentoff
From HUSTLER MAGAZINE – April 2010

In October 2009, when President Obama enthusiastically signed into law the Hate Crimes Prevention Act— which had passed the House and Senate overwhelmingly—there were cheers from the American Civil Liberties Union, the Anti- Defamation League, the National Gay and Lesbian Task Force and People for the American Way.

Missing in all the hosannas from these organizations was the cold fact that this hate-crimes statute mandating extra prison time for acts of bodily harm against certain protected classes of Americans violates the Constitution in three fundamental sections: the 14th Amendment’s “equal protection of the laws” for each individual American; the Fifth Amendment’s double jeopardy clause, which prevents anyone from being tried twice for the very same crime; and the First Amendment’s rights of free speech and thought.

How could this triple contempt of the Constitution be greeted with applause? See for yourself in what follows: Forty-five states already have hate-crime laws that apply to specially protected classes of race, color, religion or national origin, but the new statute expands all previous federal laws by providing extra punishment for serious bodily crimes motivated by a “victim’s actual or perceived gender; sexual orientation; gender identity, including transgender; and disability.”

That means if sentencing guidelines for the commission of a violent crime ordinarily mandate eight to ten years in prison, the convicted perpetrator of a hate crime against a member of the protected classes can be locked up for five to seven additional years. College of Charleston mathematics professor Herb Silverman, founder of the Secular Coalition for America, puts it as plainly as can be: “A crime is a crime regardless of the victim’s race, color, religion, national origin or sexual orientation.”

Silverman adds what President Obama, a former professor of Constitutional law, totally ignored: “A murdered white, heterosexual male is not less dead than a Hispanic, gay Christian.”

But should the convicted murderer of a white heterosexual get a lesser sentence than if he had killed a Hispanic, gay Christian? The answer is the 14th Amendment to the Constitution, which guarantees for “All persons born or naturalized in the United States [that] no State (or the Federal government) shall deprive any person of life, liberty or property, without due process of law; nor deny to any person…the equal protection of the laws.”

This new Hate Crimes Prevention Act also discards the clear rule of American law cited in the Fifth Amendment: “nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.”

Most hate-crime prosecutions will still be initiated in the 45 respective states that already have applicable laws. But under the Hate Crimes Prevention Act of 2009, if a federal prosecutor decides that a state court prosecuting an individual for a hate crime has been incompetent, indifferent or not serious enough, the case can then be transferred for the same crime into a federal court. That’s double jeopardy!

In the October 24, 2009, edition of the Washington Examiner, attorney Hans Bader explained the real-life dangers of double jeopardy: “When the government reprosecutes someone, it gains an enormous tactical advantage over the defendant from using the prior prosecution as a test-run, even if the defendant is innocent—making a guilty verdict possible even if the defendant is in fact innocent.”

Having reported on a number of state hate-crime prosecutions over the years, I’ve seen a defendant’s First Amendment right of free speech also twisted against him in a trial. For example, the prosecutor calls a witness who has heard a defendant using prejudicial, racial or religious comments at a bar some years earlier.

Such raw offenses against the Constitution are chronicled in Hate Crimes: Law & Identity Politics (Oxford University Press) by New York University law professor James Jacobs and researcher Kimberly Potter. Their definitive book demonstrates how “a hatecrime trial may become a wide-ranging inquiry into the defendant’s character, values and beliefs.”

Nonetheless, when Obama triumphantly signed into law the new Hate Crimes Prevention Act, Michael Keegan—president of People for the American Way—actually declared, “This is a major step towards ensuring equality under the law for all people.” Not all.

As evidenced by a glowing editorial titled “Civil Rights Advance” (October 28, 2009), the Washington Post was also delighted. Founding Father Thomas Jefferson emphasized that legislation should extend to actions only, not opinion. And let’s not forget that James Madison, author of the First Amendment, expressed to Jefferson: “We have extinguished forever the ambitious hope of making laws for the human mind.”

Not yet, Mr. Madison. Too many Americans have yet to read the Constitution with reasonable care. And I will never understand how the American Civil Liberties Union’s hierarchy can support hate-crime laws in the face of the 14th Amendment, the Fifth Amendment’s double jeopardy prohibition and the First Amendment, the rock on which the ACLU was founded.

Nat Hentoff is a historian of the Constitution, a jazz critic and a columnist for the Village Voice and Free Inquiry. His incisive books include The First Freedom: The Tumultuous History of Free Speech in America ; Living the Bill of Rights; and the forthcoming Is This America?

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APRIL 2010 – HUSTLER Magazine


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OBAMA PLEDGES THAT SUSPECTED TERRORISTS WILL BE TREATED IN ACCORDANCE WITH AMERICAN VALUES, BUT WE’VE HEARD THAT SONG BEFORE.

by Nat Hentoff
From HUSTLER MAGAZINE – February 2010

One of President Obama’s first executive orders closed the CIA’s secret prisons (“black sites”). But we still have no confirmed reports of deaths that took place there during interrogations—and where “missing” prisoners are. Their families would like to know.

Another move by Obama to show his desire to “reform” past Bush-Cheney violations of the U.S. Torture Law, the Geneva Conventions and the International Covenant Against Torture was his appointment of a multi-agency High Value Interrogation Unit within the FBI (marginalizing CIA interrogators). This team must adhere to the Army Field Manual’s interrogation standards, which purportedly outlaw physical force.

What about Low Value suspects? What standards for them?

However, as George Hunsinger of Princeton Theological Seminary and founder of the National Religious Campaign Against Torture reminded the President, even the Army Field Manual “allows for certain abusive techniques that are tantamount to torture—sleep deprivation, partial sensory deprivations, stress positions” that sometimes can be used in combination to ensure the cruel, inhuman, degrading treatment that can qualify as war crimes.

What most startled me in this humane President’s new directions is the continuation of “renditions,” the abduction of terrorism suspects anywhere who are then sent to other countries to be interrogated. In the Bush Administration, to be thus rendered outside our laws was to be tortured, as hundreds most cruelly were.

While planning his candidacy for the Presidency to bring us “Change We Can Believe In!” then-Senator Obama wrote in the Summer 2007 issue of Foreign Affairs : “To build a better free world, we must first behave in ways that reflect the decency and aspirations of the American people. This means ending the practices of shipping away prisoners in the dead of night to be tortured in far-off countries [and] of detaining thousands without charge or trial.” Whatever happened to that Obama?

But to be skeptically fair, Obama claims that his renditions of kidnapped suspects will only be to nations that pledge these suspects will not be tortured. In August 2009, State Department spokesman Ian Kelly announced that the Obama Administration would “establish a kind of monitoring mechanism that allows us to make sure…the prisoners…are not being abused. The details of this will have to be worked out.”

Maybe, the State Department flack added, officials from the American consulate or a private contractor will do the monitoring. (Some of the private contractors on assignment in Iraq and Afghanistan have become notorious for their own skills at cruel, inhuman and degrading treatment of suspects.)

However, this pledge of “assurances” that our shackled, rendered prisoners will be treated in accordance with American values was intoned, ritualistically, for years by President George W. Bush, Secretary of State Condoleezza Rice and other caring officials of the Defense and Justice departments.

These raw official lies have been vividly skewered in the 2004 report by the CIA’s former Inspector General, John Helgerson; Dana Priest of the Washington Post and scores more U.S. and foreign reporters; Jane Mayer of The New Yorker ; and starkly documented books.

Aziz Huq, a lawyer who has represented terrorist detainees and currently is an assistant professor at the University of Chicago, told the naked truth to the Washington Times (August 26, 2009): “These assurances, as a matter of law and fact, are worth slightly less than the paper they are written on.”

In this country the first news break of the actual treatment inflicted on rendered terrorism suspects was a front-page exposé by Dana Priest and Barton Gellman in the December 26, 2002, Washington Post. As I quoted from their report in my 2004 book, The War on the Bill of Rights and the Gathering Resistance (Seven Stories Press): “The alleged terrorists [at the U.S. detention facility in Bagram, Afghanistan] are commonly blindfolded and thrown into walls, bound in painful positions…after they have often been softened up by MPs and U.S. Army Special Forces troops who beat them up and confine them in the tiny rooms…. Medication to alleviate pain is withheld.”

And dig this! In 2002, just as will happen during the Obama renditions, Priest and Gellman quoted an American official with knowledge of these exported CIA-style “enhanced interrogations”: “If we’re not there in the room,” said the informed official, “who is to say [what happened there]?”

But what if an Obama monitor actually got into a prison we rented overseas and asked a suspect if he had been tortured? One of Bush’s rendered prisoners, Maher Arar— whose case became known around the world—said that when he was finally released, he was too scared to tell the monitor, who would soon be gone.

And, in view of his far-from-transparent Presidency so far, do you believe that Barack Obama will even once seriously check to find out if a suspect he has rendered was tortured? And think about this: Why does the President continue to send suspects to be interrogated in other countries? For what other purpose than to have alleged information extracted by any means necessary. The Dick Cheney legacy continues.

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Nat Hentoff is a historian of the Constitution, a jazz critic and a columnist for the Village Voice and Free Inquiry. His incisive books include The First Freedom: The Tumultuous History of Free Speech in America ; Living the Bill of Rights ; and the forthcoming Is This America?

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THE NEW SENATOR FROM MINNESOTA BRAZENLY QUESTIONS THE GOVERNMENT’S SURVEILLANCE SUBTERFUGE BUT CAVES AT CRUNCH TIME.

by Nat Hentoff
From HUSTLER MAGAZINE March 2010

I was not a fan of Al Franken’s comic turns, much preferring those instigators who went deeper into our hypocrisies, namely Lenny Bruce, Dick Gregory and Richard Pryor. But Franken has suddenly begun his career in the U.S. Senate as a mentor on the Constitution’s rule of law—a dim memory, if that, for many of his colleagues.

To his surprise, and mine, Franken won a seat on the Senate Judiciary Committee even though he is not a lawyer. But unlike many lawyers in the Senate, Franken has deeply researched the largely un-American USA PATRIOT Act. Rushed into law soon after 9/11 before most members of Congress had a chance to even read it all, its draconian provisos remain almost entirely intact.

On September 29, 2009, David Kris—assistant attorney general of the Justice Department’s National Security Division—appeared before the Senate Judiciary Committee. Kris was pitching to renew a section of the PATRIOT Act that permits the FBI to obtain a warrant from the secret Foreign Intelligence Surveillance Court, which does not allow appeals from us mere citizens, thus totally repealing the Fourth Amendment in the Bill of Rights.

These are “John Doe” warrants that do not denote the suspect’s name, nor the specific location of the phone, e-mail or any other device the suspect may use. It could also be a pay phone in any neighborhood.

If this unnamed suspect uses a phone in your office, a bar you frequent or a social club or nearby pay phone, the FBI tap on those phones will pick up all conversations, including yours. And these are national wiretaps; the FBI doesn’t have to get a warrant from any city or state jurisdiction. We’re all immediately covered. Neither President Obama nor his attorney general, Eric Holder, has expressed any objection to this torpedoing of the Fourth Amendment.

When the Justice Department’s David Kris was telling the Senate Judiciary Committee how vital these roving tools against terrorism are, Franken startled him and, I expect, most of the rest of the committee. The freshman senator announced that after taking his seat, he was given a copy of the Constitution—and by gum he actually read it!

Franken then read aloud the actual Fourth Amendment to the Justice Department official who had been extolling roving wiretaps: “No warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Looking at this representative of our Justice Department, Franken said, “That’s pretty explicit language.” So how can roving wiretaps be within the rule of law if they don’t particularly name the targeted suspect or the particular place to be tapped?

Assistant Attorney General David Kris fumbled and sputtered, “This is surreal.”

It sure is! How many times since the Bill of Rights was ratified in 1791 has a member of Congress, an attorney general or a President asked a law-enforcement agent or a prosecutor to define any part of the Bill of Rights and then justify a law that turns the Founders’ language upside down?

Senator Franken’s target, the man from the National Security Division, finally said that the courts had ruled that even if the FBI didn’t name the suspect or the particular place for the wiretap, a description of the target would satisfy the Constitution.

Think about that. Just a description? How many people resemble you in a general way? Height, hair color, posture, gait, skin color, age as far as can be guessed, attire, facial characteristics?

Franken’s question that seemed so “surreal” to government lawyer Kris has deep roots in our history as a precipitating cause of the American Revolution. The Founding Fathers gave us the Fourth Amendment because King George III’s officers in the American colonies used what they called “a general search warrant” to invade homes and offices without going to any court. The British king’s men wrote those warrants themselves.

When Samuel Adams and the Sons of Liberty sent details of the brutal abuses of these “general warrants” around the colonies through the Committees of Correspondence (the Internet of the time), the cumulative outrage was a significant factor in igniting the American Revolution.

But little American history is now being taught in our schools, and there have been no rallies or marches in the streets by outraged citizens protesting roving wiretaps. Congress may eventually tweak roving wiretaps a trifle if a patriotic senator has taught American values to enough of his or her colleagues. But anyway, watch what you say on the phone or on the Internet.

But why doesn’t Washington’s elite press corps ask President Obama, who purportedly once taught Constitutional law, about using wiretaps and to define the stark differences between his disregard for the separation of powers, due process, torture practices, etc., and the commands of the Bill of Rights and the rest of the Constitution?

I’d suggest you write such questions directly to the President, but affixing your name to such critical messages comes with a caveat. You might well be put in a database the FBI employs to search for “patterns,” possibly making you a “person of interest” not only to the FBI but also to Homeland Security and state and local police. After all, we continue to live in an ever-expanding surveillance society.

But now, guess what? Al Franken finally voted to keep roving wiretaps unchanged in the PATRIOT Act bill that the Senate Judiciary Committee recently sent to the floor for further debate. So much for Franken’s Fourth Amendment principles! Whom can we believe these days?

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Nat Hentoff is a historian of the Constitution, a jazz critic and a columnist for the Village Voice and Free Inquiry. His incisive books include The First Freedom: The Tumultuous History of Free Speech in America ; Living the Bill of Rights ; and the forthcoming Is This America?

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MORE AND MORE AMERICANS NOW QUESTION HOW OBAMA IS DEALING WITH HEALTHCARE REFORM, PERSONAL PRIVACY AND OTHER KEY ISSUES.

by Nat Hentoff
for HUSTLER MAGAZINE – JANUARY 2010

As Barack Obama approached his second year in the White House, the jubilant campaign shouts of “Change we can believe in!” and “Yes, we can!” were hardly ever heard during his public appearances across the nation. In August 2009, as the President was in New Hampshire defending his incendiary healthcare reforms, a protester shouted, “Keep your change, and I’ll keep my freedom!” Other demonstrators carried signs that, quoting James Madison and Thomas Jefferson, decried the government’s overreaching into personal liberties.

And in Pennsylvania, where newly minted Democrat Arlen Specter was a surrogate for Obamacare, an insistent citizen reminded the state’s senior senator, “This isn’t just about healthcare,” while another proclaimed, “You are trampling on our Constitution!”

Indeed it isn’t just about healthcare, but whatever bill is signed by Obama, the mutinous state of much of the nation may well impact the 2010 elections nationwide.

As I have detailed in previous HUSTLER columns, Obama has not only channeled Bush and Cheney in his assaults on the Constitution but has also gone further. Even skeptical me expected that the new President would act to get the Democratic Congress to revoke the Bush Administration’s startling rush in December 2008 to expand the FBI’s reach to start an investigation—without any evidence or judicial supervision—of any of us who might somehow have endangered national security.

But President Obama has not said a word about this resurrection of J. Edgar Hoover. In August ’09 I was startled to find out that Obama’s Office of Management and Budget is planning to collect the personal information of every user of federal government Web sites.

Like many Americans, I click onto the White House Web site, as well as those of the Supreme Court, the Congress and a range of government agencies and also those providing information on medical and educational issues.

We’re all familiar with the “cookies” that all kinds of commercial operations can later track as we click on sites that reveal our tastes, buying habits and other patterns of our lives. But never before has the federal government collected our computer cookies when we visit its Web sites.

“No American,” says Christopher Calabrese, counsel for the ACLU’s Technology and Liberty Project, “should have to sacrifice privacy— or risk surveillance—in order to access free government information.”

Why would the Obama Administration want these cookies? To put us into another of their interconnected databases. Will the government let us know how our cookies are being used? But, of course, they’re classified!

One of my daughters, Jessica Hentoff— known in St. Louis and elsewhere as “The Circus Lady” for running and performing in Circus Harmony, whose troupe travels widely— is a constitutionalist. In reaction to the continually overreaching Obama Administration, she recently sent me a button: “No, you can’t have my rights—I’m still using them.”

Wholly unintentionally, both this and the previous imperious administration have viscerally awakened a considerable number of Americans—but not enough yet—to why and how this constitutional republic has lasted longer than any other such attempts anywhere.

But for the rest of Obama’s first term, not only he will be challenged to remember and act on the Constitution he used to teach at the University of Chicago. In demanding a national independent commission on torture, commentator Carla Seaquist (Seattle Times, August 7, 2009) cited questions that We the People should ask of such a commission—and of ourselves—if we’re to move Congress to set up the commission: “Churchgoers approve torture in greater percentages than nonchurchgoers, by 54 to 42 percent, according to a recent study by the Pew Forum on Religion and Public Life. For the love of God, how could this be possible?

“Lawyers for the Bush Administration concocted legal justifications for torture. How did the Department of Justice become the Department of Expediency [as it continues to be under Obama]? Some lawyers working in national security [under Bush and Obama] assert a Commission on Torture would have a ‘chilling effect’ on their actions. … Good. Any notions of bending the law to immoral ends should be chilled.”

So the sometimes-shouting disquiet around the country is not just about healthcare. And it also needs to be about us if we are not to have other such administrations as Bush-Cheney and Obama. It took too many of us too long to remain silently complicit as U.S. and international laws were cruelly broken in our name. Why did it take us so long?

Now, under President Obama, there is an awakening—embodying the spirit of Founding Father Samuel Adams, the Sons of Liberty and the Committees of Correspondence, who precipitated the still-unfinished American Revolution.

In the spirit of their resistance to King George III, hip humorist Dave Barry cautions: “As Americans, we must always remember that we all have a common enemy, an enemy that is dangerous, powerful and relentless. I refer, of course, to the federal government.”

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Nat Hentoff is a historian of the Constitution, a jazz critic and a columnist for the Village Voice and Free Inquiry. His incisive books include The First Freedom: The Tumultuous History of Free Speech in America ; Living the Bill of Rights ; and the forthcoming Is This America?

by Nat Hentoff

As of now, it’s highly unlikely that George W. Bush and Dick Cheney will be punished, at least in U.S. courts, for the war crimes they ordered under our laws and international treaties— except by history. But some of their accomplices are becoming apprehensive. A bipartisan Senate Intelligence Committee report has disclosed that former National Security Advisor Condoleezza Rice had authorized waterboarding (known to its victims as “controlled drowning”) of suspected terrorists in 2002. Yet she persistently defended Bush’s “enhanced interrogations” techniques here and around the world.

Rice is back at Stanford University, a professor of political science, assuring students— as she echoes the unrepentant Bush and Cheney—that everything done to prisoners was legal. However, on May 4, 2009, a delegation of Stanford students, faculty and alumni dramatically nailed a petition to the door of the university’s president, demanding that Professor Rice be held accountable and, if facts warrant, be prosecuted.

It has already been revealed here in the States and globally that an extensive investigation by the Justice Department’s ethics police—the Office of Professional Responsibility—had charged the three lawyers responsible for the infamous “torture memos”—John Yoo, Steven Bradbury and Jay Bybee—with such flagrantly unethical conduct that they be referred to bar associations for possible disciplinary action. “That means,” reported Ari Shapiro on National Public Radio, “once-prominent government lawyers could be barred from ever working as attorneys again” and that Bybee (now a federal appellate judge on the Ninth Circuit) could be thrown off the bench.

Meanwhile, Spain—one of the nations whose justice system includes the “universal jurisdiction” to prosecute citizens of other countries for war crimes—has launched a criminal investigation of not only Yoo and Bybee, but also four other high-level Bush-Cheney operators, including former U.S. Attorney General Alberto Gonzales. The charges are that they “participated actively and decisively in the creation, approval and execution of a judicial framework that allowed for the deprivation of fundamental rights of a large number of prisoners, the implementation… of torture…[and] the protection of the people who participated in illegal tortures.”

In charge of Spain’s inquiry is the John Wayne of international prosecutors, Baltasar Garzon, who relentlessly pursued the monstrous Chilean torturer—and master of making suspects disappear—Augusto Pinochet, ultimately indicted under “universal jurisdiction” in Chile.

Some other countries, angered by the kidnapping of their citizens in CIA “renditions” to be tortured outside their borders, could possibly indict Bush, Cheney and Donald Rumsfeld. President Obama would not allow those defendants to be extradited, but labeled as international pariahs, they may then be afraid to ever travel abroad again.

But what about us, the great majority of American citizens who allowed eight years of systematic torture and other war crimes by a Presidential administration that substantively was never legally made accountable by our elected representatives in Congress?

I expect that for years to come, an increasing number of Americans—very much including students—will be confronted with the ever-increasing revelations raised by Jacob Weisberg, editor in chief of the Slate Group (Slate.com). In the May 11-18, 2009, Newsweek he examined “Our Tacit Approval of Torture.” He pointed out that unlike a previous world disgrace—the internment of Japanese- Americans during World War II—”waterboarding was ordered and served up in secret.”

Weisberg added, however, “By 2003, if you didn’t understand that the United States was inflicting other tortures upon those deemed enemy combatants, you weren’t paying much attention…. Well before the nation reselected George W. Bush in 2004, the country’s best investigative reporters had unearthed the salient aspects of his [Bush's] torture policy.”

In April 2004, Seymour Hersh broke the Abu Ghraib story (you could see the photos on 60 Minutes ). Shortly thereafter Newsweek revealed that “Cheney’s lawyers had declared waterboarding a legal and acceptable practice.” Then in September 2006, John McCain and other lawmakers passed the Military Commissions Act, “which shielded U.S. interrogators from potential prosecution for torture.” So Congress thought. But an independent investigation may bring about prosecutions that many CIA interrogators have long feared.

Don’t worry. Those Americans who tacitly and complicitly approved our war crimes—by not raising hell with Bush, Cheney and Congress— won’t be indicted as coconspirators, But, as Jacob Weisberg suggested, “What we need now is a public airing through Congressional hearing and perhaps an independent commission,” an idea President Obama firmly resists.

Most Republicans in Congress are angrily opposed to making their former President and his team accountable. Most of their Democratic counterparts agree with Obama that he not be “distracted” from his urgent domestic and international challenges. So it is up to We the People! How many of the tacit Americans, who by their inaction scandalized this nation even among our allies, are willing to demand, in the streets if necessary, that no future administration will be confident it can get away with the atrocities now thoroughly chronicled in official documents and such searing books as Jane Mayer’s The Dark Side ? Again, this time it’s clearly up to you!

by Nat Hentoff

AS AN ENGLISH NOVELIST FORESAW, BIG BROTHER KEEPS GETTING BIGGER AND MORE INTRUSIVE.

During the Presidential campaign, neither candidate has shown any urgent concern for how pervasively this country is becoming what George Orwell envisioned in his futuristic novel 1984. Nor has there been any marked alarm from the citizenry at the extinguishing of our personal privacy—revealing how conditioned Americans have become to being under the government’s unblinking eye.

An exception is the alarm raised in an April 10, 2008, editorial in the conservative Washington Times. Titled “D.C. Police State,” it condemned the District of Columbia police’s “unprecedented access to a city network of 5,200 traffic, school and public housing cameras— now to be used for anticrime and antiterrorism purposes in the D.C. police closedcircuit surveillance system.”

The shaken editorial writer asked, “Do we then install cameras inside homes and offices and automobiles?”

Not yet. But no matter who’s in the White House and who controls Congress in 2009, another 9/11 or its equivalent—a portable nuclear device detonated in New York City’s subway system, for instance—could provide a further negative answer to a recent indignant protest by Andrew Davis of the Libertarian Party: “In America, people should not be forced to assume that they’re being monitored by law enforcement throughout the day.”

However, I’ve been alerted by the Washington- based Defending Dissent Foundation about a Justice Department plan that is to be implemented by the end of this year—a grim farewell gesture by Big Brother George W. Bush.

Have you ever heard of the DNA Fingerprint Act of 2005? I hadn’t until Sue Udry, Defending Dissent’s director, reported that once this proposal kicks in, “federal agencies will be required to collect DNA samples of everyone arrested prior to conviction, when you’re still supposed to be considered innocent.”

I turned to Vincent Warren, executive director of the Center for Constitutional Rights (CCR), which is often ahead of the ACLU in detecting and opposing government raids on the Constitution. He explained that “at the end of 2005 a little-noticed provision— the DNA Fingerprint Act—was slipped into the Violence Against Women Act (VAWA) reauthorization bill that provided the federal government with broadly expanded powers to collect and permanently keep DNA samples from millions of people. Under this new law the government would collect DNA from anyone arrested for any crime—whether or not they are convicted—any non-U.S. citizen detained by federal authorities for any reason, and everyone in federal prison.”

This would, of course, include those dangerous Americans exercising their First Amendment right “peaceably to assemble and to petition the government for a redress of grievances” as they denounce an egregious edict like the DNA Fingerprint Act.

If elected President, would Barack Obama go along with this boundless invasion of our privacy, aware that, as CCR attorney Matthew Strugar warns, “DNA is not a simple fingerprint— it contains vast amounts of private medical information the government has no business keeping on us”?

Well, candidate Obama approved the “compromise” Foreign Intelligence Surveillance bill. As the ACLU points out, this legislation is “an unprecedented extension of government surveillance over Americans…[that] permits only minimal court oversight” over any President’s serial violations of the Fourth Amendment.

Yet Obama concurred with George W. Bush and both Republican and Democratic leaders in Congress that this compromise “firmly reestablishes basic judicial oversight over all domestic surveillance in the future.” A President John McCain, not a notable champion of the Bill of Rights, would hardly disagree.

Not only the Justice Department will be able to harvest the most intimate details of your medical records. Reading the fine print of the Justice Department’s presentation of this rule in the April 18, 2008, Federal Register reveals: “This statute also provides that the Attorney General may ‘direct any other agency of the United States that arrests or detains individuals or supervises individuals facing charges to carry out any function and exercise any power of the Attorney General under this section.’”

An incalculable number of federal eyes would be able to sift through whatever signals your DNA reveals about your potential to be a risk to America’s national security.

As the climate of fear darkens in this nation, it’s not inconceivable that the government could look with interest at a proposal in Orwell’s native land by Gary Pugh, director of forensic services at Scotland Yard. In the March 16, 2008, issue of The Observer, Pugh summarizes how close we are coming to 1984: “Primary schoolchildren should be eligible for the DNA database if they exhibit behavior indicating they may become criminals in later life…some experts believe it is possible to identify future offending traits in children as young as five.”

But why not go further back? There are now multidimensional sonograms that clearly show the behavior of fetuses in the womb. This might be a new branch of forensics, leading to national security abortions. You think I’ve lost my marbles? When Orwell’s 1984 was first published in 1949, some readers scoffed at haunting passages such as this: “How often, or on what system, the Thought Police plugged in on any individual wire was guesswork. It was even conceivable that they watched everybody all the time. But at any rate, they could plug in your wire whenever they wanted to.”

That ain’t fiction anymore. 

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Nat Hentoff is a historian of the Constitution, a jazz critic and a columnist for the Village Voice and Free Inquiry. His incisive books include The First Freedom: The Tumultuous History of Free Speech in America ; Living the Bill of Rights ; and the forthcoming Is This America?

by Nat Hentoff

THE SECRETARY OF STATE IS AS CULPABLE AS EVERYONE ELSE IN THE ADMINISTRATION WHEN IT COMES TO THE TORTURING OF SUSPECTED TERRORISTS.

Much has been made of George W. Bush’s having appointed not only a black secretary of state, but also a woman. But although constantly in flight around the globe, what has Condoleezza Rice actually accomplished— aside from being a loyal conjugator of the President’s chronic doublespeak?

For example, whenever questioned about her commander in chief’s having given special covert powers to the CIA to operate secret prisons where terrorism suspects are waterboarded— among other violations of U.S. and international laws—as well as to kidnap alleged terrorists from the streets of other countries to be tortured in the cells of Syria, Egypt, Jordan and other CIA soul brothers, Rice perkily echoes Bush’s story assurances: “The United States government does not authorize or condone torture of detainess. Torture, and conspiracy to commit torture, are crimes under U.S. law, wherever they may occur in the world.”

As former White House Press Secretary Scott McClellan says of Rice in his missile of a book, What Happened: Inside the Bush White House and Washington’s Culture of Deception, “I was struck by how deft she is at protecting her reputation. … History will judge her harshly as the person responsible for overseeing a number of the defining…policies of the Bush Administration.”

Historians will take notice of references to Rice in Stephen Grey’s meticulously sourced Ghost Plane: The True Story of the CIA Torture Program. Grey asked former U.S. Ambassador Edward Walker, “When Condoleezza Rice and the President now stand in front of people and say we don’t send people to countries where they torture, are they telling the truth?”

“No,” said Walker,“they’re not telling the truth.”

But what startlingly revealed how unclean Rice’s hands are of torture was a May 20, 2008, report by a rare phenomenon in the administration: an insistently independent inspector general from the Justice Department who has been crucial in covering up Bush’s unprecedented lawlessness in the sacrosanct name of national security.

On the release of Inspector General Glenn Fine’s report, the American Civil Liberties Union triumphantly heralded the revelation that “officials at the highest levels of the government— including the White House—received reports on the abuse of prisoners in U.S. military custody overseas as early as 2002, [and] today’s government report is the first to identify that then- National Security Advisor Condoleezza Rice received complaints of torture. ” (My emphasis.)

In addition to Rice, among the other very high-level officials who were given such proof—by aghast FBI field agents witnessing CIA torturing of prisoners—were Bush and Attorney Generals John Ashcroft and Alberto Gonzales. Worse yet, our chief law enforcers— without informing Congress or permitting judicial review—actually authorized these crimes. They signed off on justifying memoranda by such Justice Department lawyers as notorious John Yoo, the primary legal authority to enable the U.S. to become a torture nation.

The present attorney general, Michael Mukasey—steadfastly covering up for the ultimate lawbreaker in the White House—has also diligently tried to prevent any prosecution of the hands-on torturers in the CIA, the military or other government agencies. As he has testified in Congress, Mukasey maintains that none of these perpetrators of what our laws and the Geneva Conventions call war crimes can be held accountable because they acted on legal opinions from the Justice Department!

Under this reasoning, the circle of criminality must remain unbroken because it was the Justice Department that originally and subsequently issued opinions—classified until recently— authorizing the torturing that so appalled FBI agents in attendance that FBI Director Robert Mueller forbade his agents from taking part in those interrogations.

The no-nonsense director of the ACLU’s Washington legislative office, Caroline Frederickson, responds that “the filtering up of information from FBI agents to high government officials makes claims of immunity even more incredulous.”

Obviously, all these criminals—high, midlevel and underlings in the field—have nothing to worry about unless the next President and the next Congress demand and conduct investigations armed with subpoena powers. If they don’t, other countries may put these rampant abusers of international law on trial.

Should that happen, there are countries that Condoleezza Rice—once she leaves government service—may decide not to visit for fear of being put on trial. She is well aware that 25 CIA agents are currently being tried in Milan, Italy—in absentia—for abducting an Egyptian Muslim from Italian soil during one of their “extraordinary renditions.”

What is Condi saying these days about her role as a very major player in a foreign policy that has included sending persons under suspicion to foreign prisons, where electrodes are attached to their private parts? According to the Associated Press, on May 22, 2008, Rice— talking to Google employees at the company’s California headquarters—tried at first to emphasize that immediately after 9/11 the Bush Administration was “in an environment in which saving America from the next attack was paramount.”

Paramount to America’s rule of law? Well, Condi said, America was in “a different place then.” And with her customary resolve to keep her hands clean, the loyal servitor quickly added, “But even in that environment, President Bush made clear that we were going to live up to our obligations at home and to our treaty obligations abroad.” Indeed, as the AP reported, Rice assured her audience that even back then, “Bush’s top aides had been scrupulous in making sure the early interrogations conformed to existing rules.” The rules of the Spanish Inquisition or Stalin’s gulags? I have no doubt that after leaving her lofty post Rice will retain a prestigious role—perhaps as a college president—and will experience nary a pang of guilt.

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Nat Hentoff is a historian of the Constitution, a jazz critic and a columnist for the Village Voice and Free Inquiry. His incisive books include The First Freedom: The Tumultuous History of Free Speech in America ; Living the Bill of Rights ; and the forthcoming Is This America?

by Nat Hentoff

THE YOUNGEST VICTIMS OF THE “WAR ON TERROR.”

It is now clear that from the very top of the chain of command in the Oval Office the Bush Administration has systematically violated the 1984 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (including complicity in torture). The United States and 151 other nations signed that convention.

If there is ever an international war crimes tribunal— or criminal procedures in the United States—Bush, Cheney and the highest-level lawyers in the Justice and Defense departments should not be alone in the dock. Wherever terrorism suspects have been held, complicit in the torture and other barbarisms are military doctors and psychologists.

How is the waterboarding torturer to know if he’s about to go too far and kill the suspect? An attending physician will tell him. For a newly published, meticulously sourced indictment of these crimes that involve the enlistment of medical professionals, see Torture Team: Rumsfeld’s Memo and the Betrayal of American Values by international lawyer Philippe Sands.

The definitive book on the criminal involvement of doctors and psychologists is Oath Betrayed: Torture, Medical Complicity and the War on Terror by Dr. Steven Miles, a professor of medicine and bioethics at the University of Minnesota. Dr. Miles, whom I’ve interviewed at length, began his deep research to find out why doctors and psychologists in Afghanistan, Iraq and Guantanamo failed to intervene in the torture and other mistreatment of prisoners. Such abuse was partially exposed when CBS-TV released those infamous Abu Ghraib prison photographs, which became a prime recruiting tool for apprentice terrorists around the world.

In Oath Betrayed, Dr. Miles also revealed that medical personnel gave the torturers information— from prisoners’ records and interviews— about what they most feared. So, as Miles reported, doctors and psychologists were actually “involved in setting the harshness of the interrogation plans.” And, dig this: As loyal implementers of Bush Administration terror policy, they delayed reports of homicides (murders) when the interrogators lost control of themselves.

That’s why it took so long for We the People to know what atrocities were being carried out in order to, as the President likes to say, “protect American values.”

Dr. Miles offered additional shocking revelations in the Fall 2007 issue of the American Bar Association’s publication Human Rights. In “Child Prisoners in America’s War on Terror,” which has largely been ignored even by otherwise-intrepid American journalists reporting on this amoral Presidency, Miles began: “German media and Norwegian officials credibly cite a Red Cross report that more than 100 children were detained in various prisons in Iraq. Human Rights Watch reports that three of the 60 or so children once imprisoned at Guantanamo Bay were less than 15 years old.”

Dr. Miles continued with the especially chilling: “No statistics exist for child prisoners in Afghanistan.” Bush-Cheney’s initial “victory” was over Afghanistan’s Taliban, which is now murderously resurgent.The Washington Post ’s Dana Priest has revealed that dungeons at the Bagram Air Base in Afghanistan are among the most horrifying CIA “black sites.” There suspects were “softened up” for torture by the brutal Special Forces troops so prized by Donald Rumsfeld. We may never know how many children were “disappeared” into those secret prisons and what happened to them.

Nor do we know how many detained children were killed there or in our other prisons. Noted Dr. Miles: “Reporters are not allowed to photograph their quarters. … The Abu Ghraib photographs depict men being abused; the pictures of children and women being abused remain classified.” Did you know that? I didn’t.

Having gone through tens of thousands of pages of declassified Defense Department documents, Miles found “the only official record of a child prisoner’s death.” It was in a footnote in the appendix of a 200-page Army Surgeon General’s report about detainees (calling them “prisoners” was forbidden) with advanced-stage tuberculosis. A physician cited “one child hemorrhaging from his cavitary TB and dying.”

If there ever is a war crimes trial of those from Camp Cropper near Baghdad Airport (where this nameless child expired) who are responsible for that small corpse, Dr. Miles’s threnody should be in the court record: “No other document describes this child who died bleeding into his (or her?) lungs while in U.S. custody. The Pentagon does not list this prisoner in its list of deaths. It has not released any death certificate, autopsy report or investigation, as is mandated by Geneva Conventions that the United States says were applicable to its prisons in Iraq.

“We do not know whether the parents were told if, how, or when their child died.…We do not know if the child’s body was returned to the family to bury or if the family was informed of the location of the internment.”

Dr. Miles also cited a sworn statement from General Janis Karpinski, former commander of Abu Ghraib. She used to talk to “juveniles,” as she called them, who kept being brought into that reallife horror movie. “I saw a kid,” Karpinski said, “that looked like he was eight years old. He told me he was almost 12. He told me his brother was with him, but he really wanted to see his mother. Could he please call his mother. He was crying.”

The now-defrocked general maintained that she saw no abuse of juveniles at Abu Ghraib. (If she had and said so, she would have had to do something about it.) Dr. Miles dryly added, “Karpinski does not mention if she helped the boy contact his mother.”

As he reported, a former sergeant at Abu Ghraib, John Ketzer, did see “a dog handler and another soldier allow a leashed but unmuzzled dog to ‘go nuts’ and lunge at two children.”

 Dr. Miles has called what happened—and still may be happening—to Bush’s child prisoners “crimes against the innocent.” But the majority of members of Congress who have never demanded bringing criminal charges against the ultimate torturers and abusers of prisoners of any age are not innocent of these crimes. 

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Nat Hentoff is a historian of the Constitution, a jazz critic and a columnist for the Village Voice, the Washington Times and other publications. His books include The First Freedom: The Tumultuous History of Free Speech in America ; The War on the Bill of Rights—And the Gathering Resistance ; and the forthcoming Is This America?

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