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Archive for Monday, March 19, 2007

Clamor important to strong U.S. judiciary

March 19, 2007

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— American justice is becoming an oxymoron to a substantial number of U.S. friends abroad. Few of them will delve deeply enough into Gonzalesgate or the perjury conviction of Scooter Libby or "renditions" by the CIA to see any silver linings in the leaden clouds now smothering the Bush administration.

Beneath the clouds of scandal, however, the U.S. legal system and its civil libertarians are alive, well, and functioning in a robust - at times even excessive - fashion. Think of it, as Alexis de Tocqueville did, as the healthy "clamor" that defines and preserves American democracy.

The outcry over Attorney General Alberto Gonzales' ham-handed sacking of eight U.S. attorneys last year provides the latest evidence that far-left or libertarian hyperbole about the rise of "fascism" in an American "police state" is wildly off the mark. So does the conviction by 11 standard-issue citizens of Libby, the most powerful staffer for the most powerful vice president in history. Some police state.

Fortunes and reputations are made in show business solely by ridiculing, denigrating and belittling President Bush, Vice President Cheney and their acolytes. Real dissent today consists of swimming against this tide of invective by defending Bush and Cheney - should they unexpectedly do something that merits defense, and assuming that they could adequately explain it to a disillusioned and skeptical American public.

The hapless Gonzales has a Himalayan-sized mountain to climb in hoping to persuade Republican and Democratic senators that he did not deceive them as he forced open U.S. attorney posts to reward, above all, a protege of Karl Rove, the political mastermind whose involvement in policy matters has helped shred the reputations of Bush, Cheney and the administration at large. Rove seems not to be affected, since he never had much of a reputation to lose.

This political failure at the center of an overly centralized White House and Cabinet - did they miss W.B. Yeats' memo warning that things fall apart when the center does not hold? - distracts attention from the vigorous pushing back by American courts, civil liberties organizations and, yes, the media against unreasonable and at times illegal restrictions on personal liberties that the Bush White House has tried on in the post-9/11 era.

Many of the measures the administration has put into place can be defended as needed and appropriate in fighting the nebulous war against terror networks and states committed to destroying America. But the administration's insistence that it must and will decide on those measures alone - without adequate consultation with Congress or consideration of international law - has lost hearts and minds of allies abroad.

The muscular, decisive approach may have served Rove's political aims in 2002 and 2004. But the loss in confidence abroad is so serious that a former KGB colonel who is systematically stamping out democratic institutions in Russia can lecture the United States for showing "greater and greater disdain for the basic principles of international law" - and be taken seriously by some West Europeans who heard Vladimir Putin say these words in Munich last month.

Putin protests too much, of course. Careful examination - admittedly an endangered species in this 24/7 electronic and Internet era - of the linings of these clouds suggests that Americans and most American officials remain committed to the rule of law. What Americans are missing is greater cooperation between, and clearer guidance from, the executive and legislative branches of government in reconciling civil liberties and counterterrorism needs.

Thus that job now falls to the judiciary. So I recently asked the best mind on the Supreme Court how civil liberties were doing in politically polarized (perpetually paranoid?) America.

Justice Stephen Breyer understandably steered away from a direct answer when I put the question to him after a talk at the French-American Foundation this month. Instead, he pointed me toward Tocqueville's 19th-century masterpiece, "Democracy in America," and its emphasis on "clamor," on "people arguing about politics" as a civic virtue.

However unusual it makes him, Breyer added, when he hears "these huge arguments about the Patriot Act, I cheer. ... We have a process and it's called that clamor." Issues bubble up, "people shout - I would rather they were polite, but ... shouting is better than nothing."

I concur. Tear yourself away from the Dixie Chicks, Michael Moore and HBO's Bill Maher and spend an evening with chapter 14 of "Democracy in America." I'm not sure what the French aristocrat would make of this, but any of us can pull it out of the Internet. Maybe it will make you feel like shouting.

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