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LIBERTY IN TIMES OF CRISIS - page 28 / 32

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26

CHECKS AND BALANCES: THE LONG VIEW

Long before Sept. 11, an ACLU report on threats to the U.S. system of checks and balances was in the works. The Alien and Sedition Acts of 1798, criminal restrictions on speech during World War I, the internment of Japanese Americans after Pearl Harbor, and the Cold War spying and blacklists all represented seizures of power in times of crisis that later generations would regret. And anti- terrorism laws passed by Congress in 1996 and 2001, after the Oklahoma City bombing, further weakened the judiciary’s ability to curb excesses.

Indeed, its provisions have already added to the chaos and sloppiness of a capital punishment system so fraught with error that at least 100 innocent men and women have been sentenced to death since 1972. It has shattered lives and families of undocumented immigrants by speeding deportations and blocking asylum for those fleeing persecution, and thwarted attempts to improve prison conditions with especially dire consequences for women, children and the mentally ill.

RIGHT TO DISSENT: The ACLU defended antiwar activists like pediatrician Benjamin Spock, who was indicted after urging Americans to “resist illegitimate authority” in the Vietnam War era.

No one could have guessed how quickly and easily those excesses would be eclipsed by even more blatant denials of due process. But by the time the ACLU released its long-planned report on checks and balances, in October 2001, the attacks on Washington and New York had thrown the administra- tion and Congress into a panic. The USA PATRIOT Act was signed into law, further impairing the courts’ traditional roles. Under many of its provisions, judges exercise no review whatsoever, reflecting the current administra- tion’s distrust of the judiciary as an independent safeguard against abuse of its authority.

Congress moved precipitously after Oklahoma City to block access to the courts for immi- grants facing deportation, prison- ers and inmates on death row.

That legislation, though enacted to provide “swift punishment of terrorists,” could be used to limit the rights of less narrowly defined groups as well, the ACLU warned.

The independence of the federal courts has been under siege almost since their creation. At various times in America’s history,

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