By Susan N. Herman, president of the American Civil Liberties Union and Centennial Professor of Law at Brooklyn Law School
The 10th anniversary of 9/11 may be over, but let’s not move on too fast. As students and fans of the Constitution, many of us have spent time deploring how the “War on Terror” has jeopardized our rights. Now it’s time to deepen that conversation and get serious about reversing the damage.
The news is not all bleak. The past decade offers some reassuring evidence of the power and resilience of our Constitution. My new book, Taking Liberties: The War on Terror and the Erosion of American Democracy, discusses a number of ways in which the Constitution’s multiple interlocking layers of self-protection have worked to limit the extent of the damage done.
For example, the right to trial by jury enabled an Idaho jury to honor the First Amendment by rejecting the federal government’s attempt to prosecute graduate student Sami al-Hussayen for posting links on a website.
Article III’s decision to insulate federal judges empowered some principled judges to test politically driven strategies against the Constitution. Judge Victor Marrero in the Southern District of New York, for instance, found that the absolute and permanent gag orders automatically attaching to National Security Letters violated the First Amendment, because they prevented recipients of these government demands from ever telling anyone – including Congress, a lawyer, or a court – anything about their own experiences.
Freedom of the press enabled reporters to tell the public things the government was trying to conceal – as in James Risen and Eric Lichtblau’s New York Times story revealing the long-secret and illegal NSA surveillance program, and Barton Gellman’s Washington Post exposé on the use of National Security Letters.
insurance through the federal Medicaid program. The case, Douglas v. Independent Living Center, addresses whether people with limited income and resources can sue states that enact laws which conflict with federal Medicaid requirements, the same way that businesses sue states to challenge state consumer protection laws. The Supreme Court has declined to hear the merits of the Douglas case, not taking the question of whether the slashing of Medicaid reimbursement rates by California violated federal law. The only issue before the Supreme Court is whether the Supremacy Clause of the Constitution – commonly invoked by businesses challenging state environmental or consumer protection laws – applies to the claims of poor people, including low income older adults, who were unable to obtain medication from pharmacies due to the reimbursement rates being below cost.
se to cancel salary payments for some of Obama’s recess appointees, and are claiming that they will prevent any recess through 2012, Williams explains.
by the Division since its inception ensured equal voting rights, defeated employment discrimination, and integrated public schools. That consensus “proved inadequate during the Presidency of George W. Bush, as enforcement activity diminished sharply and partisan considerations affected law enforcement and personnel decision,” Yeomans writes.