February 4, 2005
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OP-ED COLUMNIST
Our Battered Constitution
By BOB HERBERT
he Constitution? Forget about it.
Only about half of America's high school students think newspapers should be allowed to publish freely, without government approval of their stories. And a third say the free speech guarantees of the First Amendment go "too far."
This has thrown a lot of noses out of joint. Hodding Carter III, president of the John S. and James L. Knight Foundation, which financed a two-year study of high school attitudes about First Amendment freedoms, said, "These results are not only disturbing - they are dangerous."
But maybe we shouldn't be so hard on the youngsters. After all, they've been set a terrible example by a presidential administration that has left no doubt about its contempt for a number of our supposedly most cherished constitutional guarantees.
In an important decision on Monday, a federal judge in Washington ruled that the Bush administration cannot be allowed to defy the Constitution and an order of the Supreme Court in its treatment of the hundreds of prisoners it is holding at Guantánamo Bay, Cuba. The judge, Joyce Hens Green, said the administration must permit the detainees it is holding as "enemy combatants" to challenge their detention in federal courts.
The administration has tried mightily to establish its right to treat anyone who it determines is an "enemy combatant" any way it chooses. It has argued that it can hold such detainees for a lifetime - without charging them, without giving them access to lawyers, without showing them the evidence against them and without allowing them to challenge their detention.
Administration officials are adamant on this matter, and yesterday they were granted a stay of Judge Green's decision, pending an appeal.
The Supreme Court ruled last June that the administration was acting illegally in depriving the detainees of their liberty without allowing them to challenge the cases against them. The administration responded bizarrely. Its lawyers argued, with "Alice in Wonderland" logic, that, yes, in accordance with the Supreme Court's ruling, the detainees can challenge their detention. But since (in the administration's view) they don't actually possess any rights to support the challenges, the courts must necessarily reject the challenges.
The administration is fighting for nothing less than the death of due process for anyone it rounds up, no matter how arbitrarily, in its enemy combatant sweeps. Such tyrannical powers should offend anyone who cares about such old-fashioned notions as the rule of law, checks and balances, and constitutional guarantees.
Under the procedures set up by the administration for dealing with the detainees, we have no way of distinguishing between a terrorist committed to mass murder and someone who is completely innocent.
In her decision, Judge Green wrote, "Although this nation unquestionably must take strong action under the leadership of the commander in chief to protect itself against enormous and unprecedented threats, that necessity cannot negate the existence of the most basic fundamental rights for which the people of this country have fought and died for well over 200 years."
The fundamental right in the case of the Guantánamo detainees is the right not to be deprived of liberty without due process of law. A government with the power to spirit people away and declare that's the end of the matter is exactly the kind of government the United States has always claimed to oppose, and has sometimes fought. For the United States itself to become that kind of government is spectacularly scary.
In seeking the stay of Judge Green's ruling, the administration showed yesterday that it is committed to being that kind of government.
Barbara Olshansky, a lawyer with the Center for Constitutional Rights, which has filed legal challenges on behalf of many detainees, said the administration believes it has "carte blanche" when it comes to fighting terror: "It's pretty alarming."
In one hearing that led up to Monday's decision, Judge Green attempted to see how broadly the government viewed its power to hold detainees. Administration lawyers told her, in response to a hypothetical question, that they believed the president would even have the right to lock up "a little old lady from Switzerland" for the duration of the war on terror if she had written checks to a charity that she believed helped orphans, but that actually was a front for Al Qaeda.
E-mail: bobherb@nytimes.com
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Free speech: Use it -- or you risk losing it
MANY KIDS ARE APATHETIC, THOUGH IT'S NOT THEIR FAULT
Mercury News Editorial
The First Amendment is a muscle that must be used, or it will become flabby. A survey of high school students by the John S. and James L. Knight Foundation reveals a frail Constitution: Kids are weak in knowledge of their rights.
• 73 percent said they didn't know how they felt about the First Amendment or took freedom of speech and the press for granted.
• More than a third (35 percent) thought that the First Amendment goes too far in protecting rights.
• One in six students indicated that people shouldn't be allowed to express unpopular opinions.
• Only half said newspapers should be allowed to publish freely without government approval of stories.
The apathy is alarming. Those who don't understand the First Amendment are certainly less inclined to exercise it, and they'll be less skeptical and more easily conned by government officials who want to twist and limit it.
Ignorance is not kids' fault. Unawareness starts at home. Parents' understanding of the First Amendment isn't much better. Even in the best of times, three out of 10 adults believe that the First Amendment goes too far. That belief jumped to half in the months after Sept. 11. Talk-show hosts like Rush Limbaugh make good money assailing the credibility of mainstream journalists and of anybody who disagrees with him.
In school, First Amendment-rich electives are getting left behind in the race to raise test scores in math and English. California requires three courses in social studies, including a semester course in American government and civics. But often, the focus is on specific information found on state history and social studies tests, not on broad concepts. Schools need to convene more discussions of controversial issues and to promote civic involvement outside of class.
The Knight survey of 100,000 students in 544 high schools found a clear correlation between knowledge of the First Amendment and participation in a school radio station or newspaper. One-quarter of schools no longer publish papers, and many of those that have dropped them are in poor communities.
James Lick High in East San Jose is representative. The media magnet for East Side Union, the school has dropped many of its media programs to make way for remediation courses in math and English.
The exhilaration that Iraqis felt in voting for the first time should remind Americans of rights they often don't appreciate. An atrophying First Amendment is harmful to the nation's civic health.
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