What fear is doing to our freedoms

From: "APFN"

What fear is doing to our freedoms

What fear is doing to our freedoms
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Americans, willingly - and foolishly - are sacrificing their rights in
exchange for safety from terrorism, today's writer says. Here is the text
of his speech at the New Mexico Foundation for Open Government's annual
William S. Dixon First Amendment Awards.

By Gene E. Franchini, is a retired chief justice of the New Mexico Supreme
Court. He gave his speech during the awards dinner Sept. 12 in Albuquerque.
http://www.abqtrib.com/archives/opinions03/092603_opinions_patriot.shtml

For the next few minutes, I would like to speak with you about a subject
which I'm sure every New Mexico Foundation for Open Government member
cherishes . . . "the public's right to know." I'd like to discuss with you
what that phrase means to me.

Secrecy in a democratic government is the antithesis to all that a
representative democracy stands for. It keeps the people in the dark and
destroys any opportunity they may have to speak out for or against any
governmental action.

When access to governmental activity is denied or restricted in any way,
and access to the opportunity to observe that activity is stopped,
democracy dies. It's just that simple. For, if this is truly a country of,
by and for the people, then the people must be informed, if they are
expected to act. The people have the right to know.

But what is it that we, the people, have the right to know?

Certainly, we have the right and need to know the truth - what's really
going on. We have the right and need to know the true facts about
governmental activity. We also have the right to demand that.

But, unfortunately, we usually don't. The dark space between ignorance and
knowledge more often than not is filled in this day of instant
communication with stories, spins and opinions of those with no knowledge
or expertise and out-and-out misdirections and fabrications.

Do we have a right to know misdirections and fabrications? I believe that
we actually have a right not to. This organization's main interest should
be a continuing battle to have access to all areas of governmental action
and to expose, when they recognize it, the stories, spins, misdirections
and opinions without basis for what they are and what they create - the
illusion that the people really know what's going on, when they really don't.

In this time of instant communication, it can be most difficult to separate
the wheat from the sheaf. More often than not, I'm afraid, the separation
is made for us by others, and the sheaf is what is usually distributed.

The foundation's mission becomes more difficult, because, if the sheaf is
distributed and emphasized, rather than the truth, it's usually too late to
do anything about it, once we recognize it for what it is. What's worse, it
is a violation of the Foundation for Open Government's most basic
principle. The public's right to know becomes the public's right to know
nothing.

Another more destructive form of deception today is the selling of fear.
Fear is the most debilitating of all human emotions. A fearful person will
do anything, say anything, accept anything, reject anything, if it makes
him feel more secure for his own, his family's or his country's security
and safety, whether it actually accomplishes it or not.

It works like a charm. A fearful people are the easiest to govern. Their
freedom and liberty can be taken away, and they can be convinced to believe
that it was done for their own good - to give them security. They can be
convinced to give up their liberty - voluntarily.

Recently, the passage of the USA Patriot Act and the Homeland Security Act
have resulted in the most direct attacks on the Bill of Rights that I have
seen in my lifetime. These acts were passed without any meaningful
opposition and still have considerable public support.

The USA Patriots Act is an acronym for "Uniting and Strengthening America
by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism."

The way that government is going to be provided with these "appropriate
tools" is to "temporarily" suspend or eliminate as much of our Constitution
and its Bill of Rights as it can, without court oversight or intervention,
so that we will not be at a disadvantage in the war against terrorism.
That's the idea.

Think about that for a minute, and then ask yourself: Why in the world
would we voluntarily do to ourselves that which our enemies over the last
200-plus years have not been able to do to us by force? Why would we be so
willing to give up our God-given rights that have been verbalized in our
Constitution, when we have fought so hard to preserve them?

It almost boggles the mind, when one considers what fear for one's safety
and security can accomplish. These bipartisan, virtually unopposed,
legislative, governmental actions are saying to us, "If you temporarily
give up some of your liberty and freedom now, you will be made more secure
in the future."

That, my friends, is a terrible lie. To paraphrase Benjamin Franklin, "One
who trades his freedoms for security, deserves neither." I might add that
person will finally lose both.

The people have a right to know what their government intends to do about
the war on terrorism, and that includes all of its branches - including the
judicial branch.

In a time of war, actual or threatened, our courts have, in my opinion,
repeatedly abdicated their function of equally interpreting and applying
the Constitution, bowing instead to "national security."

The most horrible example was when the U.S. Supreme Court upheld the
internment of Japanese Americans during the Second World War, because the
government claimed they were a security threat. It took Congress some 50
years to attempt to rectify that horrible opinion.

Did we learn anything? I'm afraid not. Today, with this unending war on
terrorism, our government has taken steps again to radically infringe upon
the right to counsel, reasonable search and seizure, the right to a speedy
and fair trial, and other fundamental liberties, for fear of losing our
security.

We can hope that, eventually, the U.S. Supreme Court will subject these
infringements to real constitutional scrutiny. Unfortunately, the courts
have historically yielded to wartime fears and claims that our security
interests would be jeopardized. Those prior wars ended before long and,
when they did, the country regretted the fact that it had abandoned the
Constitution, even temporarily.

The war on terrorism is different. It's a war on an old idea - one that has
been used for hundreds, if not thousands, of years. It is a horribly
destructive idea, but history has shown that you can't kill an idea,
however horrible, by killing those who have it. You kill or replace an idea
only by coming up with a better one. So far, we haven't really tried to
come up with a better one.

No one can even guess how long this war will last. In the meantime,
Americans, as well as aliens, have been harshly affected by governmental
measures after 9-11.

The attorney general of the United States had more than 1,000 aliens
detained, keeping their names and locations secret. There are over 600 left
at Guantanamo in Cuba. He ordered many deportation hearings in secret. He
required visitors from 25 countries, mostly Muslims, to register with the
government; and, if they didn't within 40 days, they were subject to
arrest, detention and deportation - no public trials, no lawyers - all in
secret, in the name of preserving security.

For example, one American citizen, Yasser Hamdi, was found under
unexplained circumstances on a battlefield in Afghanistan. He was
classified as an "enemy combatant," a new term which the government created
to give it the power to seize and hold American citizens indefinitely,
without counsel or trial, and without any effective review by the courts.
He was totally isolated and not allowed to see a lawyer. He was not charged
with any crime.

However difficult, lawyers came forward and were eventually allowed to
defend Hamdi. They immediately challenged his detention on constitutional
grounds - specifically, that this American was denied his right to counsel,
his right to know the charges against him, the right to face his accusers,
and his right to a fair and speedy trial.

The federal 4th Circuit Court of Appeals sidestepped the Constitution and
ignored Hamdi's constitutional rights as an American. Its holding: "The
defendant, an American citizen, classified as an `enemy combatant,' does
not have a constitutional right to counsel or trial, because `Mr. Hamdi was
not being prosecuted.'"

The government, therefore, can impose solitary confinement indefinitely, by
simply avoiding charging the defendant and giving such a defendant a lawyer
or a trial. If this isn't a violation of the Sixth Amendment, Hamdi at
least has certainly been deprived of liberty without due process of law.

James Madison, the principal author of the Bill of Rights, must be spinning
in his grave. Most Americans would be shocked, I think, if they realized
that they could be classified as an "enemy combatant," taken off the
street, imprisoned indefinitely and not be given the opportunity to call a
lawyer. But you can, my friends. At least one federal appellate court has
established that precedent.

Since 1990, (the Foundation for Open Government) has had a single mission:
to help the general public, students, educators, public officials, media
and legal professionals understand, obtain and exercise First Amendment
rights, as well as their rights under the New Mexico Open Meetings Act and
Federal Freedom of Information Act.

The First Amendment is most important, or it would not have been the first.
But please don't forget the other nine, which, together with the first,
compose the Bill of Rights, the foundation of this nation's greatness and
the real source of our security.

If the present situation lasts for a generation, as well it may, together
with its formidable and direct attempt to restrict or eliminate the Bill of
Rights in the name of security, then the next generation may not remember
what their rights were.

There won't be anyone around to remember them or remind the next generation
what they were. They may say that they eliminated or restricted them for
your own good, and, besides, your forefathers and mothers voluntarily gave
a lot of them up a generation ago.

So what is the Foundation for Open Government's mission? I think its prime
purpose is to keep the public informed, to keep the government open and to
preserve for the public their right to know. Its mission is to remind the
people what has made this nation the greatest on Earth, especially why they
should care, as well as why and how they can continue to preserve the
Constitution and its magnificent Bill of Rights.

Those first 10 amendments to the U.S. Constitution are the real foundation
for our freedom and liberty, our foundation for real security. It is the
fundamental law which has made us the land of the free and the home of the
brave. We have been that for over 200 years. Let's keep it that way.

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"We are fast approaching the stage of the ultimate inversion: the stage where
the
government is free to do anything it pleases, while the citizens may act only
by
permission; which is the stage of the darkest periods of human history, the
stage
of rule by brute force." [Ayn Rand, The Nature of Government]

For Liberty in Our Lifetime,
R.J. Tavel, J.D., Founder

Liberty's Educational Advocacy Forum
http://freedomlaw.com
"If a man is offered a fact which goes against his instincts, he will
scrutinize it closely, and unless the evidence is overwhelming, he will refuse
to believe it. If, on the other hand, he is offered something which affords a
reason for acting in accordance to his instincts, he will accept it even on the
slightest evidence." -- Bertrand Russell, in "Roads to Freedom"
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