Celebrating the Fourth by Remembering the Fifth

Other than consuming copious amounts of beer and barbecue food, what can Americans do on the Fourth of July to celebrate their freedom? Erwin Knoll, the late editor of The Progressive, used to pin a copy of the Bill of Rights to a tree at the parties he hosted. I'm not hosting any parties, and I'll spare you a virtual posting of the entire Bill of Rights, save for the Fifth Amendment, which merits special attention because Democrats and Republicans seem to have forgotten what it says. Here, then, is the forgotten fifth:

No person shall be held to answer for any capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Many of us thought due process was going to be recognized as part of the Constitution again when Barack Obama was elected President. Unfortunately, as Charlie Savage of The New York Times reminded us this week, it's looking increasingly like Obama is leaning toward detaining terrorism suspects without trial even after Guantanomo is shut down (if it ever is), among other policies eerily reminiscent of his predecessor's. The most chilling quote in Savage's article came from Jack Balkin, a professor at Yale Law School, who suggested Obama is putting a bipartisan stamp on detention and surveillance policies that liberals and Democrats overwhelmingly opposed when Bush was in office. "What we are watching is a liberal, centrist, Democratic version of the construction of these same governing practices," said Balkin of Obama's approach.

That's not "Change We Can Believe In." It is alarming and, as all progressives should remind themselves on Independence Day, profoundly un-American.

Comments (37)

1. well...most if not all detainees were detained within the context of

   "in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger"

   perhaps mr. O saw some stuff once briefed that gave him pause?

   as much as i detest the policies of the previous junta, just because a policy was in effect under them does not automatically make it as foolish, wrong, or malevolent as they...

   Posted by ibbleblibble at 07/03/2009 @ 11:50am

2. posted by Eyal Press on 07/03/2009 @ 11:35am

   Perhaps your reading retention is not up to par.

   May I suggest YOU reread the Fifth.

   And you will forgive me if I trust Obama's judgement over....yours.

   Posted by Benchrest at 07/03/2009 @ 1:35pm

3. WHERE WAS THE LEFT?

   (Thanks for the post, Eyal.)

   There are so many treacherous issues facing us at this point it's become exceedingly difficult to keep it all straight in our minds, let alone begin to triage.

   The Bush instituted detention and surveillance policies must rank at or near the top.

   The danger that is rising at an alarming pace as we speak includes the lack of an adroit handling of the financial crisis by Team Obama, --"TARP II" is a farce, and the stimulus has been flaccid-- and the lack of cojones exhibited in Obama's limp wristed approach to the Constitutional destruction wreaked by Cheney/Bush.

   When the facts on the ground are combined with a dangerously naïve adoration of a President who has us traveling in essentially the same direction we were headed before he stepped into office, well, the results are now virtually guaranteed.

   Total and complete disaster.

   Paul Krugman, to his credit, has used the word "despair" in a recent NY Times economics column. It's a word that we'll be hearing more of, I'm quite sure. Here is perhaps the most haunting future question that will likely echo emptily, "Where was the left?".

   Posted by b_kool_66 at 07/03/2009 @ 2:57pm

4. If readers here can't quite bring themselves to the same conclusion that I've reached above, I recommend James Bamford's recent barn burner, "The Shadow Factory".

   If a critical mass of American citizenry understood how widespread and deeply entrenched the surveillance society has become since 9-11, I would perhaps begin to consider a wager that we might actually revolt.

   If a time for such a revolt was justified, I can hardly imagine a better one than this.

   Posted by b_kool_66 at 07/03/2009 @ 3:12pm

5. The bill of rights is for U.S.A. CITIZENS! It is NOT for enemy alien combatants which at least to some degree Obama and the U.S. Congress and Supreme Court understand. Why is it so hard for marxist leftist?

   Posted by BigPasture at 07/03/2009 @ 4:34pm

6. Not that you'll listen or take a moment to cogitate meaningfully, "Out to Pasture", but the Bill of Rights is being abrogated as we speak in profoundly deplorable ways.

   U.S. citizens are having their e-mails, faxes and phone calls swept up in a maelstrom of illegal wire taps of key fiber optic communications nodes on both U.S. coasts. The volume of data being vacuumed up is beyond our ability to put into useful perspective.

   Critical players in the game include the Israeli companies, Verint and Narus, who possess the ability to access the data themselves, and who in turn contract with a host of foreign countries. The possibilities for the misuse and abuse of our most personal info are staggering.

   But that's okay, just keep munching away in bucolic bliss.

   Posted by b_kool_66 at 07/03/2009 @ 5:17pm

7. Posted by b_kool_66 at 07/03/2009 @ 5:17pm | ignore this person | warn this person

   Cool down the tinfoil! The thread is about the "bill of rights" and my response it about it being misleadingly and legally inappropriately applied to non-citizens and non-military alien combatants.

   Posted by BigPasture at 07/03/2009 @ 5:25pm

8. Read Bamford's book, tool.

   Anyone who's read my posts here over the years knows that I don't go off screaming with my hair on fire about anything. I'm a scientist by training.

   If perhaps 1 percent of the "educated" Western population understood that the Soviet Union was likely to collapse just before it did, I'd wager a guess that the percentage of those who believe that the U.S. is in great jeopardy of collapse is probably somewhat closer to the 5 to 10 percent range.

   The signals are strong and undeniable. Which also makes the fact that we are under profoundly intrusive surveillance all the more disturbing.

   As the late, great Carl Sagan was fond of saying, "We humans need to find a way to balance wonder and skepticism". It's equally true that we should avoid the extremes of credulity and cynicism.

   If you could see yourself in a psychologically revealing mirror, Comanch, it would be crystal clear that you haven't even begun to approach those ideals. Dog help you.

   Posted by b_kool_66 at 07/03/2009 @ 5:44pm

9. Posted by b_kool_66 at 07/03/2009 @ 5:44pm i agree with some of the stuff you have said but your kind of rambling on instead of giving a point to point response to his comments

   Posted by BigPasture at 07/03/2009 @ 4:34pm your post is wrong on so many levels. first of all non citizens do have rights in the constitution. if you read it (i know im asking alot from you based on your post) you will notice certain rights are granted to citizens only and other rights are granted to persons. so non-citizens do have rights. (There are a few rights reserved for citizens. Among them are the right to vote, the right to hold most federal jobs, and the right to run for political office.) oh and many people detained at guantanamo bay ARE citizens.

   Posted by nathantankus at 07/04/2009 @ 04:09am

10. Posted by nathantankus at 07/04/2009 @ 04:09am

    "...except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; "

    I guess you can't read either.

    Try again.

    Posted by Benchrest at 07/04/2009 @ 10:17am

11. The bill of rights is for U.S.A. CITIZENS! It is NOT for enemy alien combatants which at least to some degree Obama and the U.S. Congress and Supreme Court understand. Why is it so hard for marxist leftist?

    Posted by BigPasture at 07/03/2009 @ 4:34pm this is what i was responding to. i wasnt commenting on the article specifically. next time if your going to call someone out benchrest i suggest knowing what THEIR talking about.

    Posted by nathantankus at 07/04/2009 @ 10:50am

12. "I'd wager a guess that the percentage of those who believe that the U.S. is in great jeopardy of collapse is probably somewhat closer to the 5 to 10 percent range."----Posted by b_kool_66 at 07/03/2009 @ 5:44pm

    KOOL, I really don't see why your and RIO/Big Posture are fighting, since you BOTH are in the "We're doomed!!!!" camp????

    Posted by Mask at 07/04/2009 @ 11:43am

13. Posted by nathantankus at 07/04/2009 @ 10:50am

    apologies

    Posted by Benchrest at 07/04/2009 @ 12:01pm

14. Posted by Benchrest at 07/04/2009 @ 12:01pm no worries.

    Posted by nathantankus at 07/04/2009 @ 12:17pm

15. "i agree with some of the stuff you have said but your kind of rambling on instead of giving a point to point response to his comments"

    ~nathan tankus at 4:09 am

    You're probably brand new here, Nathan. Welcome to the jungle.

    We get a pretty sizable number of right wing nutjob posters showing up on a regular basis at The Nation --it's an interesting and somewhat bizarre phenomenon. I suspect these guys --very few women here, sadly-- fantasize that they are contributing powerful and useful arguments to perhaps even sway a few of us misguided leftists.

    Of course, the reality is much more complex than a simple right versus left, one dimensional continuum --but don't tell that to Mask(ot), you'll end up wasting half your day in a circular mosh pit.

    I generally try to abstain from the all too common brouhahas between competing penises, but I find from time to time, that it can be fruitful to use some of the sad sack posters here as sort of useful tools --thus the post sequence above utilizing "Big Pasture".

    It's not my objective to get into a point-by-point yawn fest, but to use these gasbags as a slingshot to extend some further notions of a given thought thread. You might think of these maneuvers as a sort of gravitational assist to deeper reaches of the cosmos.

    At least that's my hope.

    Best wishes to you, Nathan, and perhaps we'll converse more intriguingly further on down the road.

    :D

    Posted by b_kool_66 at 07/04/2009 @ 1:14pm

16. Posted by b_kool_66 at 07/04/2009 @ 1:14pm

    fair enough. my school is a disscussion based school where we basically argue about things to learn about them. that being the case whenver i hear bullshit my first instinct is to patently debunk point by point. ill try to keep in mind that they dont always need to be argued with.

    Posted by nathantankus at 07/04/2009 @ 1:20pm

17. Assuming that the posters here are by and large American citizens, I think it is in everyone's best interest ignore politicians, theologians and lobbyists and rely on educators, think-tankers and scientists for level headed and patriotic input.

    Posted by gunslinger1 at 07/04/2009 @ 1:45pm

18. Heads Up.

    If anyone is interested, here is the Democracy Now interview with James Bamford --the pre-eminent expert on the NSA-- and an excerpt from Wired Magazine's "Danger Room" interview with Bamford.

    Democracy Now:

    tinyurl.com/4heb7x

    Wired Magazine:

    www.wired.com/dangerroom/2008/10/bamford-intervi/

    Danger Room interview excerpt:

    DR: But, before, there was such a strong culture at NSA of respecting Americans' privacy. You had United States Signals Intelligence Directive 18 (USSID 18), which strictly prohibits listening in on U.S. persons, without a warrant. What happened?

    JB: That's one of the interesting things, one of the things I wanted to get across in the book -- this whole before-and-after issue. [Before,] as soon as they got an American, under USSID 18, they had to turn it off. And then after 9/11, all those USSID 18 rules and regulations they had before 9/11 were thrown out the window. They'd make up these flimsy excuses, like, "Well, suppose an American loses her cell phone and then what happens if a terrorist picks it up." They're bending 180 degrees backwards.

    Posted by b_kool_66 at 07/04/2009 @ 3:30pm

19. DR: Is that why you joined the ACLU's lawsuit against the agency?

    JB: I was outraged the moment I heard what was going on. Of all the journalists out there, I'm the one person who's written more than anyone about NSA. I knew this, this is a big deal. I had written about the horror days of the '50s, '60s, up until the mid-'70s, when they were engaged in this warrantless eavesdropping. The impression I got [previously] was that they were always trying to push back, hard, from the edge. And I hadn't changed that impression, post-9/11…. For NSA to all of a sudden revert back to the bad old days of the '60s and '70s -- I thought that was illegal, unethical. I was very angry. I thought NSA shouldn't be doing this.

    So then, a couple of weeks later, the ACLU calls me up, and asks me to join a suit. I didn't immediately say, "Yes, hell yeah, I'll do it." I said I'd think about it. Because it was a big thing for me to, all of a sudden, step out of my role as a journalist and a writer and to become a plaintiff against the agency I had written two books about. If I had wanted to play it safe, I would've said, "we'll, ya know, I gotta be a journalist here," thinking I may lose all these sources, starting with Hayden and working my way down. They like me at NSA. [But] I thought they were doing something bad, and I had to do something about it.

    There were a lot of people there that got very angry at me for suing the agency they worked for. People that were all in favor of what NSA was doing -- which was a lot of people. Ya know, "patriotic, we should be doing this," all that stuff. And I was saying, "Well, I don't mind if you spy on terrorists. But we live in a democracy. There's got to be a buffer here between the people who are targeting the terrorists and the American public."

    Posted by b_kool_66 at 07/04/2009 @ 3:30pm

20. Happy 4th everyone.

    Enjoy the fireworks.

    ;-)

    Posted by b_kool_66 at 07/04/2009 @ 3:31pm

21. Assuming that the posters here are by and large American citizens, I think it is in everyone's best interest ignore politicians, theologians and lobbyists and rely on educators, think-tankers and scientists for level headed and patriotic input.

    Posted by gunslinger1 at 07/04/2009 @ 1:45pm

    Well, who appointed you the arbiter of who can participate in debate in this country?

    Posted by antisocialist at 07/04/2009 @ 9:01pm

22. The bill of rights is for U.S.A. CITIZENS! It is NOT for enemy alien combatants which at least to some degree Obama and the U.S. Congress and Supreme Court understand. Why is it so hard for marxist leftist?

    Posted by BigPasture at 07/03/2009 @ 4:34pm

    The Roberts-Thomas-Scalia-Alito-(Sometimes)Kennedy Supreme Court, THAT Supreme Court?

    Posted by schnellerheinz at 07/04/2009 @ 9:08pm

23. Assuming that the posters here are by and large American citizens, I think it is in everyone's best interest ignore politicians, theologians and lobbyists and rely on educators, think-tankers and scientists for level headed and patriotic input.

    Posted by gunslinger1 at 07/04/2009 @ 1:45pm

    Well, who appointed you the arbiter of who can participate in debate in this country?

    Posted by antisocialist at 07/04/2009 @ 9:01pm | ignore this person | warn this person

    gunslinger--just wanted to note for ya that some of our neocon friends here, in particular, get upset with too much eggheadedness around these parts.

    Their tastes accordingly tend to run more into Rush/Coulter/Hannity territory, stuff like that.

    :)

    Posted by schnellerheinz at 07/04/2009 @ 9:14pm

24. gunslinger--just wanted to note for ya that some of our neocon friends here, in particular, get upset with too much eggheadedness around these parts.

    Their tastes accordingly tend to run more into Rush/Coulter/Hannity territory, stuff like that.

    :)

    Posted by schnellerheinz at 07/04/2009 @ 9:14pm |

    Ah, stereotypes. You know what they say about assume?

    Posted by antisocialist at 07/04/2009 @ 10:05pm

25. The bill of rights is for U.S.A. CITIZENS! It is NOT for enemy alien combatants which at least to some degree Obama and the U.S. Congress and Supreme Court understand. Why is it so hard for marxist leftist?

    Posted by BigPasture at 07/03/2009 @ 4:34pm | ignore this person | warn this person

    first of all non citizens do have rights in the constitution. if you read it (i know im asking alot from you based on your post) you will notice certain rights are granted to citizens only and other rights are granted to persons. so non-citizens do have rights.

    Posted by nathantankus at 07/04/2009 @ 04:09am | ignore this person | warn this person

    So.... show us all where in the "BILL OF RIGHTS" which I specifically posted about and this thread is specifically about, are the rights of non-citizens referred to??

    Perhaps you did not bother to read either one, but merely felt the need to pontificate??

    Posted by BigPasture at 07/04/2009 @ 10:45pm

26. Posted by nathantankus at 07/04/2009 @ 04:09am | ignore this person | warn this person

    So have you worked for the ACLU long?

    Posted by BigPasture at 07/04/2009 @ 10:55pm

27. Posted by b_kool_66 at 07/03/2009 @ 5:44pm

    You might want to check out Archie Brown's "The Rise and Fall of Communism". Salon article is here:

    http://www.salon.com/books/review/2009/07/03/communism/

    Posted by nathantankus at 07/04/2009 @ 04:09am

    Your argument would be stronger if you could identify rights granted to non-citizens. I'd also like to see where "many" U.S. citizens are kept in Cuba. That would be news. If you are going to argue point by point, your facts need to be solid.

    I would also suggest saving that kind of effort for a more appropriate forum (like school) and sticking to infrequent or short posts for this one. This is advice I should take more often myself.

    Posted by srjenkins at 07/05/2009 @ 01:07am

28. Posted by nathantankus at 07/04/2009 @ 04:09am | ignore this person | warn this person

    So have you worked for the ACLU long?

    i didnt realize i had to work for the ACLU to have a minimal understanding of the constitution. my bad. ill go back to ignorant bliss in a second.

    Posted by nathantankus at 07/05/2009 @ 04:49am

29. As long as they're foreigners, the US can do anything to them ... imprison, torture (enhanced interrogation), death (enhanced sleep) ... if the US merely suspects that the foreigner in question is even thinking of threatening the US, anywhere, anytime. Due process not called for. Clearly this is a US right ... but don't let any other country dare to do the same, except at the behest of the US.

    Posted by sloper at 07/05/2009 @ 06:54am

30. Posted by BigPasture at 07/03/2009 @ 4:34pm

    If you read the post, it quotes directly the amendment, which says "No person shall..." "Nor shall any person..." So, the detainees are not "persons," then? Have it your way? No, thanks.

    By the way, Mr. Press, "host" is not a verb.

    Posted by anticapitalist at 07/05/2009 @ 07:50am

31. As long as they're foreigners, the US can do anything to them ... imprison, torture (enhanced interrogation), death (enhanced sleep) Posted by sloper at 07/05/2009 @ 06:54am

    LOL ... Enhanced Sleep... excellent... Do you mind if i use that one..??

    I laughed so hard I spit all over my "No spin zone" T-shirt...

    Posted by Vvf1969 at 07/06/2009 @ 12:07am

32. I just looked through the Bill of Rights, and I did not find one time the phrase "USA citizens." It's the same as when we read it in third grade...which leads me to wonder what grade you last completed, Big Pasture.

    Posted by onthehelm at 07/06/2009 @ 12:11am

33. Posted by onthehelm at 07/06/2009 @ 12:11am | ignore this person | warn this person

    Its right next to the wording giving protection to illegal aliens and immigrants in the "bill of rights" which is the topic of discussion! Show me where that is again, I seem to have lost my place reading it???

    Posted by BigPasture at 07/06/2009 @ 01:31am

34. Posted by onthehelm at 07/06/2009 @ 12:11am | ignore this person | warn this person

    Its right next to the wording giving protection to illegal aliens and immigrants in the "bill of rights" which is the topic of discussion! Show me where that is again, I seem to have lost my place reading it???

    Posted by BigPasture at 07/06/2009 @ 01:31am | ignore this person |

    because apparently the word persons isnt enough for you, you need the constitution to make an exact reference to in issue that is prevelant 222 years after it was written.

    Posted by nathantankus at 07/06/2009 @ 02:24am

35. RIO- "Clearly, if you're not a 'citizen', you're not a person!!!!"

    heheh

    Posted by Mask at 07/06/2009 @ 07:40am

36. being a san franciscan, i thought the author meant july 5th, 1934, when the longshoreman strike left two workers dead......

    Posted by darladoon at 07/06/2009 @ 12:53pm

37. think-tankers and scientists for level headed and patriotic input.

    Posted by gunslinger1 at 07/04/2009 @ 1:45pm |

    I would have to disagree on listening to think-tankers for ideas. The American Enterprise Institute is one of such think tanks. Those A holes pretty much ran the Iraq war and no doubt reaped the profits off their pre-planned war as did the members of the Carslyle Group ie, Bush Senior, Kissinger, Baker, and on and on

    Posted by Wolfgang1 at 07/07/2009 @ 08:50am