Civil liberties set back in U.S. courts

by Joe Auciello / August 2007 issue of Socialist Action Newspaper

The Bush administration is losing in the neighborhoods and road sides of Iraq, is losing in the public opinion polls at home, but is winning handily in the U.S. courts.

Recent decisions by the Supreme Court and a federal court of appeals have not only supported key elements of the Bush agenda; these decisions have in effect overturned previous progressive rulings, thereby setting back the struggle for human rights and civil liberties.

In July, the Sixth U.S. Circuit Court of Appeals threw out a lawsuit brought by the American Civil Liberties Union and others that challenged President Bush’s self-proclaimed right to monitor the international communication of U.S. citizens.

Wiretaps on overseas phone calls and e-mail require a judicial warrant. Nonetheless, the White House claimed executive privilege and special presidential wartime powers to ignore the Foreign Intelligence Surveillance Act (FISA).

Of course, this 1978 law was originally passed after congressional investigations of Richard ("When the president does it, it is not illegal") Nixon and the Church Committee inquiries into domestic spying operations had revealed a pattern of law breaking by law-enforcement agencies. FISA was intended to put a stop to this type of misconduct.

Despite this law, after Sept. 11, 2001, President Bush, acting on his sole authority, secretly ordered the National Security Agency to place wiretaps without the permission of any court. Most of the details of the program have not been disclosed, despite requests from the Senate Judiciary Committee.

The operation was not made public until December 2005, when The New York Times broke the story. In August 2006, District Court Judge Anna Diggs Taylor ruled that the program was unconstitutional and illegal. Naturally, the federal government appealed, and the warrantless wiretaps were allowed to continue pending the decision of the appeals court.

By a 2-to-1 vote, the federal appeals court stated that the plaintiffs had no basis to sue because they could not sufficiently show they had been monitored by the government. Thus, the court dismissed the case on a legal technicality. This decision maintained the FISA law, and at the same time allowed the Bush administration to continue its surveillance of U.S. citizens in defiance of the FISA law.

The legal director of the ACLU, Steven Shapiro, aptly noted, "This is a Catch-22 ... what in effect they’re saying is that we can’t tell you whether you’ve been wiretapped because that’s a secret. And unless you know you’ve been wiretapped, you can’t challenge that program."

Reference to "state secrets," then, gives the federal government license to resume the kind of spying and snooping of citizens that, some 30 years ago, even Congress believed was too extreme. But, thanks to the courts, yesterday’s abusive practice has become today’s normal procedure.

At the same time, the Supreme Court decided the best way to honor the 1954 Brown v. Board of Education decision and promote integration in public schools would be to dismantle desegregation plans and yield to the arguments of white parents.

White students in Seattle and Louisville, Kentucky, had claimed discrimination because they were assigned to a school outside of their neighborhood. By a 5-to-4 margin, the Supreme Court agreed.

As a result of the Court’s ruling, public schools cannot attempt to achieve diversity in their districts by assigning students on the basis of their race. If, for instance, a town has a high school with mostly Black students and another high school with mostly white students, the school board may not move students from one school to the other in order to achieve racial parity.

Writing for the Court’s majority, Chief Justice John G. Roberts said the Louisville and Seattle plans were "directed only to racial balance, pure and simple." This goal, according to the Court’s majority, now violates the Fourteenth Amendment, which mandates equal treatment for all citizens. Noting a student’s race in a school assignment plan, according to the conservative argument, is unconstitutional.

Justice Roberts concluded, "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race." This notion, according to the Justice, is entirely "faithful to the heritage of Brown."

In other words, race problems will be improved if the problems of race are ignored. Actually, the Court’s ruling contradicts the intent of the Brown decision, which struck a blow against segregation.

Hundreds of cities across America assign students to schools on the basis of race in order to achieve racial balance. Absent such plans, schools would mirror the segregated housing patterns that predominate in most towns and cities.

According to the Civil Rights Project at UCLA, "the isolation of Latino and black students from white students in public schools has substantially increased since the 1980s." More specifically, the National Center for Education Statistics points out that most white students attend schools that are 80 percent white; 70 percent of Black students attend schools where most of their classmates are racial minorities.

In 2003, ruling in favor of affirmative action in a university graduate school, the Court majority foresaw another 25 years in which decisions on schooling would have to be made on the basis of race. The current Court, in effect, reduced that time frame for civil rights down to a mere four years. As segregation increases, court remedies for desegregation decline. One fuels the other.

In his ruling, Chief Justice Roberts considered race and law in abstract, not practical, terms. If the law ignored race, reasoned the Justice, wouldn’t society ignore race, too, thereby creating a color-blind nation where race would be of no consequence? Would not the result then be racial equality?

But this kind of equality—in name only—is a legal fiction. The Court’s decision to ignore racial discrimination in theory means ignoring and restoring racial discrimination in reality.

The Court majority claimed that "our Constitution is color-blind." Racial division may not "be overcome by legislation," and the law cannot mandate "an enforced commingling of the two races. … If the two races are to meet upon terms of social equality, it must be the result of mutual affinities, a mutual appreciation of each other’s merits."

Thus spoke the Supreme Court in 1896 in the infamous Plessy v. Ferguson decision, which blessed racism with the protection of the law. The current Court’s conclusions are drawn, not from Brown, but from Plessy.

History offers its lessons. Advances in civil rights never resulted from the wisdom of judges or the kindness of politicians. Judicial activism of the court can be countered by social activism of the people. When the mass of people organize and struggle collectively for justice, then the wheels of history will roll forward.