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For five years, Congress has allowed the Bush administration to shred the Constitution. The president nearly succeeded in destroying our nation’s rule of law by abrogating the separation of powers that ensures no single branch can alone enact, enforce, and interpret law. Voters expressed their displeasure on Nov. 7 at this unlawful consolidation of power by removing from Congress those who helped facilitate it. The voters’ message should provide an impetus for those on both sides of the aisle who want to stitch our Constitution back together. There’s already evidence that government is on the mend, even before the 110th Congress reports for duty. Calls from Sen. Patrick Leahy (D-Vt.) for investigative hearings into the government’s warrantless spying on Americans show the renewed resolve of Congress to fulfill its oversight role. We’re optimistic that as chairman of the Senate Judiciary Committee, Leahy will shed light into many dark corners. Also encouraging is the news of legislative proposals that indicate both sides of Congress want to restore basic freedoms. WHO ARE YOU? This month, Sens. Daniel Akaka (D-Hawaii) and John Sununu (R-N.H.) introduced legislation that would add privacy and civil-liberties safeguards to the Real ID Act, the controversial legislation adopted last year. That act rolled back civil-liberties protections, attacked privacy rights, and set the stage for a national identification card. The Akaka-Sununu bill would eliminate most of the requirements that were laying the foundation for a national ID card, particularly the obligation that government data and computer systems be standardized. Implementing a standard driver’s licensing system in 50 states would be a fiscal sinkhole, costing billions of dollars. And standardized licenses would essentially place every U.S. citizen’s personal information into a one-stop shopping mall for identity thieves. Also this month, outgoing Senate Judiciary Committee Chairman Arlen Specter (R-Pa.) introduced legislation to guard the Constitution’s guarantee of fair legal representation. His bill would protect valid claims of attorney-client privilege while allowing prosecutors to pursue information they believe is not confidential. The senator is concerned about abuse of the policies endorsed by the so-called Thompson memo, under which prosecutors have pressured companies to waive attorney-client privilege to avoid prosecution. Preserving the right to counsel is vital to the justice system. It is the cornerstone of the Fifth and Sixth Amendments. Americans should not be bullied into waiving their rights, as has been the practice during multiple Justice Department investigations. PRIVACY AFTER 9/11 In addition to those two pieces of legislation, there’s also momentum gathering behind a much-needed omnibus privacy bill. Open discussion in Congress about the administration’s war on privacy is long overdue. The Bush administration has a clear record of hostility toward constitutional norms of privacy. Both Democratic and Republican lawmakers must reject White House arguments that try to justify domestic spying by the executive branch. In particular, it is dangerous and wrong to claim that the Foreign Intelligence Surveillance Act, the USA Patriot Act, the 9/11 use-of-force resolution, or the president’s vague Article II authority makes current surveillance practices lawful. Furthermore, our Constitution will remain in tatters unless Congress reforms the just-passed Military Commissions Act to reinstate habeas corpus for alleged enemy detainees. Nothing separates Americans more from our enemies than our commitment to fairness and the rule of law. Eliminating habeas corpus in detainee cases dishonors that commitment. Congress also should begin aggressive investigation into how the National Security Agency and other agencies have targeted innocent citizens, hold public hearings on the major civil-liberties issues raised by anti-terrorism efforts, and evaluate terrorist watch lists. The debate raised by NSA spying represents perhaps the most important dispute today over the intersection of new anti-terrorism efforts and those privacy principles vital to our way of life. Leahy recently said he’d never seen a Congress more derelict in its duties than the 109th. He also said the Judiciary Committee has a duty to repair the damage. That’s great news for America, because the pattern of the past five years has been the administration’s disregard for the rule of law and its willingness to tear apart the Constitution. It’s also a challenge to those Republicans who have already expressed concerns; the next Congress is their opportunity, as well. The 110th Congress can make a clean start by restoring privacy rights and habeas corpus, addressing attorney-client privilege, and renewing a commitment to genuine oversight. There is nothing partisan about these issues — they are simply the threads that will help weave our Constitution back together.
Caroline Fredrickson is the director of the Washington, D.C., legislative office of the American Civil Liberties Union.

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