Real homeland security: accumulation of power at the federal level is actually making America less secure. The answer is to return to a law enforcement structure consistent with our Constitution.

We must choose, we are told, between security and liberty. If we wish to protect our lives and our nation against terrorists wielding weapons of mass destruction, we must be willing, insist the Bush administration and its many allies, to entrust our government with "whatever powers are needed to do the job." And those powers alleged to be so necessary keep growing day by day.

We must be subjected to more searches, screenings, and surveillance, not only at airports but at an ever-increasing number of public venues: court houses, schools, sporting events, bus stations, and train stations. Federal agencies must be empowered to easily and regularly monitor (without warrants) our telephone conversations, e-mail, text messaging, and financial transactions. Local sheriff and police departments must yield their jurisdictions to a national police, i.e., the FBI and the Department of Homeland Security. We must be ready to sacrifice certain sacred rights in the interest of survival: judicial warrants, habeas corpus, a speedy trial, due process, etc. After all, we are at war. And in wartime, it is the patriotic duty of citizens to back their government "all the way," right?

Trade Freedom for Safety & Lose Both

America's Founding Fathers were aware of this argument of necessity. "Safety from external danger is the most powerful director of national conduct," noted Alexander Hamilton in The Federalist, No. 8. He went on to warn: "Even the ardent love of liberty will, after a time, give way to its dictates. The violent destruction of life and property incident to war, the continual effort and alarm attendant on a state of continual danger, will compel nations the most attached to liberty to resort for repose and security to institutions which have a tendency to destroy their civil and political rights. To be more safe, they at length become willing to run the risk of being less free."

To be more safe, are we now more willing "to run the risk of being less free"? Apparently so, according to some polls and indicators. In the immediate aftershock of the September 11, 2001 terrorist attacks, Congress passed a torrent of legislation granting unprecedented new powers to the federal government. One of the first measures passed amidst the panic, anger, and chaos of that period, the so-called Patriot Act, was enacted virtually sight-unseen. Almost no one in Congress had actually read the bill and most did not even have a copy of it. Yet, under pressure to "do something," they overwhelmingly voted it into law.

However, opinion polls and the recent cliffhanger vote on renewal of the Patriot Act suggest that the American public may now be less willing to uncritically accept expanded federal police powers than they were when still reeling from the effects of 9/11. It took months of arm-twisting, pleading, and pressure for the White House to secure passage (by just two votes in the House) on March 7, 2006.

This is an encouraging sign that many more people are questioning the claims and assumptions underlying the push to gut the Constitution for the professed goal of protecting America against terrorism.

This is not a partisan issue; it is an issue that goes to the very heart of the security and liberty of every single American. The matters at stake are fundamental and urgent. We are faced with policies, proposals, and legislation that already are dismantling many of our constitutional checks and balances by piecemeal encroachment. If the process is not stopped and rolled back, it will eventually obliterate them entirely.

We do not know precisely where the point of no return is in this process. No one does--until it's too late. But we can recognize the process and the signposts. As James Madison, the "Father of the Constitution," observed: "Since the general civilization of mankind, I believe there are more instances of the abridgement of the freedom of the people by gradual and silent encroachments of those in power than by violent and sudden usurpations."

There is no question that Americans are becoming "less free," but in the trade-off, are we not at least becoming "more safe" from terrorism? Unfortunately, no. In fact, under George Bush, as under Bill Clinton, we are sacrificing both freedom and safety in a so-called "war on terror." In the name of security, we are allowing America to be transformed from a limited constitutional republic into a repressive police state. Again, we should heed Mr. Madison, who observed in The Federalist, No. 47, "The accumulation of all powers, legislative, executive, and judiciary, in the same hands ... may justly be pronounced the very definition of tyranny."

Contrary to current popular wisdom, much of the federal program being advanced under the "war on terror" banner cannot pass muster on either constitutional or practical grounds. It is essential for us to realize that maintaining our constitutional structure and principles is not merely a legal nicety but an absolute necessity if we are to be governed by the "rule of law" rather than dictatorial whim. But as a practical matter, our constitutional system also provides protections against terrorism that a centralized behemoth would not have.

As the Founders pointed out, we have not just a republic, but a "compound republic," with powers distributed not only among the legislative, executive, and judicial branches, but even more importantly, between the federal, state, and local governments. This arrangement not only provides an essential safeguard against dangerous concentration of power in government, but also provides a multi-layered defense-in-depth that is vital to defending America against terrorism.

As we will show, the properly constituted legislative, executive, and judicial offices at the federal, state, and local levels all have indispensable roles to play in providing a defense against terrorism. And as has been abundantly demonstrated by recent events, efforts to centralize and consolidate those separated powers into the Washington behemoth are not only illegal but disastrous from a practical standpoint as well. (Bigger is not always better, as repeated disasters at FEMA, Department of Homeland Security, and other mega agencies have shown).

Importance of the "Rule of Law"

President George Bush, like President Bill Clinton before him, has repeatedly expressed his commitment to the "rule of law." For Americans, the "rule of law" in the political realm begins with the U.S. Constitution, which is the "supreme law of the land." And a principal purpose of that law is to restrain the national government, limiting it to those powers and functions specified.

As Madison said in The Federalist, No. 14, the federal government "is not to be charged with the whole power of making and administering laws. Its jurisdiction is limited to certain enumerated objects, which concern all the members of the republic," but which the states cannot do for themselves. In The Federalist, No. 45, Madison expanded on this theme, writing: "The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce.... The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State." (Emphasis added.)

Alexander Hamilton, likewise, writing in The Federalist, No. 17, notes, "There is one transcendent advantage belonging to the province of the State governments, which alone suffices to place the matter in a clear and satisfactory light,--I mean the ordinary administration of criminal and civil justice."

To make unmistakably plain that powers not expressly given to the federal government cannot be assumed, the Founders constructed the Tenth Amendment, which states: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." This was an emphatic negative on the federal government, saying, in effect: "If we didn't say you can do it, you can't do it!"

The federal government's constitutional police powers are restricted principally to crimes involving treason, piracy on the high seas and offenses against the law of nations, counterfeiting, and customs and immigration enforcement. President Bush, like President Clinton before him, has invoked the Constitution many times to justify usurping powers that are either nowhere constitutionally delegated to the federal government or are specifically delegated to one of the other branches.

Some of his most egregious and persistent assaults concern arbitrary imprisonment without charge and the insistence that even American citizens may not have the benefit of their most ancient protection of habeas corpus, which Alexander Hamilton called "the BULWARK of the British Constitution." (Emphasis in original.)

Writing in The Federalist, No. 84, Hamilton notes that ex post facto laws "and the practice of arbitrary imprisonments, have been, in all ages, the favorite and most formidable instruments of tyranny." He quotes Blackstone, who remarks: "To bereave a man of life, or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole nation; but confinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore a more dangerous engine of arbitrary government."

When President Bush and Attorney General Ashcroft sent the first draft of the Patriot Act to the House Judiciary Committee, it contained a section entitled "Suspension of the Writ of Habeas Corpus." This was such an outrageous proposal that it was struck from the text. However, what couldn't be obtained in one outright usurpation is being obtained through gradual encroachment.

Similarly, the administration and its congressional lackeys have been whittling away the constitutional requirement of judicial warrants for search and seizure, claiming wide-ranging authority to wiretap phones, faxes, e-mail--virtually all electronic communications. Quoting Montesquieu, Hamilton writes in The Federalist, No. 78, "For I agree, that 'there is no liberty, if the power of judging be not separated from the legislative and executive powers.'" Resist efforts to undermine this important separation, Hamilton cautioned, "as no man can be sure that he may not be tomorrow the victim of a spirit of injustice, by which he may become gainer today."

Failures at the Federal Level

Since the 9/11 attacks, President Bush has greatly accelerated and expanded the Clinton plan for nationalizing our local police. In 1993, Charles Meeks, executive director of the National Sheriffs Association, warned that each time the government adds a new category of crime to the federal criminal code, "we're getting closer to a federal police state. That's what we fought against 200 years ago--this massive federal government involved in the lives of people on the local level." In March 1995, Congressman Helen Chenoweth (R-Idaho) held hearings into the massive abuses of force by federal agencies, especially as it was being applied to farmers, ranchers, and rural people by agencies such as the FBI, BATE the Forest Service, Park Service, and Fish and Wildlife.

In numerous cases, federal authorities were acting in an oppressive, dictatorial fashion. This culminated in two infamous cases in which federal law enforcement agencies ended up murdering U.S. citizens: Ruby Ridge (1991) and Waco (1995). In the Ruby Ridge, Idaho, case, federal agents intentionally shot and killed an 80-lb., 14-year-old boy and a mother, while she was holding her nursing infant. At Waco, federal agents were responsible for the deaths of more than 80 men, women, and children inside the Branch Davidian religious center.

Incredibly, it was the federal Justice Department and the FBI who were responsible for these atrocities, and yet it is these agencies that are unconstitutionally dictating to local police departments all across the U.S. (through so-called "consent decrees") how to run their police agencies. In 1998, the American Bar Association's Task Force on Federalization of Criminal Law decried the ongoing trend of usurpation of state authority by the federal government in the area of criminal law. The Task Force report noted that there were then over 3,000 federal crimes, most of which properly belonged under the jurisdiction of state and local authorities. Since then, an additional thousand crimes have been added to the federal criminal code, by some estimates, and the trend continues to escalate.

When it comes to fighting terrorism, the federal government obviously has a role, but the experience of government in general has proven that bigger is not always better. In fact, it's almost axiomatic that the bigger the government, the more corrupt, unaccountable, unresponsive, inept, wasteful, politically driven, and oppressive it is. Let's look at some examples:

* On September 11, 2001, some of the biggest, best-funded agencies in the world--the Defense Department (DOD), CIA, FBI, NSA, NORAD, FAA--failed miserably. The DOD and FBI could not even protect their own headquarters (the Pentagon in Washington, D.C. and the FBI offices at the World Trade Center). It was primarily local 1st Responders--police, firemen, paramedics--not the feds, who saved lives.

* The local FBI agents on the ground in Minnesota, Arizona, and California, who had commendably carried out their jobs and attempted to stop the hijackers in days previous to September 11, had been overruled by superiors at "bureaucracy central" in Washington, D.C.

* Likewise, when Hurricane Katrina hit New Orleans and the Gulf Coast the feds exacerbated the disaster. Private citizens and local responders provided the most essential assistance, while multi-billion dollar agencies like FEMA and Homeland Security were clueless, directing refugees to the wrong places, preventing aid from being delivered, and for days remaining completely ignorant of the situation of thousands of stranded, desperate people whose plight was being broadcast hourly over television news.

* Even now, months later, FEMA is engulfed in scandal, with billions of dollars in Katrina aid still being squandered and siphoned off into various private coffers instead of reaching the intended victims.

* The Department of Homeland Security, tasked with protecting our country, can't even protect its own headquarters in Washington, D.C., as shown by the fact that it outsourced this security duty to the British-owned company, Wackenhut, Inc. Wackenhut's security at DHS has been scandalously lax.

* Although they already have the constitutional duty to secure our borders, the president and Congress have stubbornly refused to provide the manpower and resources to do it. As a result, it is local sheriffs and police departments who are providing the only protection we have along critical sections of our borders. (See article on page 19.)

* Our seaports, like our borders, remain terribly vulnerable. Instead of fixing this dangerous gap in our security, the administration, incredibly, tried to place several of our most critical ports under the management of a company owned by the government of Dubai.

Multi-layered Defense-in-Depth

Even if one were to ascribe all of the above fiascoes only to incompetence (the most benign explanation), there should be plenty of cause for alarm and reason to question the rush to concentrate still more police authority in federal mega-agencies. America was blindsided on September 11, 2001 because America had been systematically blinded on internal security over a period of several decades and purposely stripped of the defense-in-depth that had previously provided protection. During the 1960s, '70s, and '80s, revolutionary attorneys for the ACLU and National Lawyers Guild (NLG) carried out a sustained campaign to destroy America's multi-layered defense against terrorism.

Financed by the big tax-exempt foundations (Ford, Rockefeller, Carnegie, etc.) and aided by their political, judicial, and media comrades, they waged a war of subversion against proper intelligence and police efforts, attacking (and successfully crippling or abolishing):

* The House Committee on Un-American Activities;

* The House Internal Security Subcommittee;

* The Senate Internal Security Subcommittee;

* The U.S. Attorney General's Subversive List;

* The Internal Security Division of the Department of Justice;

* The investigative committees on un-American activities and internal security in most state legislatures;

* The intelligence units and subversive files of virtually every major local and state police agency.

At the same time, the ACLU-NLG revolutionaries crippled border enforcement with an unending barrage of lawsuits against the Border Patrol and INS. Through their lawsuits and "reform" legislation, excluding and deporting undesirable aliens became more and more difficult. This has lead to the flooding of the United States with millions of illegal aliens, creating an impossible security nightmare.

The way out of this crisis is not to create still larger and more powerful federal agencies beholden to the same political forces (Democrat and Republican) that have produced our current calamity. This will only allow them to accelerate the ruin of the constitutional safeguards that remain. Just the opposite is needed.

We must reestablish the multi-layered defense-in-depth consonant with our security needs as well as the constitutional principles provided by the Founders. That means first and foremost keeping our local police forces local and independent of federal funding and controls. Local and state police should cooperate with federal law enforcement authorities in proper areas, including terrorism--as they have traditionally done--but they must not become mere administrative units of a federal police leviathan.

The federal legislative, executive, and judicial functions must be kept in their respective spheres, and efforts to combine or encroach must be adamantly opposed. Even more important, the extensive powers at the state and local levels must be protected against federal usurpation. Or, as Mr. Madison succinctly put it, "Ambition must be made to counteract ambition." And that, at this very critical juncture in the history of our battered republic, is a very ambitious and worthy goal indeed.