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The Fifth Column’s Legal Team By: Henry Mark Holzer
FrontPageMagazine.com | Tuesday, June 18, 2002


DESPITE ITS NAME – which is meant to suggest fealty to the Constitution and Bill of Rights of the United States of America – The Center for Constitutional Rights is a Leftist law factory that grinds out one anti-American case after another. Rather than acting to protect and preserve American constitutional values – e.g., freedom and capitalism – the Center exists to attack and undermine those values.

While one could devote an entire book to demonstrating that the Center was founded by America-haters, that its agenda has always been rabidly pro-Left, and that for nearly four decades it has advanced that agenda in courtrooms, legislatures, and through the media, a sufficient case can be made against the Center just from its Mission Statement and its post-September 11 conduct.

“The Center,” we are told on its website, “is . . . dedicated to protecting and advancing the rights guaranteed by the U.S. Constitution and the Universal Declaration of Human Rights.

In 1948, the UN General Assembly proclaimed the so-called Universal Declaration of Human Rights.  What were they? Among other things: “freedom from fear,” “brotherhood,” “right to work,” “just and favourable remuneration,” “the right to rest and leisure,” and one’s “right to a standard of living adequate for the health and well-being of himself and of his family.”

It is no wonder that with marching orders like these, The Center For Constitutional Rights has traditionally been involved in some of the most anti-American, pro-Leftist, public policy and litigation imaginable, and on behalf of those who hate our country as much as does the Center.

Its clients, with whose views the Center’s leadership have always identified and supported, have included Tom Hayden, the Black Liberation Movement, the Student Nonviolent Coordinating Committee, Students for a Democratic Society, Women’s Strike for Peace, and the Communist Party.

Domestically, the Center has defended the Chicago 7 rioters, complained about the deaths of two Black Panther gangsters and the incarceration of an Indian activist convicted of killing two F.B.I. agents, fostered prisoners’ so-called rights, undermined the authority of grand juries and Congressional investigating committees, attacked governmental counterintelligence programs, lobbied for the prosecution of New York’s governor and other state officials for putting down the Attica prison revolt, and justified Indians’ stealing other people’s lands.

Internationally, the Center argued in court that: The Vietnam War was unconstitutional and criminal; bombing North Vietnam was illegal; the Nuremberg war crimes laws should have been applied to Americans involved in the Vietnam War; our military should be restrained from fighting in Cambodia; saving babies from the Communist onslaught in Vietnam was wrong; the Navy could not use a Puerto Rican island for bombing practice.  In addition, the Center attacked United States anti-Communist foreign policy concerning El Salvador, Nicaragua, Chile, Cuba, and elsewhere in Central and South America.

All of this The Center For Constitutional Rights had done, supposedly, in the name of “protecting and advancing the rights guaranteed by the U.S. Constitution and the Universal Declaration of Human Rights.”   Well, perhaps the latter, but certainly not the former.

And now, despite the undeniable fact that America is fighting for its life in what will go down in history as the worst war of modern times, the Center is at it again – attacking each of the three pillars of the government’s response, so far, to that war.

Detention of aliens.  The Center recently filed a class action lawsuit on behalf of alien detainees – who had no legal right to be in the United States – seeking punitive damages and a declaratory judgment that the detention is unconstitutional and violates customary international law.  In an obscene distortion of reality, the Center’s Assistant Legal Director, Barbara Olshansky, stated that the alien-plaintiff detainees should be “counted among the victims,” a perverse thought if ever there was one – since the question is whether any of the detainees were in league with the killers. Obviously neither Olshansky nor the Center is willing to admit the obvious:  that we are in a life-or-death struggle with proven terrorists.

Military Tribunals.  As to President Bush’s Order establishing Military Tribunals, Olshansky –  not surprisingly, and in an effort to discredit it – lumped the Order together with other “notorious episodes in our nation’s history”: “The Red scare and the Palmer Raids after the First World War, the internment of Japanese Americans during the Second World War, the repressive and chilling measures of the McCarthy era, and the harassment and prosecution of political dissidents during and after the Vietnam War. . . .”

The Assistant Legal Director of The Center for Constitutional Rights could not be more off base.  In the first place, she neglected to mention that the so-called Palmer Raids were sparked by radicals’ attempt to blow up the Attorney General of the United States, and their posting mail bombs to some 100 innocent people.  (Sound familiar?) 

As to the internment of Americans of Japanese ancestry, she neglects to mention that the plan was the brainchild of FDR and then-California Governor Earl Warren.  Moreover, there is no legitimate comparison possible between uprooting innocent American citizens from their homes and interning them, and trying non-citizen accused terrorists in a Military Tribunal cabined with multiple procedural and substantive safeguards.  Rather than being the “radical departure from the key constitutional guarantees that we view as the heart of American democracy,” that Olshansky so characterizes the Military Tribunals, the fact is that President Bush’s Military Tribunal Order is not “unprecedented,” as she claims.  President Franklin Delano Roosevelt issued an order for Military Tribunals, its constitutionality was upheld by the Supreme Court of the United States, and several of the Nazi saboteurs who were tried by those tribunals held American citizenship (President Bush’s Order does not apply to Americans), and some of them were hanged.  So much for a “radical departure.” 

Whatever Olshansky means by the “repressive and chilling measures of the McCarthy era,” the fact is that other than the Senator’s rantings (for which he eventually paid a price), virtually all the conduct that the Left continues to complain about from that period was private, not governmental, action.  Moreover, during that time we witnessed the spectacle of avowed and crypto-Communists, while portraying themselves as victims, cynically and hypocritically invoking their First and Fifth Amendment rights to protections afforded by a Constitution that not only didn’t they believe in, but one which they were trying to subvert – while their party actively engaged in espionage on behalf of their real motherland, the Soviet Union.

That leaves Vietnam, and Olshansky’s charge that at that time there was “harassment and prosecution of political dissidents.”  Rubbish. Time and time again, the courts protected the dissidents’ freedom of speech and association.  Time and time again, the government stood by while the likes of Jane Fonda and Tom Hayden, and other fellow travelers, journeyed to the capital of our enemy and there gave aid and comfort to the Communist North Vietnamese.  Time and time again, dissidents were allowed, indeed encouraged, to undermine America’s effort to stop Communism in Asia.  Time and time again – perhaps as many as 1,000 times – “dissidents” exploded lethal bombs, here in the United States, mostly with impunity from “harassment and prosecution.”  Ms. Olshansky has misstated and distorted the facts.  Indeed, if there is any lesson to be drawn from the so-called “witch hunts” that Olshansky rails against, it is that the policies and methods that underlay them turned out to be inadequate to protect the United States from the terrorism of September 11.  In other words, the laxity of our self-defense institutions in the past, together with what can legitimately be called a long-term “Fifth Column” of those who have sympathized with our enemies, poses an incalculably serious and difficult problem for us today.  Thus, Oshansky’s absurd, even immoral, diatribe against the new Military Tribunal security measure designed to protect the people of the United States from those seeking to destroy us is quintessential hard-Left rabble-rousing propaganda, designed to cast the victims in the role of criminals.

The USA Patriot Act.  Enacted by a huge majority in the House of Representatives (356-66) and almost unanimously in the Senate (98-1), this legislation – some 342 pages long – is the keystone of the American government’s legal response to what some have rightly called World War III.  It goes far to arming the present, and all future, administrations – Republican and Democrat alike – with the weapons we’ll need to fight this unconventional war. 

Which is why, predictably, The Center For Constitutional Rights doesn’t like it.

The Center has two major complaints.  First, according to Olshansky, the new law “confers vast and unchecked powers to the executive branch.”  [One wonders about the Center’s concern with the “vast and unchecked powers” of Generalissimo Castro, to whose Caribbean paradise the Center wants Americans to be free to travel.]  Second, the Center decries the “suspension of civil liberties,” citing the “silencing of political dissent,” “the death knell [of] privacy,” and “stripping immigrants of constitutional protections.”  However, in a consummate example of trying to have their Constitution/Declaration cake and eat it too, the Center’s concern about “vast and unchecked powers” seems to be mollified by a reluctant – albeit, hypocritical – willingness to put its faith in a sometimes ally, the judiciary.  In Part III of the Center’s White Paper on the supposed terrible danger facing this Nation’s civil liberties as we fight for our very existence, the Center asks “Will the judiciary rein in the executive and uphold the Bill of Rights?”  Its answer is “maybe.

Yet again, neither the Center’s Assistant Legal Director, Barbara Olshansky, nor the Center itself, recognizes – nor will they allow our government to act on the knowledge – that we are in a life-or-death struggle with terrorists whose sole purpose in this life is to destroy the United States of America.

Or do they?

Given the clear historical record of Communist subversion dating back to at least the 1920s, given The Center For Constitutional Rights’ nearly four-decade attack on core American values and its defense of those who would denigrate if not destroy those values, and given the Center’s current attack on reasonable anti-terrorist measures our Congress and president have taken to protect our country, the conclusion is inescapable that this woefully misnamed organization knows full well what it’s doing.  That while wrapping itself in the flag and appearing to defend the Constitution, The Center for Constitutional Rights is actually devoted to beliefs and actions that could not be more antithetical to America’s best interests – and, now, to its self-preservation, and the saving of countless lives of innocent American men, women and children.

The irony is that only in America can those seeking to destroy what we hold dear masquerade as defenders of those values.  But, eventually, every masquerade ends, and when the mask comes off the impostor stands revealed.  We can hope that for The Center for Constitutional Rights, that day is not far off.


Henry Mark Holzer, Professor Emeritus at Brooklyn Law School, is a constitutional lawyer and author most recently of The Supreme Court Opinions of Clarence Thomas, 1991-2006, A Conservative’s Perspective.



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