Thursday, November 21, 2013

Essentially Liberty and Temporary Safety -- by Erec Stebbins

Essentially Liberty and Temporary Safety
Benjamin Franklin,1759
“Those who would give up Essential Liberty to purchase a little Temporary Safety, deserve neither Liberty nor Safety.” –Ben Franklin

"Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001" is the official name of the USA PATRIOT ACT, or simply Patriot Act. This was the first in a series of laws in response to the attacks of 9/11 that sought to enhance the security of the United States in the face of increased threats from international and domestic terrorism. In seeking to increase security, there was a necessary sacrifice of freedoms and liberties, and it is this trade-off that has been at the heart of the vociferous debate about this bill, and related (and even more extreme) laws that have been passed subsequently.
 "Live Free or Die" might be a romantic mantra (and the motto of the State of New Hampshire) but Congress, and judging from polls and the lack of concerted protest to these laws, most Americans, would rather live and give up some "unalienable" rights to secure their safety. With the Patriot Act, and its subsequent renewals and amendments, US law enforcement and government agencies gained sweeping new powers over Americans and their lives and information.  
Discussions of these new powers are numerous, and I will not reiterate them here. The main point is not the use of such powers to identify and stop "the bad guys."  The dangers of giving government, law enforcement, and the military such power is the possibility, and, given the historical record, near certainty, that these powers will be abused and used against law abiding citizens to control them. That is why the US Constitution instigated a separation of powers, produced a Bill of Rights, and many of the founders were frankly paranoid about any power handed to governments.
The Patriot Act was the first stone tossed in an avalanche of security laws that have already led to abuses, been challenged as unconstitutional, and which, many argue, are antithetical to the ethos and founding philosophy of the nation.
Habeas corpus
This ancient term (dating back in English common law to at least 1305), from the Latin for "you may have your body", is a legal action through which a prisoner/detainee can be released from "unlawful" detention. Typically this would mean detention/arrest that lacks sufficient evidence/cause. It is one of the most basic of human rights, and one of the first to go when governments become tyrannical. Throwing "problematic" people into a dungeon is the most effective way to silence them and remove their threat to the ruling powers, short of killing them outright (see below for how this is now also on the American radar).  
In a nutshell, "a writ of habeas corpus" means you can't get tossed in jail without evidence or trial or appeal for release. Proponents of "indefinite detention" of suspected terrorists argue that the US Constitution does not specifically grant the right of Habeas corpus, but merely outlines the extreme case when the Congress is permitted to restrict it. This is based on the "Suspension Clause" of Article I, which states that:


"The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it."
Interestingly, in this over 200 year-old provision, we see the very conflict of rights and security we face today. As many have noted, the US Constitution is a "war constitution" in many ways, written under threat of violence and understanding the nature of rebellion. This clause essentially states that if the nation is invaded or there is a rebellion (as in the Civil War), Congress can throw out this right, which is essentially what it has done in such situations, and likely would be expected to do in general under such duress.
The question facing us now is this: Do we consider the threat of terrorism as "activating" this clause? Are potential terrorists in our midsts equivalent to a "rebellion" or "invasion"?  
Some obviously consider the answer to this "yes." Various laws, including the Patriot Act and others, have been interpreted by many to mean that they restrict the right of habeas corpus, and allow indefinite detention without due process. But these laws do not expressly suspend the writ. As per Wikipedia (the October 2013 version of the entry, anyway):
"Regardless of whether the writ is positively guaranteed by the constitution, habeas corpus was first established by statute in the Judiciary Act of 1789. However, in the cases of Immigration and Naturalization Service v. St. Cyr (2001),[2] and Boumediene v. Bush (2008)[3] the U.S. Supreme Court suggested that the Suspension Clause protects "the writ as it existed in 1789," that is, as a writ which federal judges could issue in the exercise of their common law authority."
One can get into a legal quagmire with all this, but the point is that, "indefinite detention" comes close to, or crosses the line of, suspending the right of habeas corpus. This means that when the government "decides" that you are a threat, you can be "disappeared," indefinitely.
Some progress in restoring the writ seemed to be had with the Supreme Court case 2008 case Boumediene v. Bush (7 years after 9/11 makes for long imprisonment) where detainees were granted by the Court the right to challenge their detention, but of course, the devil is in the details, and the detainees seem to be practically without recourse given how hard it is to have their cases even heard:
"But in the years since the decision, conservative judges on the DC Circuit have interpreted the law in a way that assumes many of the government's claims are true and don't have to be proven in court. By not taking any of these cases, the Supreme Court has ensured these stricter rules will prevail. Civil-libertarian groups say that essentially leaves detainees at Gitmo with habeas rights in name only, since the rules make it virtually impossible for detainees to win in court. A Seton Hall University School of Law report from May found that, prior to the DC Circuit's reinterpretation of the rules, detainees won 56 percent of cases. Afterwards, they won 8 percent." - Mother Jones, "Did the Supreme Court Just Gut Habeas Rights?"

Torture, a.k.a. "Enhanced Interrogation"
In the "good old days", or even in the former Soviet Union and too many tyrannical nation-states on the planet right now, once the King threw you in the dungeon because he didn't like you, he could then order all sorts of horrors to be perpetrated against your body and mind. Even for convicted criminals, the US Constitution shows where its heart lies, banning "cruel and unusual punishment."  
Enter indefinite detention of terror suspects - not convicted of any crimes via anything like due process - and "enhanced interrogation". Whenever we use euphemisms like this, you know something shady is involved: isolation, exposure to extreme temperatures, enclosure in tiny spaces, sleep deprivation, bombardment with agonizing sounds at extremely damaging decibel levels, repeated near drownings (a.k.a., "waterboarding"), religious and sexual humiliation, etc., and these are the ones that have made it to the light of day.  
It is hard to find any moral/ethical system, religion, or national constitution (including the US Constitution) that would have any support for the systematic torture of human beings: even for the nasties, tried and convicted felons. Our laws for prisons and capital punishment seek to minimize suffering. Why become the very things we are fighting?
"Many of my comrades were subjected to very cruel, very inhumane and degrading treatment -- a few of them even unto death. But every one of us, every single one of us knew and took great strength from the belief that we were different from our enemies, that we were better than them, that we, if the roles were reversed, would not disgrace ourselves by committing or countenancing such mistreatment of them.  That faith was indispensable not only to our survival but to our attempts to return home with honor. Many of the men I served with would have preferred death to such dishonor." Senator John McCain, PBS Newshour, Oct 6, 2005
It is particularly troubling that prisoners detained without trial, without due process, indefinitely, hidden from the public and light of day, can also then be subjected to torture. It is (for some) perhaps easier to dismiss it when one allows oneself the thought that it is only happening to "bad guys." What if innocents are involved? Does the government never make mistakes?  What if this power is abused now or in the future? The infrastructure and culture of torture is in place: can it be adapted to the political?
Do we trust our governments with such power?

Extraordinary Rendition
I'll just leave here a word-for-word from the Wikipedia entry:
"Extraordinary rendition and irregular rendition are terms used to describe the apprehension and extrajudicial transfer of a person from one state to another, and the term "torture by proxy" is used by some critics to describe situations in which the U.S. has purportedly transferred suspected terrorists to countries known to employ harsh interrogation techniques that may rise to the level of torture."
2012 Defense Authorization Act
This bill, signed into law by President Obama December 31, 2011, continues the troublesome march away from basic freedoms Americans have taken for granted. One could summarize the act as granting the federal government the right to arrest and indefinitely detain through military powers, prisons, and courts anyone it deemed a sufficient threat to the United States. Citizen, or non-citizen, arrested abroad or on American soil. Without trial. By the military.
While proponents argue that there are many restrictions and protections for inappropriate use of this law, the point is that even laws before this that granted far less powers to the government and military were often abused: one has to be concerned that now legalizing snatches of citizens, their arrest and detention without trial/due process indefinitely, all by the military outside of normal channels of law enforcement, could potentially lead us down a very dark path. Again, the worry is not that this power will be used to stop the monsters that kill and destroy, but that (1) the innocent will be dragged into the net, far more frequently than anyone will admit, and (2) the power will be abused for political purposes by the unethical.

Defense Authorization Act: Quotes Across the Political Spectrum
“It puts every single American citizen at risk.  We must stand up to tyranny disguised as security.” - Senator Rand Paul, (R-KY) 
"And what we are talking about here is that Americans could be subjected to life imprisonment without ever being charged, tried, or convicted of a crime, without ever having an opportunity to prove their innocence to a judge or a jury of their peers. And without the government ever having to prove their guilt beyond a reasonable doubt.  I think that denigrates the very foundations of this country.” -Senator Al Franken, (D-Minn.)
"I would also point out that these provisions raise serious questions as to who we are as a society and what our Constitution seeks to protect." Senator Mark Udall, (D-Colo.)
"The constitutional right to due process is fundamental to individual liberty, and we must not sacrifice this right in the pursuit of perceived greater security. Without freedom there is no security." Senator Michael Lee, (R-UT)
"Congress is signing its own arrest warrants."  - Naomi Wolf

The Obama/Holden Doctrine
Perhaps one of the most shocking corollaries derived from the host of new security laws passed over the last decade can be summed up in the opinions put forth by Obama's Attorney General Eric Holder in 2012: namely, that the government is legally empowered to kill US citizens without due process. From Holder's speech to the University of Michigan:
"Let me be clear: an operation using lethal force in a foreign country, targeted against a U.S. citizen who is a senior operational leader of al Qaeda or associated forces, and who is actively engaged in planning to kill Americans, would be lawful...'Due process' and 'judicial process' are not one and the same, particularly when it comes to national security. The Constitution guarantees due process, not judicial process."
"The President and his underlings are your accuser, your judge, your jury and your executioner all wrapped up in one, acting in total secrecy and without your even knowing that he’s accused you and sentenced you to death, and you have no opportunity even to know about, let alone confront and address, his accusations; is that not enough due process for you?" - Glenn Greenwald

While it will always be the case that there will be needs to act against real nasties in fast ways, no matter who they are, it is another thing altogether to enshrine a doctrine that some have called "state-sponsored assassination". Killing an individual is the surest way to silence them. We are putting enormous trust in the government to act virtuously, basically trusting them with our lives and the lives of those we care about. More to the point, we are putting trust not "in the government", but in specific people who often make decisions in highly secretive ways that are poorly subjected to "checks and balances". One of the main ideas behind the Bill of Rights and the Constitution is that generally we CANNOT trust people to wield such power over others.

The New Obama Math
Male + military-aged + blown up by US drone = Dead Military Combatant. More slippery slope.
To get a taste (bitter) of how this Orwellian process might go, consider the redefinition of causalities in drone strikes:
Mr. Obama embraced a disputed method for counting civilian casualties that did little to box him in. It in effect counts all military-age males in a strike zone as combatants, according to several administration officials, unless there is explicit intelligence posthumously proving them innocent. - "Secret Kill List", NYTimes, May 29, 2012

Given that the Kill Lists are all Secret, and everything I've mentioned above that makes all decisions of life and death behind closed doors, without trials, and in the hands of a few, it's the final straw that they are adding in "get out of jail free cards" to wash their hands of the death (and torture, and wrongful imprisonment) of innocents.
And the "posthumous exoneration" has got to be entered into whatever official Orwellian dictionary there is. Stephen Colbert sums it up well:
"Now, folks. Now this isn't just the president executing innocent people around the world by fiat. There is an appeals process. The men are considered terrorist unless there is explicit intelligence posthumously proving them innocent. In which case, I assume there is a legal process that unkills them." Stephen Colbert, Two Birds with One Drone

Dangerous Synergy
For me, it is the pattern, the working together, of all these different new laws that is the most concerning.
Think about this: it is now legal/approved/justified for the government, or specific branches of the government, to declare anyone (you!) an "enemy combatant" (or whatever terminology is used), to do this WITHOUT trial or due process, behind closed and secretive doors, authorize your "extrajudicial" arrest/snatch/rendition based on this (even using the power of the US military), throw you in a dungeon (or Guantanamo, or some other hell hole anywhere in the world), and for as long as they want (no phone call, no lawyer, no trial) where they can torture you. There is nothing you or anyone else can do about it. Or, if it's their druthers, they can simply just murder you with flying robots.  
With the recent clearance to start using drones in America, the lines between operations abroad and at home could dissolve. While there has been some push back from Congress to limit drone use, it is unclear where all of this is going to end up. The military is certainly pushing for unrestricted flights of drones in the national air space, and given the powers granted to the military to act secretly even in the US in the war on terror, the use of drones is a concern.
“Without the ability to operate freely and routinely in the NAS, UAS development and training — and ultimately operational capabilities — will be severely impacted.” - Senate Armed Services Committee, report on the FY2013 defense authorization bill
Are robot missions to spy on and eliminate enemy combatant threats on American soil a possible future? And will the determination of who those threats are and what is to be done continue to be made secretly, without due process, with "baseball cards" in the Oval Office? And if they screw up, if you and your family members are blown back to God, will all of you (males at least!) simply be marked down for future generations as "enemy combatants" anyway?
People are marching on Washington complaining that the government is too big and powerful for requiring them to pay into pension and medical trust funds.  Funny - I'd rather give the government the power to tax me and create a medical fund than to kill me without trial with a robot if they don't like me.
Why aren't people marching about the powers we are ceding to our (at present) elected officials that allow them to label us, arrest and detain us indefinitely without trial, and kill us if they decide to?
I don't know about you, but the potential for horrific abuses in this loss of rights is terribly disturbing. Is the price of "security" worth it? 


Are we secure from our own government now?

--Erec