10 Reasons The US
Is No Longer The Land Of The Free
http://www.stewwebb.com/breaking_news.htm
10 Reasons The U.S. Is No Longer The Land Of
The Free
Jonathan
Turley is the Shapiro professor of public interest law at George Washington
University.
http://jonathanturley.org/2012/01/15/10-reasons-the-u-s-is-no-longer-the-land-of-the-free/
Published 1, January 15,
2012
Below is today’s column in the Sunday Washington Post. The
column addresses how the continued rollbacks on civil liberties in the United
States conflicts with the view of the country as the land of the free. If we
are going to adopt Chinese legal principles, we should at least have the
integrity to adopt one Chinese proverb: “The beginning of wisdom is to call
things by their right names.” We seem as a country to be in denial as to the
implications of these laws and policies. Whether we are viewed as a free
country with authoritarian inclinations or an authoritarian nation with free
aspirations (or some other hybrid definition), we are clearly not what we once
were.
Every year,
the State Department issues reports on individual rights in other countries,
monitoring the passage of restrictive laws and regulations around the world.
Iran, for example, has been criticized for denying fair public trials and
limiting privacy, while Russia has been taken to task for undermining due process.
Other countries have been condemned for the use of secret evidence and torture.
Even as we
pass judgment on countries we consider unfree,
Americans remain confident that any definition of a free nation must include
their own — the land of free. Yet, the laws and practices of the land should
shake that confidence. In the decade since Sept. 11, 2001, this country has
comprehensively reduced civil liberties in the name of an expanded security
state. The most recent example of this was the National Defense Authorization
Act, signed Dec. 31, which allows for the indefinite detention of citizens. At
what point does the reduction of individual rights in our country change how we
define ourselves?
While each
new national security power Washington has embraced was controversial when
enacted, they are often discussed in isolation. But they don’t operate in
isolation. They form a mosaic of powers under which our country could be
considered, at least in part, authoritarian. Americans often proclaim our
nation as a symbol of freedom to the world while dismissing nations such as
Cuba and China as categorically unfree. Yet,
objectively, we may be only half right. Those countries do lack basic
individual rights such as due process, placing them outside any reasonable definition
of “free,” but the United States now has much more in common with such regimes
than anyone may like to admit.
These
countries also have constitutions that purport to guarantee freedoms and
rights. But their governments have broad discretion in denying those rights and
few real avenues for challenges by citizens — precisely the problem with the
new laws in this country.
The list of
powers acquired by the U.S. government since 9/11 puts us in rather troubling
company.
Assassination
of U.S. citizens
President
Obama has claimed, as President George W. Bush did before him, the right to
order the killing of any citizen considered a terrorist or an abettor of
terrorism. Last year, he approved the killing of U.S. citizen Anwar al-Awlaqi and another citizen under this claimed inherent
authority. Last month, administration officials affirmed that power, stating
that the president can order the assassination of any citizen whom he considers
allied with terrorists. (Nations such as Nigeria, Iran and Syria have been
routinely criticized for extrajudicial killings of enemies of the state.)
Indefinite
detention
Under the
law signed last month, terrorism suspects are to be held by the military; the
president also has the authority to indefinitely detain citizens accused of
terrorism. While Sen. Carl Levin insisted the bill followed existing law
“whatever the law is,” the Senate specifically rejected an amendment that would
exempt citizens and the Administration has opposed efforts to challenge such
authority in federal court. The Administration continues to claim the right to
strip citizens of legal protections based on its sole discretion. (China
recently codified a more limited detention law for its citizens, while
countries such as Cambodia have been singled out by the United States for
“prolonged detention.”)
Arbitrary
justice
The
president now decides whether a person will receive a trial in the federal
courts or in a military tribunal, a system that has been ridiculed around the
world for lacking basic due process protections. Bush claimed this authority in
2001, and Obama has continued the practice. (Egypt and China have been
denounced for maintaining separate military justice systems for selected
defendants, including civilians.)
Warrantless
searches
The
president may now order warrantless surveillance, including a new capability to
force companies and organizations to turn over information on citizens’
finances, communications and associations. Bush acquired this sweeping power
under the Patriot Act in 2001, and in 2011, Obama extended the power, including
searches of everything from business documents to library records. The
government can use “national security letters” to demand, without probable
cause, that organizations turn over information on citizens — and order them
not to reveal the disclosure to the affected party. (Saudi Arabia and Pakistan
operate under laws that allow the government to engage in widespread
discretionary surveillance.)
Secret
evidence
The
government now routinely uses secret evidence to detain individuals and employs
secret evidence in federal and military courts. It also forces the dismissal of
cases against the United States by simply filing declarations that the cases
would make the government reveal classified information that would harm
national security — a claim made in a variety of privacy lawsuits and largely
accepted by federal judges without question. Even legal opinions, cited as the
basis for the government’s actions under the Bush and Obama administrations,
have been classified. This allows the government to claim secret legal
arguments to support secret proceedings using secret evidence. In addition,
some cases never make it to court at all. The federal courts routinely deny
constitutional challenges to policies and programs under a narrow definition of
standing to bring a case.
War
crimes
The world
clamored for prosecutions of those responsible for waterboarding
terrorism suspects during the Bush administration, but the Obama administration
said in 2009 that it would not allow CIA employees to be investigated or
prosecuted for such actions. This gutted not just treaty obligations but the
Nuremberg principles of international law. When courts in countries such as
Spain moved to investigate Bush officials for war crimes, the Obama
administration reportedly urged foreign officials not to allow such cases to
proceed, despite the fact that the United States has long claimed the same
authority with regard to alleged war criminals in other countries. (Various
nations have resisted investigations of officials accused of war crimes and
torture. Some, such as Serbia and Chile, eventually relented to comply with
international law; countries that have denied independent investigations
include Iran, Syria and China.)
Secret
court
The government
has increased its use of the secret Foreign Intelligence Surveillance Court,
which has expanded its secret warrants to include individuals deemed to be
aiding or abetting hostile foreign governments or organizations. In 2011, Obama
renewed these powers, including allowing secret searches of individuals who are
not part of an identifiable terrorist group. The administration has asserted
the right to ignore congressional limits on such surveillance. (Pakistan places
national security surveillance under the unchecked powers of the military or
intelligence services.)
Immunity
from judicial review
Like the
Bush administration, the Obama administration has successfully pushed for
immunity for companies that assist in warrantless surveillance of citizens,
blocking the ability of citizens to challenge the violation of privacy.
(Similarly, China has maintained sweeping immunity claims both inside and
outside the country and routinely blocks lawsuits against private companies.)
Continual
monitoring of citizens
The Obama
administration has successfully defended its claim that it can use GPS devices
to monitor every move of targeted citizens without securing any court order or
review. It is not defending the power before the Supreme Court — a
power described by Justice Anthony Kennedy as “Orwellian.” (Saudi Arabia
has installed massive public surveillance systems, while Cuba is notorious for
active monitoring of selected citizens.)
Extraordinary
renditions
The
government now has the ability to transfer both citizens and noncitizens to
another country under a system known as extraordinary rendition, which has been
denounced as using other countries, such as Syria, Saudi Arabia, Egypt and
Pakistan, to torture suspects. The Obama administration says it is not
continuing the abuses of this practice under Bush, but it insists on the
unfettered right to order such transfers — including the possible transfer of
U.S. citizens.
These new
laws have come with an infusion of money into an expanded security system on
the state and federal levels, including more public surveillance cameras, tens
of thousands of security personnel and a massive expansion of a terrorist-chasing
bureaucracy.
Some
politicians shrug and say these increased powers are merely a response to the
times we live in. Thus, Sen. Lindsey Graham (R-S.C.) could declare in an
interview last spring without objection that “free speech is a great idea, but
we’re in a war.” Of course, terrorism will never “surrender” and end this
particular “war.”
Other
politicians rationalize that, while such powers may exist, it really comes down
to how they are used. This is a common response by liberals who cannot bring themselves
to denounce Obama as they did Bush. Sen. Carl Levin (D-Mich.), for instance,
has insisted that Congress is not making any decision on indefinite detention:
“That is a decision which we leave where it belongs — in the executive branch.”
And in a signing
statement with the defense authorization bill, Obama said he does not intend to
use the latest power to indefinitely imprison citizens. Yet, he still accepted
the power as a sort of regretful autocrat.
An
authoritarian nation is defined not just by the use of authoritarian powers,
but by the ability to use them. If a president can take away your freedom or
your life on his own authority, all rights become
little more than a discretionary grant subject to executive will.
The framers
lived under autocratic rule and understood this danger better than we do. James
Madison famously warned that we needed a system that did not depend on the good
intentions or motivations of our rulers: “If men were angels, no government
would be necessary.”
Benjamin
Franklin was more direct. In 1787, a Mrs. Powel confronted Franklin after the
signing of the Constitution and asked, “Well, Doctor, what have
we got — a republic or a monarchy?” His response was a bit chilling: “A
republic, Madam, if you can keep it.”
Since 9/11,
we have created the very government the framers feared: a government with
sweeping and largely unchecked powers resting on the hope that they will be
used wisely.
The
indefinite-detention provision in the defense authorization bill seemed to many civil libertarians like a betrayal by Obama. While
the president had promised to veto the law over that provision, Levin, a
sponsor of the bill, disclosed on the Senate floor that it was in fact the
White House that approved the removal of any exception for citizens from
indefinite detention.
Dishonesty
from politicians is nothing new for Americans. The real question is whether we
are lying to ourselves when we call this country the land of the free.
Jonathan
Turley is the Shapiro professor of public interest law at George Washington
University.
Washington
Post (Sunday) January 15, 2012
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