TERROR WARS
Poll Shows Security Imbalance In US
by Shaun Waterman
UPI Homeland and National Security Editor
Washington (UPI) April 26, 2007
By a large margin, Americans feel the Bush administration has tipped the balance of security against liberty too far towards security, a new UPI/Zogby polls shows.
But the public remains closely divided on the president's most controversial security programs, favoring by small margins warrantless wiretaps against terror suspects and the broad mining by federal agencies of personal data about U.S. citizens.
When asked whether the Bush administration had "found the right balance between personal security and personal freedom," only one-third (33 percent) agreed. Nearly half (49 percent) agreed instead that the "administration has tipped the balance too far towards security."
Only 7 percent agreed with the third option, that the balance was tipped "too far towards freedom, leaving our security weak."
Asked about specific security programs run by the administration, Americans were generally more supportive of those targeting foreigners.
Two-thirds (66 percent) agreed that the U.S. government had the right to collect personal data about foreign airline passengers coming to the country, which has been a source of ongoing friction with the European Union.
Fifty-five percent agreed that the Terrorism Surveillance Program was "a necessary and legal tool to protect Americans," and 42 percent disagreed. Under the program, the National Security Agency conducts court-authorized but warrantless surveillance of international communications by Americans with suspected terrorists.
But 62 percent also agreed with the proposition that "the government should always be required to get a warrant or court order before monitoring the phone conversations or e-mails of American citizens or legal immigrants."
Americans also appeared closely divided on the merits of federal agencies analyzing vast collections of personal data to look for patterns and connections that might reveal terrorist activity.
Asked about such techniques, known as data-mining, 50 percent agreed that U.S. agencies should be allowed to use them on personal data "like credit card transactions, charitable donations and travel histories," while 46 percent disagreed.
Men were more likely than women to believe that the administration had got the balance between security and freedom right (39 percent for men; 28 percent for women). Women were more likely than men to believe that the balance had tipped too far toward security (53 percent, compared with 45 percent for men).
When broken down by the self-professed ideology of respondents, the survey reveals a predictable near-unanimity among progressives and liberals that the balance has tipped too far towards security. Sixty percent of moderates feel the same way -- 11 percent more than the population as a whole.
Looking at party affiliation, 69 percent of Republicans believe the administration has the balance right, but only 28 percent of independents agree. Fifty-three percent of independents believe the balance is skewed too far to security, 4 percent more than the general population.
The idea that the administration had struck a good balance grew more popular with the increasing age of the respondents. Among 18- to 24-year-olds, 64 percent believed the balance was skewed to security, and only 18 percent thought the administration had it right.
But that balance tilts gradually through increasing age ranges, until among those 70 and over, 49 percent believe the balance to be right and only 35 percent see it as tilted to security.
Similar age-related variations can be seen in opinions about individual programs. Only 38 percent of 18- to 24-year-olds support the Terrorism Surveillance Program, compared with 55 percent of the general population and 72 percent of those 70 and older.
There was also a pronounced gender gap. Sixty percent of men believed the program was "legal and necessary," compared with only 50 percent of women.
Independents were almost as supportive of the program as the general population (53 percent, compared to 55), but only 20 percent of Democrats see it as legal and necessary, compared with 93 percent of Republicans.
There was lukewarm support for an administration proposal, contained in the intelligence authorization bill currently stalled in the Senate, to suspend certain provisions of the Privacy Act to facilitate counter-terrorism information sharing.
Only 39 percent of respondents agreed with that idea, and 54 percent opposed it. Support was much higher among Republicans (68 percent), slightly lower among independents (33 percent), and almost negligible among Democrats (16 percent).
Source: United Press International
Showing posts with label civil liberties. Show all posts
Showing posts with label civil liberties. Show all posts
Saturday, April 28, 2007
Thursday, April 12, 2007
Military Trumping of the Padilla Jury
Related
Presidential Candidate: U.S. In Danger of Dictatorship
---
Thursday, April 12, 2007
Jacob Hornberger’s Commentary
The Jose Padilla trial begins on Monday. As most everyone knows, this is a jury trial, which means that 12 ordinary people in the Miami area will be deciding whether Padilla is guilty or not of the terrorism charges that he has been indicted for.
What is important for everyone to recognize is the magnitude of the legal revolution that has taken place in the United States, post 9/11, with respect to what happens if the jury returns a verdict of not guilty.
Ever since the founding of the United States and prior to 9/11, if a person was acquitted in a federal criminal case, he would be immediately released from the government’s custody as soon as the jury returned a verdict of not guilty. The jury’s verdict had always been considered final. The judge had no choice but to immediately order the release of the defendant, who would walk out of the courtroom a free man immediately after the jury foreman announced two words: “Not Guilty.”
After 9/11, the law changed by virtue of orders issued by the president and the Pentagon. Announcing a “war on terrorism,” the president and the Pentagon declared that all people accused of terrorism, including Americans, would henceforth be considered “enemy combatants” and thereby be subjected to what amounted to perpetual military incarceration without trial. That declaration was ultimately ratified by the congressionally enacted Military Commissions Act.
As a result of those actions, if Padilla is acquitted by a jury of his peers, that still doesn’t mean that he will be released from government custody. At that point, despite a jury verdict of “Not Guilty,” the Pentagon has the option of taking Padilla back into custody as an “enemy combatant” and continue imprisoning him for the rest of his life.
The significance of this post-9/11 legal revolution is threefold:
(1) For centuries, the finality of a jury’s verdict has been considered an essential part of the freedom of the American people. That’s in fact why our American ancestors included the right to trial by jury in the Bill of Rights. It’s one of the things that have distinguished Americans from most of the rest of the world;
(2) The loss of finality to the jury’s verdict is part of the bundle of rights and freedoms that Americans traded away in return for “safety” from “the terrorists” after 9/11; and
(3) Everything federal officials, including those in the Pentagon, are doing to Padilla, they also have the authority to do all Americans.
Mr. Hornberger is founder and president of The Future of Freedom Foundation.
Wednesday, April 4, 2007
Social Fear and the Commodification of Terrorism
The post-September 11 economy of the United States has become a fear-infested and sober landscape. National security and security-related corporations are providing the major visible economic growth.
Joe Lockard
Don't Worry, Keep Rolling!The post-September 11 economy of the United States has become a fear-infested and sober landscape. National security and security-related corporations are providing the major visible economic growth. Corporate sectors without any discernable claim on security products nonetheless work to integrate a national security consciousness into their corporate images. Grim, determined, and upbeat patriotism is being used to sell any product that needs selling.
Ad campaigns experiment on how to function within this economic sobriety, as evidenced in those quite successful "Keep America Rolling" auto ads that General Motors rolled out. George Bush tells the country "Let's roll!" and revoices the words of an airline passenger who fought back, while at the same time echoing a General Motors logo. National security fears and durable goods, statesmanship and salesmanship, have been woven together by a fluid consumption-oriented language. To be behind the wheel is to control national fate in the face of international terrorism.
Corporations with central positions in the U.S. economy, like the airlines, have dealt with the situation by lining up for billions in federal support and stuffing "free market — no government interference" rhetorical claims in their back pockets. Since the function of capitalism is to protect capital, not labor, unemployed workers do not get generous Congressional handouts. Social expenditures go to alleviate corporate fears, but the fears of private citizens remain private business.
This fear-intensive economy elides a central truth of economic life: social fears are a constant source of profit. Without fear and insecurity, capitalism would not have the economic sanctions that make it profitable. Progressive politics since the nineteenth century have undertaken the task of alleviating social insecurity and replacing fear with social security, either with or absent first-letter capitalization. Post-'60s normative Western capitalism has continued to pursue the basic intellectual outline of Friedmanian economics, which emphasizes the market utility of holding down social expenditures and imposing sanctions on labor. A "liberalizing" IMF-oriented economy, as with those in eastern Europe and other regions, cuts back on pre-existing social protections in the name of economic efficiency and competition, thus raising the prevalence of social fear.
Yet if economic fear is a persuasive mode of social coercion, it can also function as a mode of consumption. Preventative consumption is a fear response that seeks to avoid the consequences of unpreparedness or inaction. Consumption itself becomes a defense against fears, rational or irrational. Since September 11, the spectre of Islamic terrorism has generated a market for products that can locate themselves within this conceptual framework of preventative consumption. A product's precise relation to the political phenomenon is irrelevant. Rather, marketability in the fear market relies on associative links. Risk, ever-present in the economic calculus, suddenly has an attributable face. Preventative consumption takes those social risks caused by foreign, alien hatreds, and reduces them into the manageable features of known products.
Fear itself has become a consumption item, and fear-dependent corporations feed off a public paranoia created by terror attacks. From health insurance to financial services ads that emphasize "security," the media has filled with appeals to prevent what is almost impossible to prevent and to do so through product consumption. Islamic terrorism has become an invisible brand name that joins disparate products anew. The fear of Allah-bonded men with death wishes and distant mullahs is the covert unmentionable that enables insurance companies and Florsheim Shoes to employ the Statue of Liberty as their new-old advertising flack, or Ralph Lauren to merge Polo shirts with the flag. All reaffirm freedom as consumer freedom. Images of American shrines and commercial invocations of "E Pluribus Unum" nationalize consumer purchasing power. To buy American is to meet the enemy.
As we buy on, we roll on.
Entrepreneurship of FearIt is the small-time profiteers of fear who speak messages that more socially restrained and polite major corporate advertising cannot voice directly. These are not the predictable Internet fraudsters who are hawking multivitamins against anthrax. Rather, outside the world of brand-name privilege and close to populist political roots, an entrepreneurship of fear has emerged to calm and consolidate fear as socially useful consumption activity. The small-time contractors who built backyard fallout shelters fifty years ago have their contemporary followers in bio-war rubber suit suppliers and survival school instructors.
Still, these are opportunists with a product or service, not ideological articulations in their own right. For that deeper level, the expensive and glossy Terrorism Survival Guide is a magazine that suits the times like the Whole Earth Catalog suited the '60s. Stocked with Ruger ads and shooting school addresses, it is the second number of an Operation Enduring Freedom series being published by Pantheon International. The cover features a crowd of subtitles, ranging from the informative "The Common Sense Guide to Staying Safe" to the alarming "Dangers We Face Now! What You Can Do to Meet the Threats!"
It is a home-front magazine, with men in white rubber suits and another subtitle reading "Anthrax and Bio-Terror: Facts vs. Fear! Reality vs. Rumor!" Beautiful Homes and Gardens goes to bio-war. The Terrorism Survival Guide reformulates economic activity as motivated survival; its pages map out how to consume to survive. Homeland security and household security have merged into one.
The Terrorism Survival Guide testifies eloquently to how fear, in itself, is a domestic commodity. Its extensive guns and survival book advertising rely on reader fear of social threats and general social chaos to promote sales. These are home safety products that render home as a place impregnable against fear of terrorism. In a couple of photographs, a middle-aged blonde woman displays home defense techniques. In one photograph of the new suburban hospitality, this well-prepared matron crouches to open the front door holding a pistol at the ready for any unexpected guest. Another posed photo has the same woman peering off a second-floor balcony, showing how to cover the front driveway with a sniper rifle. An article on post-September 11 child psychology features the graphic accompaniment of a full-page photo of a toothy little girl in a clear plastic gas mask with face mike, carrying a Barbie doll dressed up with another gas mask. The essays identify sources of fear, and the advertising provides home-front solutions.
If the home is a prime target that must be rendered defensible, the neighborhood is equally a vulnerable target. In this world of fresh domestic threat, explains one writer, the local infrastructure is a prime target. "For example, before all this craziness, you may not have noticed that vehicle parked inappropriately near the county electric station. Make note of it now and report it. Before September 11 you might not have thought twice about people acting strangely around the local reservoir. You had better think twice now." George Bush made these same sentiments sound presidential when he asked citizens to watch for people "acting suspiciously" around chemical plants.
Because the sources of supply into homes are at risk, homeowners need to prepare their regional lines of defense. There is an emphatic demand for explanation of the unknown, together with suspicion of those outside the norm or those who ask questions about the world. "Beware of anyone asking untoward questions regarding schedules, conveyance methods, social gatherings," advises Basic Anti-Terrorism Tip #3, followed by Tip #5's caution, "Be wary of individuals whose movements and actions are not logically motivated." Discrepant cultural logics, according to this hometown anti-terrorism philosophy, require fear, investigation, and action.
According to every essay and ad in this journal, the answer to these insecurities is: buy a gun! Although a gun will be useless in the face of the chemical, biological, and nuclear threats that the Terrorism Survival Guide details, poor logic never seems to burden the magazine editors. Rather, a firearm becomes a palpable defense even if it offers no protection. Buying a gun is simply the opposite of submission. The journal's editor, Michael Bane, frames this as a moral choice. "Like many Americans, I reached a moral and ethical crossroads after The Attack. I believe that although, in the real world, there are times when we must submit, as a culture and a nation, we have come to see submission as the preferred option."
In the Guide, a refusal to acknowledge a need to own personal weapons equates with capitulation and an acceptance of victimization. The notion that other means of self-defense may be more appropriate and effective never arises in this journal. Like so much else that passes for anti-terrorism self-defense here, personal firearms ownership represents no more than symbolic purchasing. That need for a physical symbol of resistance, a new Remington stashed under the bed as a defense against inchoate foreign threats, is the same operative social mechanism that moves consumers who buy durable goods as a response to terrorism. Panic buying is a crisis response to violence, a means of managing excess social fear. Social fear never lacks for profit opportunities.
Homeland InsecuritySince ideology provides the conditions of consumption, the articles of the Terrorism Survival Guide establish an ideology that redirects readers into security-oriented consumption. Michael Bane provides an article entitled "Ten Ways Our Lives Have Changed" that posits a new sense of American national connectedness. The purpose of this new social interconnection, he suggests, lies in a national rediscovery of the American warrior self. The anti-gun lobby has led those who adopted a defeatist embrace of submission that swept the country in recent decades. Bravery and honor are emerging from a broad popular rejection of submission, and the nation now takes its bearings from a new social compass based on absolute virtues. "We bury our dead with the sure and certain knowledge that great good, and great evil, do, in fact, exist, and that our measure as individuals and as a people will be where we stand in that epic battle."
To fine words like these, Jack London once answered, "[T]he magic of your phrases leads you to believe that you are patriotic. Your desire for profits, which is sheer selfishness, you metamorphose into altruistic solicitude for suffering humanity."
In this New America, which wakes each morning full of renewed patriotism, moral absolutism has disposed of relativism and self-questioning in a distant and dishonorable grave. What has triumphed is a national unity where social problems are no more than minor family problems, like a scramble for an extra piece of dessert. Deep-rooted historical social differences disappear in such an ideological scenario; instead, these differences are no more than an exuberant individualism that all share. In the end, "We are the warrior tribe who did the impossible — create an enduring government that celebrated, and continues to celebrate, our very contentious individualism."
This is the classic delusion of nationalism, the belief that a mystical nation-tribe has gathered its spirits to rise. In this delusion, racial, gender and class divisions happen only "occasionally," fairly ignoring the contradiction of Bane's simultaneous argument that the divisions created by submission have prevailed for years. So history-writing serves to mythify and unite, not to document, analyze, and explain. The function of the nation-state is to translate the warrior-spirit into an operations plan. Yet what Bane provides is a classic marketing device: make consumers feel happy about what you suggest they are becoming. Here is resurgent America, a nation-product worth fighting for — and here too are the tools with which to fight and partake of the warrior-spirit. This is a call to a revived faith in tribalism, one where a sharing of warrior-kin replaces petty social in-fighting. Or, as one writer phrases the necessary change, "We need to adopt the Israeli mindset that everyone is a partner in protecting the country."
Fear operates both as obstacle and enabler in this ideological scheme. Bane provided several articles for the Terrorism Survival Guide, and one of them addresses fear. He presents fear as another tactical tool, as an emotion whose correct management produces continuous situation evaluation reports and fluid responses. To qualify as fear, there must be a specific and immediately identifiable stimulus; a "formless" fear is mere intuition, he argues, forgetting the logic of inference. There has been a cultural over-use of fear and its language, Bane asserts, leading to an inability to distinguish real warning signals and detracting from threat-readiness.
The proliferation of fears, however, is endemic to a well-functioning capitalist economy. Fear is the marketing device for goods and services, and then at a social level, for the nation-product. The greatest fear and best marketing device is an assault on the American collectivity itself.
Towards Unlearning FearIn 1927, in the context of the Whitney free-speech case, Louis Brandeis wrote "Those who won our independence [knew] that fear breeds repression; that repression breeds hate; that hate menaces stable governmenté" What Brandeis distinguishes is the social cycle that the spread of public fear initiates, a cycle where oppressive government and violent opposition boil together in the same pot. Brandeis voices the classic Enlightenment fear of a state gone wrong, of government illiberality giving rise to hatred and street riots. Civil liberties were thus a venting mechanism, a means of ensuring that repression did not metamorphose into much worse consequences.
John Ashcroft's illiberality and vitiation of civil liberties, however, will create no street riots. Like the worst attorney general in U.S. history, A. Mitchell Palmer, Ashcroft emerges from a narrow-minded fear of the world's variety, a McGuffy-esque provincialism of neat picket fences and nineteenth-century American virtues. Although the mentalities of Palmer's Red Scare and Ashcroft's Moslem Scare are similar, the political landscape of the intervening eighty years has been revolutionized through the mass media and a global visual culture. Unlike the early twentieth century, where fears might inform state policy or market products, in late modernity fear has become a streamlined public-private commodity. What government announces, television news anchors interpret and expostulate.
In this media-driven economic regime, the consequences of social fear no longer lie primarily in an assault on civil liberties. The commodification and marketing of fear, fear-products, and nation-products has far outstripped the creation and defense of civil rights. America consumes its civil liberties, and consumption is its leading civil liberty.
An insidious ideology lies within this marketing and consumption of social fear, one that arises from a xenophobic variant of national identity politics. In this paranoia of threat-belief, all manifestations of difference become sources of risk. A world turns inward, into its fears, and shelters behind the luxurious walls of the U.S. economy, weapons pointed outward. Foreign policy has become a defense of this triumphal hegemonic identity and a demand for other nations to manifest their allegiance to such U.S. global primacy. An identity of national self-preservation emerges, one whose economic existence becomes preoccupied with hunting down existential threats and affixing "Wanted Dead or Alive" to threat sources. Ethnic identity politics goes onto a national war footing, one where the available identities have been stripped down to visible good and invisible evil. American self-identification with prosperity is the only good identity, and the only one that counts.
Walter Benn Michaels argues that capitalism supplies both objects of fear and desire, and the subjects to consume either. He writes "the logic of capitalism produces objects of desire only insofar as it produces subjects, since what makes the objects desirable is only the constitutive trace of subjectivity those objects bear." Today that American subjectivity characterizes itself through fear, and the objects of desire are those that purchase protection against fear. The Terrorism Survival Guide represents a stark synthesis of this transformation of fear into a simultaneous commodity and subjectivity, a synthesis whose ideological features are more easily visible for the magazine's extremism, which masquerades as commonsense self-defense. Such manichean extremism in the putative defense of freedom requires an over-the-horizon evil, one that resists critical thought and remains an irreducible evil that needs no explanation. Commodifications of fear ultimately rely on manipulation through nostrums and ignorance.
There is, though, a real front-line of homeland defense: teachers who refuse to mouth official dichotomies of good and evil, students who refuse to accept an uncritical perspective, and parents who refuse to barricade their homes against foreign ideas and people. A radical rejection of social alienage is at the heart of this homeland defense. It is an expanded concept of homeland defense which recognizes that contemporary American social fear derives ultimately from fear of the global poor and dispossessed, those with causes for anger. Western economies have privileged capital over labor, and have exported the social fears of capitalism — unemployment, impoverishment, inadequate health care and education — to obtain Western prosperity.
A homeland defense that refuses to recognize global fears and anger is no defense at all. Fear neither begins nor ends at the U.S. national borders: it was globalized long ago.
Joe Lockard is a Bad Subjects Collective editor and teaches English at University of California — Davis. He thanks Joel Schalit, Aaron Shuman, and Jonathan Sterne for comments.
Issue #59, February 2002
Created by geoff
Last modified 2004-10-05 10:06 PM
Copyright © 2002 by Joe Lockard. All rights reserved.
Joe Lockard
Don't Worry, Keep Rolling!The post-September 11 economy of the United States has become a fear-infested and sober landscape. National security and security-related corporations are providing the major visible economic growth. Corporate sectors without any discernable claim on security products nonetheless work to integrate a national security consciousness into their corporate images. Grim, determined, and upbeat patriotism is being used to sell any product that needs selling.
Ad campaigns experiment on how to function within this economic sobriety, as evidenced in those quite successful "Keep America Rolling" auto ads that General Motors rolled out. George Bush tells the country "Let's roll!" and revoices the words of an airline passenger who fought back, while at the same time echoing a General Motors logo. National security fears and durable goods, statesmanship and salesmanship, have been woven together by a fluid consumption-oriented language. To be behind the wheel is to control national fate in the face of international terrorism.
Corporations with central positions in the U.S. economy, like the airlines, have dealt with the situation by lining up for billions in federal support and stuffing "free market — no government interference" rhetorical claims in their back pockets. Since the function of capitalism is to protect capital, not labor, unemployed workers do not get generous Congressional handouts. Social expenditures go to alleviate corporate fears, but the fears of private citizens remain private business.
This fear-intensive economy elides a central truth of economic life: social fears are a constant source of profit. Without fear and insecurity, capitalism would not have the economic sanctions that make it profitable. Progressive politics since the nineteenth century have undertaken the task of alleviating social insecurity and replacing fear with social security, either with or absent first-letter capitalization. Post-'60s normative Western capitalism has continued to pursue the basic intellectual outline of Friedmanian economics, which emphasizes the market utility of holding down social expenditures and imposing sanctions on labor. A "liberalizing" IMF-oriented economy, as with those in eastern Europe and other regions, cuts back on pre-existing social protections in the name of economic efficiency and competition, thus raising the prevalence of social fear.
Yet if economic fear is a persuasive mode of social coercion, it can also function as a mode of consumption. Preventative consumption is a fear response that seeks to avoid the consequences of unpreparedness or inaction. Consumption itself becomes a defense against fears, rational or irrational. Since September 11, the spectre of Islamic terrorism has generated a market for products that can locate themselves within this conceptual framework of preventative consumption. A product's precise relation to the political phenomenon is irrelevant. Rather, marketability in the fear market relies on associative links. Risk, ever-present in the economic calculus, suddenly has an attributable face. Preventative consumption takes those social risks caused by foreign, alien hatreds, and reduces them into the manageable features of known products.
Fear itself has become a consumption item, and fear-dependent corporations feed off a public paranoia created by terror attacks. From health insurance to financial services ads that emphasize "security," the media has filled with appeals to prevent what is almost impossible to prevent and to do so through product consumption. Islamic terrorism has become an invisible brand name that joins disparate products anew. The fear of Allah-bonded men with death wishes and distant mullahs is the covert unmentionable that enables insurance companies and Florsheim Shoes to employ the Statue of Liberty as their new-old advertising flack, or Ralph Lauren to merge Polo shirts with the flag. All reaffirm freedom as consumer freedom. Images of American shrines and commercial invocations of "E Pluribus Unum" nationalize consumer purchasing power. To buy American is to meet the enemy.
As we buy on, we roll on.
Entrepreneurship of FearIt is the small-time profiteers of fear who speak messages that more socially restrained and polite major corporate advertising cannot voice directly. These are not the predictable Internet fraudsters who are hawking multivitamins against anthrax. Rather, outside the world of brand-name privilege and close to populist political roots, an entrepreneurship of fear has emerged to calm and consolidate fear as socially useful consumption activity. The small-time contractors who built backyard fallout shelters fifty years ago have their contemporary followers in bio-war rubber suit suppliers and survival school instructors.
Still, these are opportunists with a product or service, not ideological articulations in their own right. For that deeper level, the expensive and glossy Terrorism Survival Guide is a magazine that suits the times like the Whole Earth Catalog suited the '60s. Stocked with Ruger ads and shooting school addresses, it is the second number of an Operation Enduring Freedom series being published by Pantheon International. The cover features a crowd of subtitles, ranging from the informative "The Common Sense Guide to Staying Safe" to the alarming "Dangers We Face Now! What You Can Do to Meet the Threats!"
It is a home-front magazine, with men in white rubber suits and another subtitle reading "Anthrax and Bio-Terror: Facts vs. Fear! Reality vs. Rumor!" Beautiful Homes and Gardens goes to bio-war. The Terrorism Survival Guide reformulates economic activity as motivated survival; its pages map out how to consume to survive. Homeland security and household security have merged into one.
The Terrorism Survival Guide testifies eloquently to how fear, in itself, is a domestic commodity. Its extensive guns and survival book advertising rely on reader fear of social threats and general social chaos to promote sales. These are home safety products that render home as a place impregnable against fear of terrorism. In a couple of photographs, a middle-aged blonde woman displays home defense techniques. In one photograph of the new suburban hospitality, this well-prepared matron crouches to open the front door holding a pistol at the ready for any unexpected guest. Another posed photo has the same woman peering off a second-floor balcony, showing how to cover the front driveway with a sniper rifle. An article on post-September 11 child psychology features the graphic accompaniment of a full-page photo of a toothy little girl in a clear plastic gas mask with face mike, carrying a Barbie doll dressed up with another gas mask. The essays identify sources of fear, and the advertising provides home-front solutions.
If the home is a prime target that must be rendered defensible, the neighborhood is equally a vulnerable target. In this world of fresh domestic threat, explains one writer, the local infrastructure is a prime target. "For example, before all this craziness, you may not have noticed that vehicle parked inappropriately near the county electric station. Make note of it now and report it. Before September 11 you might not have thought twice about people acting strangely around the local reservoir. You had better think twice now." George Bush made these same sentiments sound presidential when he asked citizens to watch for people "acting suspiciously" around chemical plants.
Because the sources of supply into homes are at risk, homeowners need to prepare their regional lines of defense. There is an emphatic demand for explanation of the unknown, together with suspicion of those outside the norm or those who ask questions about the world. "Beware of anyone asking untoward questions regarding schedules, conveyance methods, social gatherings," advises Basic Anti-Terrorism Tip #3, followed by Tip #5's caution, "Be wary of individuals whose movements and actions are not logically motivated." Discrepant cultural logics, according to this hometown anti-terrorism philosophy, require fear, investigation, and action.
According to every essay and ad in this journal, the answer to these insecurities is: buy a gun! Although a gun will be useless in the face of the chemical, biological, and nuclear threats that the Terrorism Survival Guide details, poor logic never seems to burden the magazine editors. Rather, a firearm becomes a palpable defense even if it offers no protection. Buying a gun is simply the opposite of submission. The journal's editor, Michael Bane, frames this as a moral choice. "Like many Americans, I reached a moral and ethical crossroads after The Attack. I believe that although, in the real world, there are times when we must submit, as a culture and a nation, we have come to see submission as the preferred option."
In the Guide, a refusal to acknowledge a need to own personal weapons equates with capitulation and an acceptance of victimization. The notion that other means of self-defense may be more appropriate and effective never arises in this journal. Like so much else that passes for anti-terrorism self-defense here, personal firearms ownership represents no more than symbolic purchasing. That need for a physical symbol of resistance, a new Remington stashed under the bed as a defense against inchoate foreign threats, is the same operative social mechanism that moves consumers who buy durable goods as a response to terrorism. Panic buying is a crisis response to violence, a means of managing excess social fear. Social fear never lacks for profit opportunities.
Homeland InsecuritySince ideology provides the conditions of consumption, the articles of the Terrorism Survival Guide establish an ideology that redirects readers into security-oriented consumption. Michael Bane provides an article entitled "Ten Ways Our Lives Have Changed" that posits a new sense of American national connectedness. The purpose of this new social interconnection, he suggests, lies in a national rediscovery of the American warrior self. The anti-gun lobby has led those who adopted a defeatist embrace of submission that swept the country in recent decades. Bravery and honor are emerging from a broad popular rejection of submission, and the nation now takes its bearings from a new social compass based on absolute virtues. "We bury our dead with the sure and certain knowledge that great good, and great evil, do, in fact, exist, and that our measure as individuals and as a people will be where we stand in that epic battle."
To fine words like these, Jack London once answered, "[T]he magic of your phrases leads you to believe that you are patriotic. Your desire for profits, which is sheer selfishness, you metamorphose into altruistic solicitude for suffering humanity."
In this New America, which wakes each morning full of renewed patriotism, moral absolutism has disposed of relativism and self-questioning in a distant and dishonorable grave. What has triumphed is a national unity where social problems are no more than minor family problems, like a scramble for an extra piece of dessert. Deep-rooted historical social differences disappear in such an ideological scenario; instead, these differences are no more than an exuberant individualism that all share. In the end, "We are the warrior tribe who did the impossible — create an enduring government that celebrated, and continues to celebrate, our very contentious individualism."
This is the classic delusion of nationalism, the belief that a mystical nation-tribe has gathered its spirits to rise. In this delusion, racial, gender and class divisions happen only "occasionally," fairly ignoring the contradiction of Bane's simultaneous argument that the divisions created by submission have prevailed for years. So history-writing serves to mythify and unite, not to document, analyze, and explain. The function of the nation-state is to translate the warrior-spirit into an operations plan. Yet what Bane provides is a classic marketing device: make consumers feel happy about what you suggest they are becoming. Here is resurgent America, a nation-product worth fighting for — and here too are the tools with which to fight and partake of the warrior-spirit. This is a call to a revived faith in tribalism, one where a sharing of warrior-kin replaces petty social in-fighting. Or, as one writer phrases the necessary change, "We need to adopt the Israeli mindset that everyone is a partner in protecting the country."
Fear operates both as obstacle and enabler in this ideological scheme. Bane provided several articles for the Terrorism Survival Guide, and one of them addresses fear. He presents fear as another tactical tool, as an emotion whose correct management produces continuous situation evaluation reports and fluid responses. To qualify as fear, there must be a specific and immediately identifiable stimulus; a "formless" fear is mere intuition, he argues, forgetting the logic of inference. There has been a cultural over-use of fear and its language, Bane asserts, leading to an inability to distinguish real warning signals and detracting from threat-readiness.
The proliferation of fears, however, is endemic to a well-functioning capitalist economy. Fear is the marketing device for goods and services, and then at a social level, for the nation-product. The greatest fear and best marketing device is an assault on the American collectivity itself.
Towards Unlearning FearIn 1927, in the context of the Whitney free-speech case, Louis Brandeis wrote "Those who won our independence [knew] that fear breeds repression; that repression breeds hate; that hate menaces stable governmenté" What Brandeis distinguishes is the social cycle that the spread of public fear initiates, a cycle where oppressive government and violent opposition boil together in the same pot. Brandeis voices the classic Enlightenment fear of a state gone wrong, of government illiberality giving rise to hatred and street riots. Civil liberties were thus a venting mechanism, a means of ensuring that repression did not metamorphose into much worse consequences.
John Ashcroft's illiberality and vitiation of civil liberties, however, will create no street riots. Like the worst attorney general in U.S. history, A. Mitchell Palmer, Ashcroft emerges from a narrow-minded fear of the world's variety, a McGuffy-esque provincialism of neat picket fences and nineteenth-century American virtues. Although the mentalities of Palmer's Red Scare and Ashcroft's Moslem Scare are similar, the political landscape of the intervening eighty years has been revolutionized through the mass media and a global visual culture. Unlike the early twentieth century, where fears might inform state policy or market products, in late modernity fear has become a streamlined public-private commodity. What government announces, television news anchors interpret and expostulate.
In this media-driven economic regime, the consequences of social fear no longer lie primarily in an assault on civil liberties. The commodification and marketing of fear, fear-products, and nation-products has far outstripped the creation and defense of civil rights. America consumes its civil liberties, and consumption is its leading civil liberty.
An insidious ideology lies within this marketing and consumption of social fear, one that arises from a xenophobic variant of national identity politics. In this paranoia of threat-belief, all manifestations of difference become sources of risk. A world turns inward, into its fears, and shelters behind the luxurious walls of the U.S. economy, weapons pointed outward. Foreign policy has become a defense of this triumphal hegemonic identity and a demand for other nations to manifest their allegiance to such U.S. global primacy. An identity of national self-preservation emerges, one whose economic existence becomes preoccupied with hunting down existential threats and affixing "Wanted Dead or Alive" to threat sources. Ethnic identity politics goes onto a national war footing, one where the available identities have been stripped down to visible good and invisible evil. American self-identification with prosperity is the only good identity, and the only one that counts.
Walter Benn Michaels argues that capitalism supplies both objects of fear and desire, and the subjects to consume either. He writes "the logic of capitalism produces objects of desire only insofar as it produces subjects, since what makes the objects desirable is only the constitutive trace of subjectivity those objects bear." Today that American subjectivity characterizes itself through fear, and the objects of desire are those that purchase protection against fear. The Terrorism Survival Guide represents a stark synthesis of this transformation of fear into a simultaneous commodity and subjectivity, a synthesis whose ideological features are more easily visible for the magazine's extremism, which masquerades as commonsense self-defense. Such manichean extremism in the putative defense of freedom requires an over-the-horizon evil, one that resists critical thought and remains an irreducible evil that needs no explanation. Commodifications of fear ultimately rely on manipulation through nostrums and ignorance.
There is, though, a real front-line of homeland defense: teachers who refuse to mouth official dichotomies of good and evil, students who refuse to accept an uncritical perspective, and parents who refuse to barricade their homes against foreign ideas and people. A radical rejection of social alienage is at the heart of this homeland defense. It is an expanded concept of homeland defense which recognizes that contemporary American social fear derives ultimately from fear of the global poor and dispossessed, those with causes for anger. Western economies have privileged capital over labor, and have exported the social fears of capitalism — unemployment, impoverishment, inadequate health care and education — to obtain Western prosperity.
A homeland defense that refuses to recognize global fears and anger is no defense at all. Fear neither begins nor ends at the U.S. national borders: it was globalized long ago.
Joe Lockard is a Bad Subjects Collective editor and teaches English at University of California — Davis. He thanks Joel Schalit, Aaron Shuman, and Jonathan Sterne for comments.
Issue #59, February 2002
Created by geoff
Last modified 2004-10-05 10:06 PM
Copyright © 2002 by Joe Lockard. All rights reserved.
Friday, March 16, 2007
The Last Days of Constitutional Rule?
March 16, 2007
By Paul Craig Roberts
The Bush administration's greatest success is its ability to escape accountability for its numerous impeachable offenses.
The administration's offenses against US law, the US Constitution, civil liberties, human rights, and the Geneva Conventions, its lies to Congress and the American people, its vote-rigging scandals, its sweetheart no-bid contracts to favored firms, its political firing of Republican US Attorneys, its practice of kidnapping and torturing people in foreign hellholes, and its persecution of whistle blowers are altogether so vast that it is a major undertaking just to list them all.
Bush admits that he violated the Foreign Intelligence Surveillance Act and spied on US citizens without warrants, a felony under the Act. Bush has shown total disrespect for civil liberty and the Constitution and has suffered rebukes from the Supreme Count. The evidence is overwhelming that the Bush administration manufactured false "intelligence" to justify military aggression against Iraq. The Halliburton contract scandals are notorious, as is the use of electronic voting machines programmed to miscount the actual vote.
The chief-of-staff to Vice President Cheney has been convicted for obstructing justice in the outing of a covert CIA officer. Proof of torture is overwhelming, and the Bush administration has even had the temerity to have permissive legislation passed after the fact that permits it to continue to torture "detainees." The Sibel Edmonds and other whistle blower cases are well known. The Senate Judiciary Committee has just issued subpoenas to Justice (sic) Dept. officials involved in the scandalous removal of US Attorneys who refused to be politicized.
Yet the Democrats have taken impeachment "off the table." Many Democrats and Republicans and a great many Christians can contemplate illegal military aggression against Iran, but not the impeachment of the greatest criminal administration in US history. Far from being scandalized by what the entire world views as an unjust invasion and occupation of Iraq by the US, leading Democratic and Republican candidates for the 2008 presidential nomination rushed to inform the Israel Lobby, AIPAC, that they, if elected, will keep US troops in Iraq.
The previous occupant of the White House could not escape being impeached by the House of Representatives for lying about a consensual Oval Office sexual affair. President Nixon and his vice president, a saintly pair compared to Bush-Cheney, were both driven from office for offenses that are inconsequential by comparison. Liberals branded Ronald Reagan the "Teflon President," but the neoconservatives' Iran-Contra scandal was a mere dress rehearsal for their machinations in the Bush regime.
What explains Bush-Cheney invulnerability to accountability?
Perhaps the answer is that Bush has desensitized us. Like kids desensitized to violence by violent video games and movies and pornography addicts desensitized to sex, we have become desensitized by the avalanche of Bush-Cheney crimes, lies, and disdain for Congress, courts, and public opinion.
Our elected representatives, if not the American people, now regard as normal such heinous actions as war crimes, the rape of the Constitution, self-serving use of government office, and the constant stream of lies and propaganda from the highest offices of the executive branch.
Perhaps that is what disillusioned foreigners, who once looked with hope to America, mean when they say that America does not exist anymore.
If the notion has departed that the highest political offices in the land are supposed to be occupied by people who are honest and faithful to their oath to the Constitution, then we are far advanced on the road to tyranny.
In future history books, will Bush-Cheney mark the transition of the United States from constitutional rule to the unaccountable rule of the unitary executive who cancels out Congress with signing statements and silences critics with the police state means that are now part of the US legal code?
By Paul Craig Roberts
The Bush administration's greatest success is its ability to escape accountability for its numerous impeachable offenses.
The administration's offenses against US law, the US Constitution, civil liberties, human rights, and the Geneva Conventions, its lies to Congress and the American people, its vote-rigging scandals, its sweetheart no-bid contracts to favored firms, its political firing of Republican US Attorneys, its practice of kidnapping and torturing people in foreign hellholes, and its persecution of whistle blowers are altogether so vast that it is a major undertaking just to list them all.
Bush admits that he violated the Foreign Intelligence Surveillance Act and spied on US citizens without warrants, a felony under the Act. Bush has shown total disrespect for civil liberty and the Constitution and has suffered rebukes from the Supreme Count. The evidence is overwhelming that the Bush administration manufactured false "intelligence" to justify military aggression against Iraq. The Halliburton contract scandals are notorious, as is the use of electronic voting machines programmed to miscount the actual vote.
The chief-of-staff to Vice President Cheney has been convicted for obstructing justice in the outing of a covert CIA officer. Proof of torture is overwhelming, and the Bush administration has even had the temerity to have permissive legislation passed after the fact that permits it to continue to torture "detainees." The Sibel Edmonds and other whistle blower cases are well known. The Senate Judiciary Committee has just issued subpoenas to Justice (sic) Dept. officials involved in the scandalous removal of US Attorneys who refused to be politicized.
Yet the Democrats have taken impeachment "off the table." Many Democrats and Republicans and a great many Christians can contemplate illegal military aggression against Iran, but not the impeachment of the greatest criminal administration in US history. Far from being scandalized by what the entire world views as an unjust invasion and occupation of Iraq by the US, leading Democratic and Republican candidates for the 2008 presidential nomination rushed to inform the Israel Lobby, AIPAC, that they, if elected, will keep US troops in Iraq.
The previous occupant of the White House could not escape being impeached by the House of Representatives for lying about a consensual Oval Office sexual affair. President Nixon and his vice president, a saintly pair compared to Bush-Cheney, were both driven from office for offenses that are inconsequential by comparison. Liberals branded Ronald Reagan the "Teflon President," but the neoconservatives' Iran-Contra scandal was a mere dress rehearsal for their machinations in the Bush regime.
What explains Bush-Cheney invulnerability to accountability?
Perhaps the answer is that Bush has desensitized us. Like kids desensitized to violence by violent video games and movies and pornography addicts desensitized to sex, we have become desensitized by the avalanche of Bush-Cheney crimes, lies, and disdain for Congress, courts, and public opinion.
Our elected representatives, if not the American people, now regard as normal such heinous actions as war crimes, the rape of the Constitution, self-serving use of government office, and the constant stream of lies and propaganda from the highest offices of the executive branch.
Perhaps that is what disillusioned foreigners, who once looked with hope to America, mean when they say that America does not exist anymore.
If the notion has departed that the highest political offices in the land are supposed to be occupied by people who are honest and faithful to their oath to the Constitution, then we are far advanced on the road to tyranny.
In future history books, will Bush-Cheney mark the transition of the United States from constitutional rule to the unaccountable rule of the unitary executive who cancels out Congress with signing statements and silences critics with the police state means that are now part of the US legal code?
The Last Days of Constitutional Rule?
March 16, 2007
By Paul Craig Roberts
The Bush administration's greatest success is its ability to escape accountability for its numerous impeachable offenses.
The administration's offenses against US law, the US Constitution, civil liberties, human rights, and the Geneva Conventions, its lies to Congress and the American people, its vote-rigging scandals, its sweetheart no-bid contracts to favored firms, its political firing of Republican US Attorneys, its practice of kidnapping and torturing people in foreign hellholes, and its persecution of whistle blowers are altogether so vast that it is a major undertaking just to list them all.
Bush admits that he violated the Foreign Intelligence Surveillance Act and spied on US citizens without warrants, a felony under the Act. Bush has shown total disrespect for civil liberty and the Constitution and has suffered rebukes from the Supreme Count. The evidence is overwhelming that the Bush administration manufactured false "intelligence" to justify military aggression against Iraq. The Halliburton contract scandals are notorious, as is the use of electronic voting machines programmed to miscount the actual vote.
The chief-of-staff to Vice President Cheney has been convicted for obstructing justice in the outing of a covert CIA officer. Proof of torture is overwhelming, and the Bush administration has even had the temerity to have permissive legislation passed after the fact that permits it to continue to torture "detainees." The Sibel Edmonds and other whistle blower cases are well known. The Senate Judiciary Committee has just issued subpoenas to Justice (sic) Dept. officials involved in the scandalous removal of US Attorneys who refused to be politicized.
Yet the Democrats have taken impeachment "off the table." Many Democrats and Republicans and a great many Christians can contemplate illegal military aggression against Iran, but not the impeachment of the greatest criminal administration in US history. Far from being scandalized by what the entire world views as an unjust invasion and occupation of Iraq by the US, leading Democratic and Republican candidates for the 2008 presidential nomination rushed to inform the Israel Lobby, AIPAC, that they, if elected, will keep US troops in Iraq.
The previous occupant of the White House could not escape being impeached by the House of Representatives for lying about a consensual Oval Office sexual affair. President Nixon and his vice president, a saintly pair compared to Bush-Cheney, were both driven from office for offenses that are inconsequential by comparison. Liberals branded Ronald Reagan the "Teflon President," but the neoconservatives' Iran-Contra scandal was a mere dress rehearsal for their machinations in the Bush regime.
What explains Bush-Cheney invulnerability to accountability?
Perhaps the answer is that Bush has desensitized us. Like kids desensitized to violence by violent video games and movies and pornography addicts desensitized to sex, we have become desensitized by the avalanche of Bush-Cheney crimes, lies, and disdain for Congress, courts, and public opinion.
Our elected representatives, if not the American people, now regard as normal such heinous actions as war crimes, the rape of the Constitution, self-serving use of government office, and the constant stream of lies and propaganda from the highest offices of the executive branch.
Perhaps that is what disillusioned foreigners, who once looked with hope to America, mean when they say that America does not exist anymore.
If the notion has departed that the highest political offices in the land are supposed to be occupied by people who are honest and faithful to their oath to the Constitution, then we are far advanced on the road to tyranny.
In future history books, will Bush-Cheney mark the transition of the United States from constitutional rule to the unaccountable rule of the unitary executive who cancels out Congress with signing statements and silences critics with the police state means that are now part of the US legal code?
By Paul Craig Roberts
The Bush administration's greatest success is its ability to escape accountability for its numerous impeachable offenses.
The administration's offenses against US law, the US Constitution, civil liberties, human rights, and the Geneva Conventions, its lies to Congress and the American people, its vote-rigging scandals, its sweetheart no-bid contracts to favored firms, its political firing of Republican US Attorneys, its practice of kidnapping and torturing people in foreign hellholes, and its persecution of whistle blowers are altogether so vast that it is a major undertaking just to list them all.
Bush admits that he violated the Foreign Intelligence Surveillance Act and spied on US citizens without warrants, a felony under the Act. Bush has shown total disrespect for civil liberty and the Constitution and has suffered rebukes from the Supreme Count. The evidence is overwhelming that the Bush administration manufactured false "intelligence" to justify military aggression against Iraq. The Halliburton contract scandals are notorious, as is the use of electronic voting machines programmed to miscount the actual vote.
The chief-of-staff to Vice President Cheney has been convicted for obstructing justice in the outing of a covert CIA officer. Proof of torture is overwhelming, and the Bush administration has even had the temerity to have permissive legislation passed after the fact that permits it to continue to torture "detainees." The Sibel Edmonds and other whistle blower cases are well known. The Senate Judiciary Committee has just issued subpoenas to Justice (sic) Dept. officials involved in the scandalous removal of US Attorneys who refused to be politicized.
Yet the Democrats have taken impeachment "off the table." Many Democrats and Republicans and a great many Christians can contemplate illegal military aggression against Iran, but not the impeachment of the greatest criminal administration in US history. Far from being scandalized by what the entire world views as an unjust invasion and occupation of Iraq by the US, leading Democratic and Republican candidates for the 2008 presidential nomination rushed to inform the Israel Lobby, AIPAC, that they, if elected, will keep US troops in Iraq.
The previous occupant of the White House could not escape being impeached by the House of Representatives for lying about a consensual Oval Office sexual affair. President Nixon and his vice president, a saintly pair compared to Bush-Cheney, were both driven from office for offenses that are inconsequential by comparison. Liberals branded Ronald Reagan the "Teflon President," but the neoconservatives' Iran-Contra scandal was a mere dress rehearsal for their machinations in the Bush regime.
What explains Bush-Cheney invulnerability to accountability?
Perhaps the answer is that Bush has desensitized us. Like kids desensitized to violence by violent video games and movies and pornography addicts desensitized to sex, we have become desensitized by the avalanche of Bush-Cheney crimes, lies, and disdain for Congress, courts, and public opinion.
Our elected representatives, if not the American people, now regard as normal such heinous actions as war crimes, the rape of the Constitution, self-serving use of government office, and the constant stream of lies and propaganda from the highest offices of the executive branch.
Perhaps that is what disillusioned foreigners, who once looked with hope to America, mean when they say that America does not exist anymore.
If the notion has departed that the highest political offices in the land are supposed to be occupied by people who are honest and faithful to their oath to the Constitution, then we are far advanced on the road to tyranny.
In future history books, will Bush-Cheney mark the transition of the United States from constitutional rule to the unaccountable rule of the unitary executive who cancels out Congress with signing statements and silences critics with the police state means that are now part of the US legal code?
Friday, March 9, 2007
Homeland 'Security' Back in the 'Vast Privacy Violations' Business
Homeland Security revives supersnoop
By Audrey Hudson
THE WASHINGTON TIMES
Published March 8, 2007
Homeland Security officials are testing a supersnoop computer system that sifts through personal information on U.S. citizens to detect possible terrorist attacks, prompting concerns from lawmakers who have called for investigations.
The system uses the same data-mining process that was developed by the Pentagon's Total Information Awareness (TIA) project that was banned by Congress in 2003 because of vast privacy violations.
A Government Accountability Office (GAO) investigation of the project called ADVISE -- Analysis, Dissemination, Visualization, Insight and Semantic Enhancement -- was requested by Rep. David R. Obey, Wisconsin Democrat and chairman of the House Appropriations Committee.
The investigation focuses on whether the program violates privacy laws, and the findings will be released after completion of the Iraq war supplemental spending bill, possibly as early as this week, a panel aide said.
The ADVISE and TIA data-mining projects rely on personal data to track individual behavior and consumer transactions to develop computer algorithms that create a pattern that some behavioral scientists say can predict terrorist behavior.
Data can include credit-card purchases, telephone or Internet details, medical records, travel and banking information.
Privacy concerns prompted lawmakers on both sides of the aisle to introduce legislation in January to require that government agencies disclose data-mining practices in regular reports to Congress.
"A serious discussion on the implications of data-mining programs is long overdue," Sen. Russ Feingold, Wisconsin Democrat and a sponsor of the bill, said yesterday. Sen. John E. Sununu, New Hampshire Republican, is also a bill sponsor.
"Many Americans are understandably concerned about the idea of secret government programs analyzing their personal information. Congress needs to know more about the operational aspects and privacy implications of data-mining programs before these programs are allowed to go forward," Mr. Feingold said.
A spokesman for the Department of Homeland Security did not return a call for comment.
Congress also tucked language inside Homeland Security's spending bill in September requiring an investigation by the agency's inspector general, but allowed $40 million in funding to go forward in this year's budget.
"The ADVISE program is designed to extract relationships and correlations from large amounts of data to produce actionable intelligence on terrorists," the spending bill said. "A prototype is currently available to analysts in Intelligence and Analysis using departmental and other data, including some on U.S. citizens."
According to a Congressional Research Service (CRS) report in March 2003, TIA planned "to use data mining technologies to sift through personal transactions in electronic data to find patterns and associations connected to terrorist threats and activities."
"Recent increased awareness about the existence of the TIA project provoked expressions of concern about the potential for the invasion of privacy of law-abiding citizens by the government, and about the direction of the project by John Poindexter, a central figure in the Iran-Contra affair," the CRS report said.
"While the law enforcement and intelligence communities argue that more sophisticated information gathering techniques are essential to combat today's sophisticated terrorists, civil libertarians worry that the government's increased capability to assemble information will result in increased and unchecked government power, and the erosion of individual privacy," the report said.
ADVISE was initiated in 2003 following the demise of the TIA project.
The new system includes data-mining tools to digest "massive quantities of information from many different sources" to find "hidden relationships in the data," according to a 2004 report by Sandia National Laboratories and Lawrence Livermore National Laboratory on a Homeland Security workshop that outlined this and other technology under development.
The technology is expected to analyze more than 3 million "relationships" or connections per hour, says the report, which included an example of how friends, family members, locations and workplaces can be linked by pinging the data.
By Audrey Hudson
THE WASHINGTON TIMES
Published March 8, 2007
Homeland Security officials are testing a supersnoop computer system that sifts through personal information on U.S. citizens to detect possible terrorist attacks, prompting concerns from lawmakers who have called for investigations.
The system uses the same data-mining process that was developed by the Pentagon's Total Information Awareness (TIA) project that was banned by Congress in 2003 because of vast privacy violations.
A Government Accountability Office (GAO) investigation of the project called ADVISE -- Analysis, Dissemination, Visualization, Insight and Semantic Enhancement -- was requested by Rep. David R. Obey, Wisconsin Democrat and chairman of the House Appropriations Committee.
The investigation focuses on whether the program violates privacy laws, and the findings will be released after completion of the Iraq war supplemental spending bill, possibly as early as this week, a panel aide said.
The ADVISE and TIA data-mining projects rely on personal data to track individual behavior and consumer transactions to develop computer algorithms that create a pattern that some behavioral scientists say can predict terrorist behavior.
Data can include credit-card purchases, telephone or Internet details, medical records, travel and banking information.
Privacy concerns prompted lawmakers on both sides of the aisle to introduce legislation in January to require that government agencies disclose data-mining practices in regular reports to Congress.
"A serious discussion on the implications of data-mining programs is long overdue," Sen. Russ Feingold, Wisconsin Democrat and a sponsor of the bill, said yesterday. Sen. John E. Sununu, New Hampshire Republican, is also a bill sponsor.
"Many Americans are understandably concerned about the idea of secret government programs analyzing their personal information. Congress needs to know more about the operational aspects and privacy implications of data-mining programs before these programs are allowed to go forward," Mr. Feingold said.
A spokesman for the Department of Homeland Security did not return a call for comment.
Congress also tucked language inside Homeland Security's spending bill in September requiring an investigation by the agency's inspector general, but allowed $40 million in funding to go forward in this year's budget.
"The ADVISE program is designed to extract relationships and correlations from large amounts of data to produce actionable intelligence on terrorists," the spending bill said. "A prototype is currently available to analysts in Intelligence and Analysis using departmental and other data, including some on U.S. citizens."
According to a Congressional Research Service (CRS) report in March 2003, TIA planned "to use data mining technologies to sift through personal transactions in electronic data to find patterns and associations connected to terrorist threats and activities."
"Recent increased awareness about the existence of the TIA project provoked expressions of concern about the potential for the invasion of privacy of law-abiding citizens by the government, and about the direction of the project by John Poindexter, a central figure in the Iran-Contra affair," the CRS report said.
"While the law enforcement and intelligence communities argue that more sophisticated information gathering techniques are essential to combat today's sophisticated terrorists, civil libertarians worry that the government's increased capability to assemble information will result in increased and unchecked government power, and the erosion of individual privacy," the report said.
ADVISE was initiated in 2003 following the demise of the TIA project.
The new system includes data-mining tools to digest "massive quantities of information from many different sources" to find "hidden relationships in the data," according to a 2004 report by Sandia National Laboratories and Lawrence Livermore National Laboratory on a Homeland Security workshop that outlined this and other technology under development.
The technology is expected to analyze more than 3 million "relationships" or connections per hour, says the report, which included an example of how friends, family members, locations and workplaces can be linked by pinging the data.
Monday, March 5, 2007
Habeas corpus: It's not just a Latin phrase. It's at the core of who we are - or should be in a nation governed by law, not whim
Columns
By ROBYN BLUMNER
Published March 4, 2007
John Yoo, a former Justice Department apparatchik and an engineer of the Bush administration's post-9/11 dismantling of civil liberties, co-wrote a memo in December 2001. It essentially assured Defense Department higher-ups that prisoners held at a camp in Guantanamo Bay, Cuba, would not have access to American courts. The next month, so-called "enemy combatants" started to be transferred to Guantanamo with the idea that the men it held would be out of reach of any semblance of due process.
More than five years later, a disastrous ruling by a federal appellate court has given Yoo exactly what he and his bosses wanted. The U.S. Court of Appeals for the D.C. Circuit has slammed the courthouse door to the hundreds of prisoners in Guantanamo, putting them in permanent legal purgatory.
In a 2-to-1 ruling, the court said that foreign-born prisoners held by the United States in a camp that is 90 miles off Florida's coast are stripped of their rights of habeas corpus. Congress asked for that result when it passed the abominable Military Commissions Act and the court has upheld its constitutionality.
So what if mistakes were made and innocents were imprisoned or if abuse occurred? The courts are closed.
This is a damnable thing for a good country to do.
The writ of habeas corpus is an ancient English legal principle that gives prisoners the right to claim their detention is illegal. The right is a moral imperative, so important that the Constitution's authors included it as one of the few civil liberties in the body of the document.
Article I Section 9 instructs that Congress shall not suspend habeas corpus except "in cases of rebellion or invasion."
As you can see, the Constitution does not say anything about who should enjoy this right. It is not expressly limited to American citizens, as are other rights listed in the Constitution, such as voting. And there are no territorial limits to the reach of habeas corpus articulated in the text.
Yet, in 1950, the U.S. Supreme Court suggested that non-Americans held by the U.S. offshore can be denied those rights.
There is no valid justification for such a gaping loophole. It invites mischief of those inclined to make it. And 50 years later we have an administration so inclined. One with no regard for our centuries-old standards of fairness and decency.
The fact that none of approximately 775 foreign-born prisoners who have come through Guantanamo ever landed on U.S. soil was by design. Guantanamo was to be an American prison without law and the only way to do that was to exploit the loophole. Basic human rights were defeated just by landing planes a little to our south.
To the administration's good fortune, the D.C. Circuit bought its argument that our military base in Guantanamo is not effectively American territory. But in truth, it is. We acquired this 45 square miles that makes up Guantanamo in a 1903 lease agreement, the wording of which grants Cuba "ultimate sovereignty" but gives the United States "complete jurisdiction and control." Then, in 1934, a treaty put the lease into perpetuity. As long as we remained there, the lease couldn't be abrogated.
Since 1962, Cuban President Fidel Castro has refused to acknowledge the legitimacy of the lease, or cash the $4,000 check we send him annually. Castro has called the base "a knife stuck in the heart of Cuba's dignity and sovereignty." Guantanamo is occupied territory.
The U.S. Supreme Court will undoubtedly review the circuit court's ruling. In doing so, it will have to decide whether Guantanamo is a truly an American-created no man's land or if our nation's principles are more indelible.
But to truly understand the depths of hostility the administration has for the habeas right, one need only look at comments by Attorney General Alberto Gonzales. In a recent Senate Judiciary Committee oversight hearing, Gonzales said: "There is no expressed grant of habeas in the Constitution." He was suggesting that habeas corpus is not an individual right, since the words of the Constitution are directed at limiting what Congress can do.
Of course if that were true, then the First Amendment which states that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof ... ," would also lose its status as an individual right.
Gonzales' assertion demonstrates either his withering ignorance of established law or his utter contempt for habeas corpus.
Thomas Jefferson said of habeas corpus that it is part of "the creed of our political faith" and "should we wander from (it) in moments of error or alarm, let us hasten to retrace our steps and to regain the road which alone leads to peace, liberty and safety."
I only hope that the Supreme Court understands the timeless truth in these words.
[Last modified March 4, 2007, 01:27:58]
By ROBYN BLUMNER
Published March 4, 2007
John Yoo, a former Justice Department apparatchik and an engineer of the Bush administration's post-9/11 dismantling of civil liberties, co-wrote a memo in December 2001. It essentially assured Defense Department higher-ups that prisoners held at a camp in Guantanamo Bay, Cuba, would not have access to American courts. The next month, so-called "enemy combatants" started to be transferred to Guantanamo with the idea that the men it held would be out of reach of any semblance of due process.
More than five years later, a disastrous ruling by a federal appellate court has given Yoo exactly what he and his bosses wanted. The U.S. Court of Appeals for the D.C. Circuit has slammed the courthouse door to the hundreds of prisoners in Guantanamo, putting them in permanent legal purgatory.
In a 2-to-1 ruling, the court said that foreign-born prisoners held by the United States in a camp that is 90 miles off Florida's coast are stripped of their rights of habeas corpus. Congress asked for that result when it passed the abominable Military Commissions Act and the court has upheld its constitutionality.
So what if mistakes were made and innocents were imprisoned or if abuse occurred? The courts are closed.
This is a damnable thing for a good country to do.
The writ of habeas corpus is an ancient English legal principle that gives prisoners the right to claim their detention is illegal. The right is a moral imperative, so important that the Constitution's authors included it as one of the few civil liberties in the body of the document.
Article I Section 9 instructs that Congress shall not suspend habeas corpus except "in cases of rebellion or invasion."
As you can see, the Constitution does not say anything about who should enjoy this right. It is not expressly limited to American citizens, as are other rights listed in the Constitution, such as voting. And there are no territorial limits to the reach of habeas corpus articulated in the text.
Yet, in 1950, the U.S. Supreme Court suggested that non-Americans held by the U.S. offshore can be denied those rights.
There is no valid justification for such a gaping loophole. It invites mischief of those inclined to make it. And 50 years later we have an administration so inclined. One with no regard for our centuries-old standards of fairness and decency.
The fact that none of approximately 775 foreign-born prisoners who have come through Guantanamo ever landed on U.S. soil was by design. Guantanamo was to be an American prison without law and the only way to do that was to exploit the loophole. Basic human rights were defeated just by landing planes a little to our south.
To the administration's good fortune, the D.C. Circuit bought its argument that our military base in Guantanamo is not effectively American territory. But in truth, it is. We acquired this 45 square miles that makes up Guantanamo in a 1903 lease agreement, the wording of which grants Cuba "ultimate sovereignty" but gives the United States "complete jurisdiction and control." Then, in 1934, a treaty put the lease into perpetuity. As long as we remained there, the lease couldn't be abrogated.
Since 1962, Cuban President Fidel Castro has refused to acknowledge the legitimacy of the lease, or cash the $4,000 check we send him annually. Castro has called the base "a knife stuck in the heart of Cuba's dignity and sovereignty." Guantanamo is occupied territory.
The U.S. Supreme Court will undoubtedly review the circuit court's ruling. In doing so, it will have to decide whether Guantanamo is a truly an American-created no man's land or if our nation's principles are more indelible.
But to truly understand the depths of hostility the administration has for the habeas right, one need only look at comments by Attorney General Alberto Gonzales. In a recent Senate Judiciary Committee oversight hearing, Gonzales said: "There is no expressed grant of habeas in the Constitution." He was suggesting that habeas corpus is not an individual right, since the words of the Constitution are directed at limiting what Congress can do.
Of course if that were true, then the First Amendment which states that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof ... ," would also lose its status as an individual right.
Gonzales' assertion demonstrates either his withering ignorance of established law or his utter contempt for habeas corpus.
Thomas Jefferson said of habeas corpus that it is part of "the creed of our political faith" and "should we wander from (it) in moments of error or alarm, let us hasten to retrace our steps and to regain the road which alone leads to peace, liberty and safety."
I only hope that the Supreme Court understands the timeless truth in these words.
[Last modified March 4, 2007, 01:27:58]
Saturday, March 3, 2007
NATIONAL I.D. AND INTERNAL PASSPORT PLAN UNVEILED
National ID Card Rules Unveiled
By Ryan Singel
14:00 PM Mar, 01, 2007
Homeland Security officials released long-delayed guidelines that turn state-issued identification cards into de facto internal passports Thursday, estimating the changes will cost states and individuals $23 billion over 10 years.
The move prompted a new round of protest from civil libertarians and security experts, who called on Congress to repeal the 2005 law known as the Real ID Act that mandates the changes.
Critics, such as American Civil Liberties Union attorney Tim Sparapani, charge that the bill increases government access to data on Americans and amplifies the risk of identity theft, without providing significant security benefits.
"Real ID creates the largest single database about U.S. people that has ever been created," Sparapani said. "This is the people who brought you long lines at the DMV marrying the people at DHS who brought us Katrina. It's a marriage we need to break up."
Homeland Security officials point to the 9/11 hijackers' ability to get driver's licenses in Virginia using false information as justification for the sweeping changes.
"Raising the security standards on driver's licenses establishes another layer of protection to prevent terrorists from obtaining and using fake documents to plan or carry out an attack," Homeland Security Secretary Michael Chertoff said in a press release.
The 162 pages of proposed rules (.pdf) require:
Applicants must present a valid passport, certified birth certificate, green card or other valid visa documents to get a license and states must check all other states' databases to ensure the person doesn't have a license from another state.
States must use a card stock that glows under ultraviolet light, and check digits, hologramlike images and secret markers.
Identity documents must expire before eight years and must include legal name, date of birth, gender, digital photo, home address and a signature. States can propose ways to let judges, police officers and victims of domestic violence keep their addresses off the cards. There are no religious exemptions for veils or scarves for photos.
States must keep copies of all documents, such as birth certificates, Social Security cards and utility bills, for seven to 10 years.
However, many difficult questions, such as how state databases will be linked or how homeless people can get identity documents, were left unanswered by the proposed rules. Citizens of states that don't abide by the guidelines will not be able to enter federal courthouses or use their identity cards to board a commercial flight.
Sophia Cope, a staff attorney at the centrist Center for Democracy and Technology, says the rules only mention privacy once.
"The Real ID Act does not include language that lets DHS prescribe privacy requirements, so there are no privacy regulations related to exchange of personal information between the states, none about skimming of the data on the magnetic stripe, and no limits on use of information by the feds," Cope said.
The Real ID Act, slipped into an emergency federal funding bill without hearings, originally required states to begin issuing the ID documents by May 2008. The proposed rules allow states to ask for an extension until Jan. 1, 2010.
Cope wants Congress to step in and rewrite the rules. The ACLU and Jim Harper, a libertarian policy analyst at the Cato Institute who specializes in identity and homeland security issues, agree.
"With five-plus years behind us, now is the time to be looking at what works and what doesn't work," Harper said. "Students of identification know that a national ID does not help with security."
Maine has already declared it will not follow the rules, and other states are close to joining that rebellion. In Congress, a bipartisan coalition is forming around bills that would repeal portions of the Real ID Act, but it is unclear if today's rules will slow or accelerate these efforts.
By Ryan Singel
14:00 PM Mar, 01, 2007
Homeland Security officials released long-delayed guidelines that turn state-issued identification cards into de facto internal passports Thursday, estimating the changes will cost states and individuals $23 billion over 10 years.
The move prompted a new round of protest from civil libertarians and security experts, who called on Congress to repeal the 2005 law known as the Real ID Act that mandates the changes.
Critics, such as American Civil Liberties Union attorney Tim Sparapani, charge that the bill increases government access to data on Americans and amplifies the risk of identity theft, without providing significant security benefits.
"Real ID creates the largest single database about U.S. people that has ever been created," Sparapani said. "This is the people who brought you long lines at the DMV marrying the people at DHS who brought us Katrina. It's a marriage we need to break up."
Homeland Security officials point to the 9/11 hijackers' ability to get driver's licenses in Virginia using false information as justification for the sweeping changes.
"Raising the security standards on driver's licenses establishes another layer of protection to prevent terrorists from obtaining and using fake documents to plan or carry out an attack," Homeland Security Secretary Michael Chertoff said in a press release.
The 162 pages of proposed rules (.pdf) require:
Applicants must present a valid passport, certified birth certificate, green card or other valid visa documents to get a license and states must check all other states' databases to ensure the person doesn't have a license from another state.
States must use a card stock that glows under ultraviolet light, and check digits, hologramlike images and secret markers.
Identity documents must expire before eight years and must include legal name, date of birth, gender, digital photo, home address and a signature. States can propose ways to let judges, police officers and victims of domestic violence keep their addresses off the cards. There are no religious exemptions for veils or scarves for photos.
States must keep copies of all documents, such as birth certificates, Social Security cards and utility bills, for seven to 10 years.
However, many difficult questions, such as how state databases will be linked or how homeless people can get identity documents, were left unanswered by the proposed rules. Citizens of states that don't abide by the guidelines will not be able to enter federal courthouses or use their identity cards to board a commercial flight.
Sophia Cope, a staff attorney at the centrist Center for Democracy and Technology, says the rules only mention privacy once.
"The Real ID Act does not include language that lets DHS prescribe privacy requirements, so there are no privacy regulations related to exchange of personal information between the states, none about skimming of the data on the magnetic stripe, and no limits on use of information by the feds," Cope said.
The Real ID Act, slipped into an emergency federal funding bill without hearings, originally required states to begin issuing the ID documents by May 2008. The proposed rules allow states to ask for an extension until Jan. 1, 2010.
Cope wants Congress to step in and rewrite the rules. The ACLU and Jim Harper, a libertarian policy analyst at the Cato Institute who specializes in identity and homeland security issues, agree.
"With five-plus years behind us, now is the time to be looking at what works and what doesn't work," Harper said. "Students of identification know that a national ID does not help with security."
Maine has already declared it will not follow the rules, and other states are close to joining that rebellion. In Congress, a bipartisan coalition is forming around bills that would repeal portions of the Real ID Act, but it is unclear if today's rules will slow or accelerate these efforts.
Wednesday, February 28, 2007
Rule of law crippled
Editor's note: I am moving over to post at the other blog(also see new articles below).
---
By Bruce Fein
THE WASHINGTON TIMES
Published February 27, 2007
The Great Writ of habeas corpus is to the rule of law what oxygen is to life.
The U.S. Court of Appeals imprudently crippled the writ last week in Lakhdar Boumediene v. Bush (Feb. 20). A divided three-judge panel declared suspected alien enemy combatants held indefinitely at Guantanamo Bay may not question their detentions in federal courts though petitions for writs of habeas corpus under the Military Commissions Act of 2006 (MCA). Writing for a 2-1 majority, Judge Raymond Randolph mistakenly endorsed a cramped interpretation of habeas corpus as though he were addressing a tax exemption in the Internal Revenue Code.
Absolute power corrupts absolutely. Accordingly, the Great Writ prevents the president from disappearing political opponents or the unpopular into dungeons based on his say-so alone, a frightening power that has earmarked despots from time immemorial. The writ enables detainees to require the president to establish the factual and legal foundations for their detentions before an independent judiciary.
The goal is justice, the end of civil society as James Madison explained in the Federalist Papers. The president may be inclined to detain bogus enemy combatants in the war against global terrorism to inflate public fear and to justify executive aggrandizements, for example, spying without judicial or legislative oversight in contravention of the Foreign Intelligence Surveillance Act of 1978. A former commandant and deputy commandant at Guantanamo Bay have averred that most of its detainees do not belong there.
The Great Writ does not threaten to release a single genuine enemy combatant. The burden to defeat the Great Writ is modest: plausible evidence (far short of proof beyond a reasonable doubt) that the detainee was implicated in active hostilities against the United States. In Rasul v. Bush (2004), the Supreme Court held the federal habeas corpus statute extended to aliens at Guantanamo. Two years later, Congress overruled Rasul in the MCA by suspending the Great Writ for alien enemy combatants detained anywhere. Its proponents were unable to cite a single habeas case either before or after Rasul that precipitated the release of an authentic terrorist. Such a case might be hypothesized with a fevered enough imagination. But the law would become "a ass, a idiot," in the words of Charles Dickens' Mr. Bumble, if required to answer jumbo speculations that never happen in the real world.
Article I, section 9, clause 2 of the Constitution (Suspension Clause) declares "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless in Cases of Rebellion or Invasion the public Safety may require it." Judge Randolph tacitly acknowledged in Boumediene that neither habeas exception justified the MCA, i.e., global terrorists have not invaded America. He insisted, however, that the Great Writ has no application to aliens detained outside the sovereignty of the United States; and, that Guantanamo Bay is under the sovereignty of Cuba, albeit subject to a perpetual United States lease.
The latter observation is risible. Fidel Castro has no more access or control over Guantanamo than he does over Washington, D.C., or Des Moines. If Mr. Castro formally abandoned sovereignty over Guantanamo tomorrow, nothing would change.
Judge Randolph maintained that a declaration by the political branches in the MCA that Guantanamo is not part of the United States is conclusive on the courts. But the dimensions of the Great Writ -- which defines what we are as a people -- should not be so easily contracted by semantic jugglery.
Judge Randolph observed that historically the Great Writ in Great Britain was withheld from remote islands, garrisons and dominions. Compliance with a writ from overseas would have been impractical because of time limitations for producing the detainee. But as Chief Justice John Marshall taught in McCulloch v. Maryland (1819), the Constitution was designed to endure for the ages and to be construed accordingly to achieve its purposes. Congress is empowered to create an Air Force, although the Constitution speaks only of armies and navies. The Fourth Amendment protects against indiscriminate government interceptions of e-mails and conversations, although its language speaks only of persons, houses, papers and effects. Similarly, the Great Writ should apply to suspected alien enemy combatants detained abroad unless compliance would be impractical or unworkable.
No civilized Constitution risks injustice for the sake of injustice, aside from the folly of creating poster children to boost al Qaeda's recruitments. The Supreme Court should grant review of Boumediene and reverse the appeals court.
Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein & Associates and the Lichfield Group.
---
By Bruce Fein
THE WASHINGTON TIMES
Published February 27, 2007
The Great Writ of habeas corpus is to the rule of law what oxygen is to life.
The U.S. Court of Appeals imprudently crippled the writ last week in Lakhdar Boumediene v. Bush (Feb. 20). A divided three-judge panel declared suspected alien enemy combatants held indefinitely at Guantanamo Bay may not question their detentions in federal courts though petitions for writs of habeas corpus under the Military Commissions Act of 2006 (MCA). Writing for a 2-1 majority, Judge Raymond Randolph mistakenly endorsed a cramped interpretation of habeas corpus as though he were addressing a tax exemption in the Internal Revenue Code.
Absolute power corrupts absolutely. Accordingly, the Great Writ prevents the president from disappearing political opponents or the unpopular into dungeons based on his say-so alone, a frightening power that has earmarked despots from time immemorial. The writ enables detainees to require the president to establish the factual and legal foundations for their detentions before an independent judiciary.
The goal is justice, the end of civil society as James Madison explained in the Federalist Papers. The president may be inclined to detain bogus enemy combatants in the war against global terrorism to inflate public fear and to justify executive aggrandizements, for example, spying without judicial or legislative oversight in contravention of the Foreign Intelligence Surveillance Act of 1978. A former commandant and deputy commandant at Guantanamo Bay have averred that most of its detainees do not belong there.
The Great Writ does not threaten to release a single genuine enemy combatant. The burden to defeat the Great Writ is modest: plausible evidence (far short of proof beyond a reasonable doubt) that the detainee was implicated in active hostilities against the United States. In Rasul v. Bush (2004), the Supreme Court held the federal habeas corpus statute extended to aliens at Guantanamo. Two years later, Congress overruled Rasul in the MCA by suspending the Great Writ for alien enemy combatants detained anywhere. Its proponents were unable to cite a single habeas case either before or after Rasul that precipitated the release of an authentic terrorist. Such a case might be hypothesized with a fevered enough imagination. But the law would become "a ass, a idiot," in the words of Charles Dickens' Mr. Bumble, if required to answer jumbo speculations that never happen in the real world.
Article I, section 9, clause 2 of the Constitution (Suspension Clause) declares "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless in Cases of Rebellion or Invasion the public Safety may require it." Judge Randolph tacitly acknowledged in Boumediene that neither habeas exception justified the MCA, i.e., global terrorists have not invaded America. He insisted, however, that the Great Writ has no application to aliens detained outside the sovereignty of the United States; and, that Guantanamo Bay is under the sovereignty of Cuba, albeit subject to a perpetual United States lease.
The latter observation is risible. Fidel Castro has no more access or control over Guantanamo than he does over Washington, D.C., or Des Moines. If Mr. Castro formally abandoned sovereignty over Guantanamo tomorrow, nothing would change.
Judge Randolph maintained that a declaration by the political branches in the MCA that Guantanamo is not part of the United States is conclusive on the courts. But the dimensions of the Great Writ -- which defines what we are as a people -- should not be so easily contracted by semantic jugglery.
Judge Randolph observed that historically the Great Writ in Great Britain was withheld from remote islands, garrisons and dominions. Compliance with a writ from overseas would have been impractical because of time limitations for producing the detainee. But as Chief Justice John Marshall taught in McCulloch v. Maryland (1819), the Constitution was designed to endure for the ages and to be construed accordingly to achieve its purposes. Congress is empowered to create an Air Force, although the Constitution speaks only of armies and navies. The Fourth Amendment protects against indiscriminate government interceptions of e-mails and conversations, although its language speaks only of persons, houses, papers and effects. Similarly, the Great Writ should apply to suspected alien enemy combatants detained abroad unless compliance would be impractical or unworkable.
No civilized Constitution risks injustice for the sake of injustice, aside from the folly of creating poster children to boost al Qaeda's recruitments. The Supreme Court should grant review of Boumediene and reverse the appeals court.
Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein & Associates and the Lichfield Group.
Erosion of civil liberties continues
| EDITORIAL |
| Issue Date: March 3, 2007 Secret prisons and prisoners held without charge or due process are certain signs that a country lives under lawless authoritarianism and not the rule of law. Such behavior was a hallmark of the old Soviet empire, one of the fundamental differences, if you will, between us and them. It was one of the distinctives in places like Argentina and Brazil during their decades of civil war, of Pinochet’s Chile, of Sukarno’s Indonesia, of Syngman Rhee’s South Korea. It was part of the vicious right -- wing rule in El Salvador and Guatemala before the 1990s peace accords in those countries. That basic respect for an individual’s liberty -- the right to a day in court as protection against illegal imprisonment -- is enshrined in the Constitution. Article I, Section Nine of that document states: “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.” Granted, the United States and its legal system, imperfect as it may sometimes be, are a far cry from the countries listed above. Yet a slow drip has been falling at the foundation of our treasured liberties, even as we mouth words such as liberty and freedom as justification for war. The erosion of the foundation accelerated Feb. 20 when, in a 2-1 ruling, the U.S. Court of Appeals for the District of Columbia, dismissed legal claims brought on behalf of hundreds of prisoners incarcerated at Guantánamo Bay, Cuba, without charge. They seek their day in U.S. court to ask why they are being held and to hear the evidence against them. The Bush administration, whose first try at suspending habeas corpus, (Latin for “bring forth the body”) was overturned by the Supreme Court three years ago, declared the latest ruling a victory. We hope it is a short-lived victory on the way to another setback in the Supreme Court. In the 2004 Supreme Court ruling, the justices, by a 6-3 vote, ruled that the right of habeas corpus applied to all people, regardless of location. The Bush administration then went back to the Republican-controlled Congress and was successful in getting the Military Commissions Act passed, a law that states explicitly that enemy combatants held outside the United States do not have a right to seek redress in U.S. courts. Lawyers for the detainees have promised to challenge the most recent ruling. In an online commentary following the recent federal court decision, John W. Whitehead of the Rutherford Institute wrote: “The right of habeas corpus was so important to the fathers of our Constitution because they knew from personal experience what it was like to be labeled enemy combatants, imprisoned indefinitely and not given the opportunity to appear before a neutral judge. Believing that such arbitrary imprisonment is ‘in all ages, the favorite and most formidable instrument of tyranny,’ the founders were all the more determined to protect Americans from such government abuses.” The question now is: Can America be perceived as a model of justice and the rule of law if such a fundamental right is denied to those who are in our custody simply because they are outside the actual bounds of the United States? If the federal court’s view is allowed to stand, the United States could conceivably hold anyone, in any of its detention centers (and we’ve learned that secret prisons around the globe are used) for years, indefinitely, if the military deems someone a threat to national security. No charges and no appearance before a judge required. The contortions necessary to sustain such reasoning had Judge Raymond Randolph writing, in the decision: “Cuba -- not the United States -- has sovereignty over Guantánamo Bay.” The Bush administration’s position might be easier to understand, while still being unacceptable, if there were greater reason to believe that humans rights are not being grossly violated at Guantánamo and elsewhere, especially in those instances where the administration has approved unspecified “harsh” interrogation measures. Whitehead noted, for instance, that only 8 percent of the detainees at Guantánamo are characterized as al-Qaeda fighters. “Many of the prisoners insist they have no link to al-Qaeda or other extreme Islamist groups,” a claim he said is supported by documents provided by the U.S. military. Further, he writes, “only 5 percent of the detainees were captured by American forces; according to the BBC, 86 percent of them were actually captured by bounty hunters and handed over in exchange for sizable financial rewards.” Approximately 395 prisoners are now held at Guantánamo. According to the Pentagon, about 80 will be put on trial before military tribunals and another 85 are scheduled to be released. The rest, some 230, apparently will await the outcome of any appeals. Two approaches exist to restore civil liberties and to show the world that terrorists have not yet forced us to compromise the rule of law. The first is for Congress, now controlled by Democrats, to undo portions of the Military Commissions Act so that anyone in American custody will be assured a day in court. While Bush might veto the bill, it will send a signal that the people and their representatives have regained their balance. Barring speedy action by the Congress, the Supreme Court should agree to hear the cases as soon as possible rather require the normal process. The foundation is in need of some quick repair. |
Sunday, February 25, 2007
Eight Percent Isn’t Good Enough
“Terrorism” dragnets, under the current Bush Administration and during the 1919-20 “red scare,” have always resulted in the large-scale detention and abuse of innocents.
By Thomas R. Eddlem, Contributing Writer
The scene is a familiar one.
We see the establishment Republican senator from South Dakota railing against critics of the federal government’s “war on terror.” The critics, an odd coalition of liberal Democrats and arch-conservative Republicans, including some members of the Senate Judiciary Committee, charge that a great many detainees are innocent, had been apprehended without warrant, were not been given a trial, and are held unnecessarily in legal limbo for long periods of time.
Reciting a familiar argument, the Dakota solon insists that Americans shouldn’t quibble about the rights of foreigners during a time of war, especially when the administration’s policy has obviously worked: “Your committee cannot say but that the policy thus adopted and carried out was an effectual one. Subsequent events and conditions might very well indicate that it was effectual.”
Indeed, the senator can correctly point out that no terrorist incidents have taken place in the United States for nearly three years, since the September attack on lower Manhattan in New York City.
The debate we're witnessing took place not in the early years of the 21st Century, but rather in 1923. The stalwart defender of that era's homeland security state was Senator Thomas Nelson (R-S.D.), who pointed out that in the years 1918-1920 the United States had suffered a wave of more than 100 Bolshevik-inspired bombings across major cities of the United States.
Some of those attacks targeted Attorney General Alexander Mitchell Palmer (whose front porch was demolished by a Bolshevik bomb), Supreme Court justices and other judges, and prominent Wall Street bankers. This unprecedented terrorist campaign climaxed in that era's Black September atrocity: The September 16, 1920 explosion of a car bomb (a horse-drawn buggy packed with more than 100 pounds of dynamite) on Wall Street that killed 33 and wounded more than 300. Although much smaller in scale than 9-11, 9/16 was still at that time the worst terrorist incident of its kind in the nation’s history.
Nelson's ire was provoked by a draft committee report by liberal Democratic Senator Thomas J. Walsh of Montana that criticized the Justice Department’s Bureau of Investigation (The FBI predecessor headed at the time by the 24-year-old J. Edgar Hoover) for imprisoning some 10,000 detainees within the United States without trial, and in most cases, without the warrant required under federal law.
Walsh’s report won the support of an odd coalition that included the conservative “irreconcilable” Senator William Borah (R- Idaho), notable for his role in opposing the League of Nations; progressive Republican George Norris of Nebraska, an outspoken opponent of US entry into World War I; and the fickle fellow liberal Democrat Henry Fountain Ashurst of Arizona. Nelson submitted his own substitute report, but neither side won a majority on the Senate Judiciary Committee, and the committee failed to issue a report after months of hearings and political wrangling thereafter.
Walsh charged in his report: “In the more or less hysterical state of mind that prevailed when the raids were in progress and which to some extent still persists, it was popularly believed that all those taken were of that class – that they were all ‘red.’”
This prefigures the Bush administration's refrain – echoed tirelessly by its media minions – that those scooped up and detained at Guantanamo and Abu Ghraib were the “worst of the worst” and thus were not entitled to procedural rights of any kind. But those perceptions were – and are – mistaken.
On the surface, it would seem unlikely that the federal government would round up and imprison a large number of innocent people. Why wouldn’t all or most of them be guilty? What motivation would the government have to lock up the innocent?
The long experience of Anglo-American common law has demonstrated that without warrants, which require “probable cause” (a more than 50 percent chance a crime has been committed or will be committed by a person) and sworn statements, law enforcement and military officials typically round up anyone they think might be a terrorist. And that means they pick up a lot of people who are by definition “probably not” criminals.
Like any bureaucrat, police typically only hear complaints from their superiors when they accidentally let a criminal go. Outside of nations sharing the Anglo-Saxon common law heritage, police hardly ever get criticism from superiors for taking no chances that a criminal escapes, even if it means picking up innocent people in the dragnet.
Law enforcement and military authorities are taught to be “safe,” which doesn’t mean protecting the innocent who happen to be found in the proximity to the guilty. In many cases, as we will see, detainees at Guantanamo had been captured by opportunists seeking to collect bounties from occupation authorities – and the occupiers were more concerned with captive head counts than discriminating between genuine terrorists and innocent bystanders.
In 1919-20, as in the current “war on terror,” the inadequacy or absence of arrest warrants, coupled with the fact that the foreigners detained did not have habeas corpus or trial rights, left the innocent aliens in prison with the guilty for long periods of time.
In 1919-20, J. Edgar Hoover’s special agents rounded up everyone remotely connected with the communist meetings in progress.
In Detroit, Hoover’s men struck a blow for law and order by detaining everyone at an immigrant Russian baking school that communists were trying to organize into a communist-style cooperative -- even the restaurant’s patrons and members of a traveling orchestra who had been hired that evening to play for patrons.
Eight percent “success”
The overwhelming majority of those apprehended and detained in 1919-20 were innocent and released without charges or deportation. The original “war on terrorism” produced mass arrests of approximately 10,000 suspected communist terrorists, most of them coming during two dragnet-style “raids” November 1, 1919 and January 2, 1920 in 33 cities across the United States.
In all, not more than 810 of the 10,000 arrested in 1919-20 were ever deported or faced criminal charges. That’s a detention “success” rate of eight percent, which is hardly compatible with the “probable” cause requirement for arrest warrants specified by the U.S. Constitution.
The legal toll on the innocent in the original 1919-20 “war on terror” was onerous, as Walsh’s report documented:
*Ignatz Maritzka was detained for 88 days before being released. He was never charged nor deported.
*Sam Kot was detained for 90 days and never charged with a crime or deported.
*Ivan Dudinsky, who also was never charged or deported, developed tuberculosis during his 101 days of detention before his release.
*Wasil Lalajo had an initial hearing two days after his arrest on November 7, 1919, during which the two special agents reviewing his case strongly recommended his immediate release. But while they waited for permission from their bumbling superiors in the bureaucracy, Lalajo spent a total of 162 days in jail. During the more than five months he spent in legal limbo, later congressional hearings revealed, Lalajos's “wife and children were ... reported to be destitute and suffering.”
Granted, Hoover definitely got some communist bomb-throwers in the raids, but in the process he nearly ruined the lives of many innocents and their families. It is reasonable to say that many more innocent people were terrorized by the Hoover-supervised raids than by the terrorist bombings themselves. And the raids inflicted similar damage to our nation's constitutional system.
After describing the abuses of power committed in the raids – lack of warrants, lack of required specificity in warrants that were issued, lack of legal representation for detainees -- Walsh concluded: “Some vague notion seems to have prevailed that none of the constitutional gurantees of liberty are available to aliens in deportation proceedings.... Arrest without warrant appears to have been an innovation inaugurated by the Department of Justice.”
As the French say, Plus ça change, plus la même chose. Too many Americans today are hostage to the same delusion about the guilt of foreign detainees in our “war on terror.” And our rulers have done their best to propagate that delusion whenever an opportunity arises.
Speaking of the prisoners at Gitmo, Secretary of Defense Donald Rumsfeld told a radio interviewer on June 27, 2005 that “these are people all of whom were captured on a battlefield. They're terrorists, trainers, bomb makers, recruiters, financiers, [Osama bin Ladin’s] body guards, would-be suicide bombers, probably the 20th hijacker, 9/11 hijacker.”
That’s true only if by “all” one means only seven percent. According to a study by Seton Hall Law School Professor Mark Denbeaux, just seven percent of the more than 500 detainees who have been imprisoned at Guantanamo Bay were apprehended on a battlefield by U.S. or coalition forces. The rest were picked up by Pakistani or foreign government officials, or by bounty hunters promised vast sums of wealth for turning people in. Denbeaux relied exclusively upon intelligence released by the U.S. Defense Department for his statistical conclusions.
Eight percent again!
More importantly, Denbeaux found that only eight percent of those imprisoned at Guantanamo Bay were ever accused of being “fighters” for al Qaeda or the Taliban. That’s precisely the same rate as those charged or deported under the post-World War I “Red Scare” war on terror!
Like the “Red Scare,” the United States has released about half of the more than 500 people who have been detained at Guantanamo. And like the Red Scare, the Associated Press reported on December 16 most of those released by the U.S. government were freed without charges. The AP study found that 205 out of 245 Guantanamo detainees they were able to track were released into the custody of foreign governments and either freed immediately or acquitted of all charges at trial. The remaining 40 had trials ongoing or were detained without trial. Fewer than 20 of the approximately 300 prisoners currently at Guantanamo face charges in U.S. courts or military commission hearings right now.
Despite all the similarities between the “Red Scare” and the current “war on terror,” there are some important differences. The well-documented indignities and torture heaped upon current detainees by Bush Administration policy make the conditions experienced by detainees in 1920 look like four-star lodging. (And ironically enough, those outrages were cataloged by the FBI, the same agency responsible for the abuses committed in the first American “war on terror.”)
In both cases, most of the actual terrorists were immigrants. But while the federal government focused it’s dragnet in 1920 exclusively upon foreigners, that’s not the case today. The Bush Administration has rounded up innocent American citizens such as Donald Vance and is building an enormous database of telephone calls made by Americans. Moreover, the “red raids,” as they were called at the time, were designed to be temporary. President Bush has all but announced surveillance of American citizens – and the detention of some – will continue indefinitely, like the war on terror itself.
Clearly, it's time for Americans to rise up against the Bush Administration’s unconstitutional depredations. The facts have come out about the “war on terror” dragnet, which has destroyed our freedom in a way that no terrorist could ever accomplish.
Back in the days of the “Red Scare,” the New York World published an editorial that is probably the best retort to the claim that Americans must surrender their liberties for the duration of the war on terror. The August 6, 1921 editorial read: “It is only in such times that the guaranties of the Constitution as to personal rights are of any practical value. In seasons of calm no one thinks of denying them; they are accorded as a matter of course. It is rare except when the public mind is stirred by some overwhelming catastrophe or is aghast at some hideous crime or otherwise overwrought, that one is required to appeal to his constitutional rights. If, in such times, the Constitution is not a shield, the encomiums which states, man and jurists have paid it are fustian” -- which is to say, empty, bombastic, and hypocritical talk.
Then as now, fustian rhetoric was intended to serve as a smokescreen concealing a Faustian bargain in which Americans would sell their soul and heritage of liberty for deceptive promises of security.
Thomas R. Eddlem is a radio talk show host in Southeastern Massachusetts and freelance writer. He has been published in more than 20 periodicals, including The Providence Journal, LewRockwell.com and AntiWar.com
Monday, February 19, 2007
NY Times Editorial: Making Martial Law Easier
Editorial
A disturbing recent phenomenon in Washington is that laws that strike to the heart of American democracy have been passed in the dead of night. So it was with a provision quietly tucked into the enormous defense budget bill at the Bush administration’s behest that makes it easier for a president to override local control of law enforcement and declare martial law.
The provision, signed into law in October, weakens two obscure but important bulwarks of liberty. One is the doctrine that bars military forces, including a federalized National Guard, from engaging in law enforcement. Called posse comitatus, it was enshrined in law after the Civil War to preserve the line between civil government and the military. The other is the Insurrection Act of 1807, which provides the major exemptions to posse comitatus. It essentially limits a president’s use of the military in law enforcement to putting down lawlessness, insurrection and rebellion, where a state is violating federal law or depriving people of constitutional rights.
The newly enacted provisions upset this careful balance. They shift the focus from making sure that federal laws are enforced to restoring public order. Beyond cases of actual insurrection, the president may now use military troops as a domestic police force in response to a natural disaster, a disease outbreak, terrorist attack or to any “other condition.”
Thursday, February 8, 2007
Act Now to Restore Due Process
Urge Your Senators to Fix the Military Commissions Act
Just before the last election, Congress passed the Military Commissions Act, which gives the President the power to decide by himself who is and who is not an enemy of our country, and to eliminate habeas corpus and due process rights for detainees. As a result, people lost the Constitution’s protections against being imprisoned unlawfully.
The Military Commissions Act takes away the fundamental due process right of habeas corpus, which is protected by the Constitution. Without the habeas corpus protection against unlawful imprisonment, people are being held for years without ever being charged.
Take action below to restore habeas corpus protections and due process for detainees in federal custody at Guantanamo and around the world.--MORE--
Tuesday, February 6, 2007
U.S. Policy on Palestine a Local Issue
Viewpoint
In his column, Farooq Tirmizi claimed that “Students for Justice in Palestine Misses the Point” (THE HOYA, Jan. 30, 2007, A3). One thing that Mr. Tirmizi’s criticism makes clear is that he is uninformed about the nature of SJP at Georgetown and about the movement at large around the country.
Students for Justice in Palestine is not a religious or ethnically based group. Georgetown’s SJP has members from diverse ethnic and religious backgrounds, both Muslim and non-Muslim, Palestinian and non-Palestinian. I have been an active member of the group for two and a half years, and I am neither Muslim nor Arab. The mission of SJP is to promote human rights, adherence to international law and basic justice in dealings with the Palestinian people.
Tirmizi seems to argue that Muslims in the United States should engage in politics and civic life in their role as citizens of that country. Personal faith will always inform one’s convictions and beliefs about what is just, but faith is not a political platform. The decisions about whether American Muslims should concentrate their civic efforts on domestic or foreign policy issues is one the community must make for itself, and not an area in which I as a non-Muslim American or Mr. Tirmizi as a non-American Muslim really have a place to speak.
Furthermore, it would be inaccurate to say that Muslims in the United States do not spend a great deal of energy advocating for domestic policy issues. The Council on American-Islamic Relations, a civil liberties advocacy group, promotes action on a host of domestic issues, including immigration reform, civil liberties for Muslims living in the United States and providing citizen-law education.
Recently, CAIR highlighted racially motivated violence against three Palestinian students by three American students at Guilford College in Greensboro, N.C. Encountering and countering racism in the United States is a fundamentally domestic issue in which all Americans should be engaged.
While I agree with Mr. Tirmizi’s assertion that different peoples should resolve their own problems and conflicts, my interest in the Palestinian issue has to do with its place on the U.S. foreign policy agenda and the role the United States has played and continues to play in the conflict. It is not my place to dictate how the Palestinians should organize their national government or react in the face of occupation. But it is my place as an American citizen to tell my government that I do not think it should be providing military and diplomatic aid to Israel, a nation I believe to be responsible for human rights abuses against Palestinians.
It is my civic duty to raise the awareness of my fellow citizens and tell them that — despite the State Department’s annual human rights report criticizing the actions of the Israeli occupation — the Israelis continue to construct illegal settlements on Palestinian land in the West Bank with the assistance of loan guarantees of the American people.
Such settlement construction is an injustice done in our name with our money. The nature of our democracy is one in which all citizens are ultimately responsible for the policies of their government. If we are silent about that which we can speak out against, then we are complicit in the government’s misdeeds.
Human rights abuses happen throughout the world. Sometimes the actions of the U.S. government give invaluable support to national struggles for justice and self-determination, but at other times they are not so helpful. When people criticize activism about Palestine in the United States, I think about the brave American activists in the 1980s — many of them veterans of the civil rights movement in this country — who insisted that the U.S. government stop its support for the South African apartheid government. Brave activists, including students on Georgetown’s campus, stood up and insisted that U.S. trade and aid policy stand on the side of human rights and justice.
There are many civic issues which deserve our attention as Americans, and no citizen should be criticized for the desire to hold his or her government accountable for its foreign and domestic policies.
Victoria Zyp is a graduate student at the Center for Contemporary Arab Studies and a member of Students for Justice in Palestine.
Saturday, February 3, 2007
Still No Habeas Rights for You
consortiumnews.com
Despite assurances from the major U.S. news media that American citizens retain their habeas corpus rights to a fair trial – even if non-citizens don’t – Justice Department lawyers have reasserted their claim that George W. Bush has the power to lock up anyone he chooses as an “enemy combatant” and effectively throw away the key.
“A citizen, no less than an alien, can be an enemy combatant,” administration lawyer David B. Salmons told a federal appeals court in Richmond, Virginia, on Feb. 1, adding that on such issues, the courts cannot interfere with the President’s wartime judgments.
Salmons did pledge that the Executive Branch will use care in deciding who is designated an “enemy combatant.” In response to one judge’s question about the President applying the tag to an activist from the People for the Ethical Treatment of Animals, Salmons joked, “the representative of PETA can sleep well at night.”
Nevertheless, Salmons argued that the judgment on who is deemed an “enemy combatant” is solely the discretion of President Bush. [NYT, Feb. 2, 2007]
Salmons presented his arguments in the case of Ali al-Marri, a citizen of Qatar who was arrested in Peoria, Illinois, in 2001 while studying on a student visa. The administration asserted that Marri was an al-Qaeda “sleeper cell” agent, declared him an “enemy combatant” and locked him up at a Navy brig in South Carolina.
Marri has challenged his indefinite detention through a federal court suit. However, Bush’s lawyers are citing the Military Commissions Act of 2006, which was passed in the final weeks of the Republican-controlled Congress and denies “unlawful enemy combatants” access to civilian courts.
After Bush signed the law on Oct. 17, 2006, the New York Times criticized the law’s denial of fundamental rights to non-citizens but assured U.S. citizens that the draconian system did not affect them.
“This law does not apply to American citizens,” the Times editorial stated, “but it does apply to other legal United States residents. And it chips away at the foundations of the judicial system in ways that all Americans should find threatening.” [NYT, Oct. 19, 2006]
Yet, while the Times is correct that the law explicitly denies habeas corpus and other rights to non-citizens, other sections of the law seem to apply to U.S. citizens as well, putting citizens inside the same tribunal system with resident aliens and foreigners.
“Any person is punishable as a principal under this chapter who commits an offense punishable by this chapter, or aids, abets, counsels, commands, or procures its commission,” according to the law.
Another clause states that “Any person subject to this chapter who, in breach of an allegiance or duty to the United States, knowingly and intentionally aids an enemy of the United States ... shall be punished as a military commission … may direct.”
Who has “an allegiance or duty to the United States” if not an American citizen? That provision would not presumably apply to Osama bin Laden or al-Qaeda, nor would it apply generally to foreign citizens. This section of the law appears to be singling out American citizens.
Court-Stripping
Besides allowing for “any person” to go into Bush’s tribunal system, the law prohibits detainees once inside the system from appealing to the traditional American courts until a defendant is fully prosecuted and sentenced, which could translate into an indefinite imprisonment since there are no timetables for Bush’s tribunal process to play out.
The law states that once a person is detained, “no court, justice, or judge shall have jurisdiction to hear or consider any claim or cause of action whatsoever … relating to the prosecution, trial, or judgment of a military commission under this chapter, including challenges to the lawfulness of procedures of military commissions.”
That court-stripping provision – barring “any claim or cause of action whatsoever” – would seem to deny American citizens habeas corpus rights just as it does for non-citizens. If a person can’t file a motion with a court, he can’t assert any constitutional rights, including habeas corpus.
Other constitutional protections in the Bill of Rights – such as a speedy trial, the right to reasonable bail and the ban on “cruel and unusual punishment” – would seem to be beyond an American detainee’s reach as well.
Though the New York Times believes the new law “chips away at the foundations of the judicial system,” the law actually seems to obliterate the old judicial system, especially if Bush were to apply the designation “enemy combatant” to large numbers of Americans.
Attorney Salmons contended that Bush is not interested in taking such a step at this point. But what might Bush do if, for instance, he expands the war in the Middle East and his actions are met with widespread civil disturbances? Could American citizens challenging the President’s war policies be deemed “enemy combatants” and detained?
Under the Bush administration’s theories – and the language of the Military Commissions Act – U.S. citizens presumably could be locked up along with non-citizens due to the catch-all provisions about aiding “an enemy of the United States.”
At the Marri hearing, Bush's lawyers appear to have been caught a bit off guard by the aggressive questioning from two of the three judges on the appeals court panel.
The two judges who asked probing questions – Roger L. Gregory and Diana Gribbon Motz – were appointed by President Bill Clinton. The third judge, Henry Hudson, was named to the bench by President George W. Bush.
In the random selection of the judges, Bush might have encountered some bad luck because the Richmond appeals court is heavily dominated by Republican appointees and tends to churn out opinions favorable to Bush’s positions.
However, even if a majority of the three-judge panel rules against Bush, the Justice Department could ask the full appeals court to reverse the ruling.
No ‘Unalienable Rights’
The department’s arguments in the Marri case are the latest evidence of the Bush administration’s disdain for the concept of “unalienable rights” as enunciated by the Founders in the U.S. Constitution and the Bill of Rights.
As explained by administration’s lawyers, Bush’s view is that for the duration of the “war on terror,” the Commander in Chief can exercise his “plenary” – or unlimited – powers. That means in effect that he can waive laws that he dislikes and ignore constitutional rights that get in his way.
Also, since the “war on terror” will go on indefinitely and since the “battlefield” is everywhere, Bush is asserting the President’s right to do whatever he wants to whomever he wants wherever the person might be, virtually forever.
The administration’s contempt for habeas corpus and other fundamental rights was reflected again in a strange colloquy between Attorney General Alberto Gonzales and Sen. Arlen Specter during a Senate Judiciary Committee hearing on Jan. 18.
Gonzales argued that the Constitution doesn’t explicitly bestow habeas corpus rights; that it merely says when the so-called Great Writ can be suspended.
“There is no expressed grant of habeas in the Constitution; there’s a prohibition against taking it away,” Gonzales said.
Gonzales’s remark left Specter, the committee’s ranking Republican, stammering.
“Wait a minute,” Specter interjected. “The Constitution says you can’t take it away except in case of rebellion or invasion. Doesn’t that mean you have the right of habeas corpus unless there’s a rebellion or invasion?”
Gonzales continued, “The Constitution doesn’t say every individual in the United States or citizen is hereby granted or assured the right of habeas corpus. It doesn’t say that. It simply says the right shall not be suspended” except in cases of rebellion or invasion.
“You may be treading on your interdiction of violating common sense,” Specter said.
While Gonzales’s statement has a measure of quibbling precision to it, his logic is troubling because it suggests that many fundamental rights that Americans hold dear don’t exist because the Constitution often spells out rights in the negative by barring the government from intruding on them.
For instance, the First Amendment declares that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
Applying Gonzales’s reasoning, one could argue that the First Amendment doesn’t explicitly say Americans have the right to worship as they choose, speak as they wish or assemble peacefully. The amendment simply bars the government, i.e. Congress, from passing laws that impinge on these rights.
Similarly, Article I, Section 9, of the Constitution 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.”
The clear meaning of the clause, as interpreted for more than two centuries, is that the Founders recognized the long-established English law principle of habeas corpus, which guarantees people the right of due process, such as formal charges and a fair trial.
That Attorney General Gonzales would express such an extraordinary opinion, doubting the constitutional protection of habeas corpus, suggests either a sophomoric mind or an unwillingness to respect this well-established right, one that the Founders considered so important that they embedded it in the text of the Constitution.
Gonzales also may be wrong in another way about the lack of specificity in the Constitution’s granting of habeas corpus rights. Many of the legal features attributed to habeas corpus are delineated in a positive way in the Sixth Amendment, which reads:
“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed … and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; [and] to have compulsory process for obtaining witnesses.”
Gonzales’s Jan. 18 statement suggested that he is still searching for arguments to make habeas corpus optional, subordinate to the President’s executive powers that Bush’s neoconservative legal advisers claim are virtually unlimited during “a time of war.”
The Justice Department’s arguments in the Marri case underscore that Bush still sees himself as a modern-day version of the absolute monarch who gets to decide which rights and freedoms his subjects can enjoy and which ones will be denied.
Robert Parry broke many of the Iran-Contra stories in the 1980s for the Associated Press and Newsweek. His latest book, Secrecy & Privilege: Rise of the Bush Dynasty from Watergate to Iraq, can be ordered at secrecyandprivilege.com. It's also available at Amazon.com, as is his 1999 book, Lost History: Contras, Cocaine, the Press & 'Project Truth.'
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