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