December 13, 2014 § Leave a comment
As I write this, the United States Senate is debating a measure that would weaken Dodd-Frank’s regulation of Wall Street banks, increase the amount of money a single donor can contribute to political parties and enable employers to reduce pension payments of retirees after they retire and have earned their pensions.
These outrages are attached to a budget bill whose passage is required to keep the government operating. None of these dishonest and unwise amendments have anything to do with the budget. They were attached to the budget bill by anonymous members of the House of Representatives at the behest of Citigroup. There was no committee hearing. There was no opportunity to vote on them separately.
In other words, they were so obviously the result of corruption that their sponsors would not own them. They could only be adopted as part of a legislative blackmail scheme.
This is not, however, the real scandal. The real scandal is that this dishonest scheme could only proceed with votes by Democratic Party members. The bill passed the House by a narrow margin, including aye votes by 57 Democrats.
[I note with some satisfaction that no Texas Democrat voted “aye”.]
No, that is really not the real scandal. The real scandal is that the only two elected officials who are personally identified with pressuring members of Congress to agree to these outrages are named Barack Obama and Joe Biden . Yep. Some things are too dishonest to make it, even given the present sorry state of our politics. So you have to bring out the Big Guns, the Prez and Vice (pun intended).
How did this happen? Well, we get the usual explanation. It was a compromise; the best deal we could get. If we don’t go along, the President won’t be able to work with Republicans on other matters.
Whoa! Say what? When has the President been able to work with Republicans on anything significant? What makes anyone think this will improve in a few weeks when the GOP majority will become filibuster proof? Just how stupid and naive are we suppose to be? Will this be an adequate explanation for the retirees whose pensions will be decimated? When the power of the Koch Brothers and others like them is used to gain even more control of our political parties, will we view the results and say, “Well, it’s bad, but it was worth it to avoid an ugly argument about the 2014 Budget Bill.”
The Perpetuation of “Too Big To Fail/Jail”
Dodd Frank addressed a problem that confronted us when the Wall Street Banks faced insolvency because of their fraudulent marketing of mortgage based derivatives. They used depositor money to finance those derivatives. If they became insolvent, the taxpayers would have to make the depositors whole because of the FDIC insurance program. That is, the taxpayers would belatedly finance the reckless greed of the Wall Street pirates.
Dodd Frank cured this by requiring that future trading strategies that depend on derivatives and Byzantine schemes involving sketchy tools like credit-default-swaps, that look like insurance but have no reserves, would have to be conducted by entities separate from FDIC insured deposits, with money other than depositor money.
In other words, the ones who profit from high-risk gambles would have to risk their own money, not FDIC-insured depositor money.
Predictably, this was regarded as a terrible idea by the high-risk gamblers. They have become addicted to the system of “If I win, I pocket the money. If I lose, you pay for the loss.” So, Citigroup, acting for the other pirates, just wrote a solution to their problem, forwarded it to some elected officials they owned, who transcribed it into an amendment to the budget bill. Their solution is part of the bill Obama and Biden have been frantically calling House and Senate members about, begging them to vote “aye”.
Thank God For the Women
Nancy Pelosi was left out of the negotiations that led to this piece of garbage. She did not join the cheer leaders who whooped it through the House. But the one who has filled a gaping chasm where the political soul and conscience of the Democratic Party once rested, is Elizabeth Warren. What a thrill to see a Senator who has not forgotten how to express moral outrage. And knows how to do it while exhibiting a razor sharp wit and a mind to match.
When she spoke on the floor of the Senate, looked squarely into the camera and addressed Citigroup, the sponsor and author of the Dodd-Frank gut job, and said, “I agree with you. Dodd-Frank is not perfect. It failed to break you up into small pieces.”, I just about fell in love again, despite 65 years of marriage. She is a wonder!
Which Side Are You On?
This episode reminded me of an old union song I taught my daughters to sing when they, and I, were young. It was written in 1931 by Florence Reese, the wife of a coal miner in Harlan County, Kentucky, during a bitter strike. The Harlan County Sheriff was J.H. Blair, an enforcer and strike breaker for the mine owners.
One night some of Blair’s thugs stormed into the Reese home, looking for Sam Reese. He had been tipped off and was not there. They terrorized his wife Florence and his children but didn’t get Sam.
After they left, Florence, angry and scared, wrote a song on the back of a calendar, expressing her devotion to the union and her contempt for those who failed to support the strike. Here is a link to Pete Seeger and his banjo, singing Florence’s song:
While watching CNN and MSNBC about this budget episode, I kept getting madder and madder and I remembered that old song. So I wrote my own version:
In our US Congress
There are no neutrals there
You either vote your consciences
Or whore for billionaires
Which side are you on?
Which side are you on?
Which side are you on?
Which side are you on?
Obama we’re in danger
The wolves are at our door
We don’t need reasoned argument
We need a two-by-four
Barack Hussein Obama
How dumb can you get?
A shepherd cannot safely try
To make a wolf a pet!
It’s time to rein in Wall Street
Our country’s not for sale
At ballot box and in the streets
We must fight and prevail.
Thank God for Betsy Warren
She speaks for us out loud
She does not hedge or compromise
To blend in with the crowd
No go along to get along,
She hews to moral rules
She tells it straight and tells the truth
She has no time for fools
I don’t yet know how this drama will end, but I’m not optimistic.
September 3, 2014 § 6 Comments
I have a proposal for consideration. I know that, at least for today, it has no chance of any consideration. It may be a permanent “non-starter”, the common euphemism for a fatuous fantasy. Still, because I have been thinking about it, I have decided to own it by posting it on the internet.
I propose that the United States Congress enact a law requiring every citizen of the United States, on the day he or she becomes eighteen years of age, be drafted into public service for a period of two years. No exemptions should be granted for physical impairment (unless the impairment is so severe that the person is unable to perform any useful work). No exemption should be granted to permit the person to attend an educational institution.
The draftee should be permitted to apply for available types of public service and the applications should be approved or denied by boards of citizens residing in the communities where the draftees live (similar to draft boards during WWII).
Those decisions should be based on a quota system established to insure that enough applicants are approved to perform all the tasks and goals set for public service during the period for which the draftee is being considered. One of the categories of public service should be military service. That category should be large enough to insure that the national security requirements of the nation are satisfied.
The non-military categories would consist of such tasks as public park construction and repair; public school construction and repair; teacher aide and student mentoring; expanding the availability of health care to under served communities with supervised health care trainees; and other public service jobs. The model would be the CCC program of the 1930’s.
One feature of this program should be the extension of the GI Bill to insure that each draftee is able to enroll in a college, university, technical school or apprentice program for a period of at least four years. It should provide for payment of tuition and a stipend sufficient to support the draftees who choose to take advantage of the education benefit.
The Draftees’ Reaction
I assume the young people would complain about this idea, but spending two years between high school and college, some job or career wouldn’t damage them as much as they might think. After all, we all live longer now, so they’d have had plenty of time to make mistakes after they reached twenty. Getting a late start wouldn’t be so bad.
When I was eighteen, I had the results of polio and didn’t qualify for the draft. But I would have been happy to join this kind of program. I probably would have married my sweetheart, just like I did. We would have found some way to work together and we would have been fine, probably better than the way it actually happened. Who knows? One thing sure. It wouldn’t have been the end of the world.
This would address five problems.
First, it would moderate the eagerness of our population to goad our government toward military solutions for world problems. If our military forces consisted of a general cross section of our population, mothers would not be so sanguine about going to war.
Second, it would transfer a sizable amount of money to American young people as well as furnishing them with employment alternatives to gang membership, drug culture and irresponsible idleness.
Third, it would enable generations of Americans to get college educations.
Fourth, the transfer of money the program would help to solve the inequality problem presented by Thomas Picketty.
Finally, it would encourage a sense of community and involvement in public service, a counter measure against the current and growing culture that foments division and suspicion, especially based on hatred of democratically elected government.
Well, if you’ve read this far, you’re probably shaking your head and have concluded that Bob has finally lost his last marble. I know this is a fairy tale today. I don’t like professional armies. I don’t like wealth inequality. I don’t like price tags on higher education that limit it to a dwindling elite class. I don’t like military cops and center city crime and a criminal justice system that jails generations of mostly black young men. I think this would address those issues.
What do you think?
October 2, 2013 § Leave a comment
First, a Correction Notice
I have made some corrections to my last post (www.bobsremonstrance.com “A Mind Meld, a Grok and A Couple of Reactions”). The substance has not changed, but I have removed two or three “that”‘s that escaped my notice when I originally edited it. “That” is a word almost always as useless in a written piece as “you know” in a conversation. I ordinarily excise the “that”‘s that creep in but, this time, I missed some.
Also, in memory of my high school English teacher, I cleaned up a sentence in the part about “Crime and Punishment”. I originally wrote: “The novel is an engaging description of a part of Russian society, set in St. Petersburg.” My only excuse is an aging brain. The sentence now reads, “The novel, set in St. Petersburg, is an engaging description of a part of Russian society”
Finally, I removed the redundant word “mental” from my effort to describe Styron’s long window into the mind of Peyton. I wrote that he described her “mental musings”, as if “musings” could be other than “mental”. So “mental” is now gone.
Is There A Conspiracy?
I have long considered those who interpret current events as the product of conspiracies to be CooCooBirds. So, with great hesitation, I present my version of the present struggle over funding our government and paying our bills. I hope I am wrong, but the evidence seems persuasive that we have among us a cadre of powerful and wealthy individuals who want to convert the democratic republican government of the United States of America into a plutocratic corporate oligarchy.
American Business Community: Has It Been The Dog That Didn’t Bark?
I have a friend who never tires of rebuking his liberal comrades for claiming and assuming that the GOP is the party of business. He insists that the Tea Party insurgency within the Republican Party has separated it from the interests and policies of American capitalism. As he analyzes the issue it reminds me of the epic struggles within the labor movement in the 1930’s when factions allied with the Communist Party sought leadership roles. There were some unions in which they had some success but the newly organized CIO, notably the Steelworkers and the United Auto Workers, fought back in a series of epic convention battles. The Communists were effectively drummed out of the labor movement and never gained any significant power in unions. My friend contends that the relationship between the Tea Party and the GOP is similar to the Commies versus the CIO.
In the last week the press has reported that agents of the Chamber of Commerce and some representatives of Wall Street’s financial community met privately with House Speaker Boehner and other GOP leaders. They expressed alarm at the prospect of a government default if the “debt ceiling” is not raised. In apparent response, Boehner stated he will not allow that to happen. The Tea Party members, led by Ted Cruz continues to threaten a default. It remains to be seen how this will play out. Boehner’s statement is interesting. He is not promising that his party will not threaten a default; just that they won’t allow a default. How kidnapping extortion works when there is no threat to shoot the hostage is a mystery.
Those who insist GOP policies no longer align with those of the capitalists point to these reports as confirmation of their argument. I see the matter somewhat differently. I perceive the Tea Party as the latest iteration of a movement, attitude and set of policies that have roots planted long before they acquired the clever “Tea Party label . They can be summarized with three words: Hate the Government.
This history can be traced through rhetorical artifacts. In 1978, Alan Greenspan told a Finance Committee, “”Let us remember that the basic purpose of any tax cut program in today’s environment is to reduce the momentum of expenditure growth by restraining the amount of revenue available and trust that there is a political limit to deficit spending.” A Wall Street Journal article quoted a Reagan staffer who summarized the idea with a bumper sticker quip, “Starve the Beast”. St Ronnie, in his 1981 inaugural address, said, “Government is not the solution to our problem; government is the problem.” Grover Norquist stated the goal plainly: “I simply want to reduce it [the govenment] to the size where I can drag it into the bathroom and drown it in the bath tub.” The Great Communicator told his adoring followers, “The nine most terrifying words in the English language are: ‘I’m from the government and I’m here to help’.”
These ideas, repeated and elaborated over and over by hate radio hosts like Limbaugh, Hannity and dozens of others scattered throughout the country, embedded themselves in mainstream consciousness and had powerful effects. I believe they relate to the present political climate and the outsize influence of the “Tea Party” in the same way that the Taliban’s ideas related to the advent of Al Qaeda in Afghanistan. This “hate the government” policy is to our democracy as the dogmas of Sharia are to Muslim ideas of government. It is true that the Taliban does not represent the policies of the majority of Muslims. Most Muslims do not favor government run according to Sharia law.
Unlike the labor movement, however, the Muslim/Arab community, while some representatives have disclaimed allegiance to Al Qaeda, has mounted no vigorous public opposition to the growth of that extremism. Recent developments in Egypt reflect how timidly and ineffective such opposition has been.
And, also unlike the labor movement, the American business community, far from denouncing the growing political clout of these government haters, have favored, with generous financial support, candidates who have based their campaigns on these “hate the government” policies.
Why Did the Business Dog Not Bark?
I began by asking myself why the corporate business community would permit the Republican Party to threaten the stability of our financial system by failing to make timely interest payments on our debt. I assume the Koch brothers, the Club for Growth, the other controlling owners of Big Oil and the complex of Wall Street banks and hedge funds could exert a powerful influence on the policies of the GOP should they choose to do so. They have certainly paid handsomely for that kind of access. So, intimately involved as they are in the domestic and international financial markets, why would they allow a US default that would do immediate and long term damage to the reputation of U.S. bonds? To oversimplify, why would they want to damage the ability of the U.S. government to borrow money at low rates of interest?
When I stated the question in this simple way, I caught a glimpse of the answer: If their goal is to weaken and, if possible, destroy the ability of the U.S. government to create and maintain programs that protect ordinary working class citizens from the turbulence of unregulated capitalism, they would prefer that the funding of such programs be dependent on the power to tax, not the ability to borrow.
Government, like private enterprise, cannot grow if it lacks access to borrowed money at reasonable interest rates. Powerful corporate businesses are intuitively and invariably opposed to taxes and government regulation. The Supreme Court has enabled such interests to wield virtually unlimited power to favor obedient politicians and to punish disobedient ones. Thus armed, they probably are confident they can prevent large tax increases. And, if taxes must be raised, they have shown impressive ability to insure they are levied against the middle class, not the corporate ruling class.
I believe the silence and indifference of the business community to the growth of these ideas has resulted, in part, from changes in the nature and makeup of that community. The wealth and power of American capitalism has become more concentrated in the financial system. Engine Charley Wilson’s claim that “What’s good for General Motors is good for America” seems quaint in today’s America. General Motors owes its existence to a Democratic Party president and a financial life preserver tossed by the government. Wall Street banks have become so powerful and so capable of capsizing the American economy that the Attorney General has pronounced them “too big to fail and too big to jail”.
I believe the present conspiracy is the result of a very long train of events that were engineered by a relatively small group of people who were active in business, but who did not comprise the mainstream of business leaders. They created think tanks, institutes, foundation-funded university and college chairs and fellowships. They promoted candidates whose rhetoric identified the federal government as the enemy.
The complicity of the mainstream business community consists, I believe, in its enthusiastic embrace of the results of these political tactics. They have eagerly applauded the destruction of the labor movement. They have railed against fair taxes. They have bitterly opposed reasonable regulations. They have contributed large amounts of money in support of candidates who preached hostility toward the government in which they sought elective office . The business community has, like Dr. Frankenstein, created a fiend they did not fully understand or expect.
We will soon discover whether American capitalism will forswear its Faustian bargain with the Tea Party and force a return to rational politics. Regardless of the brash claims of independence by the Tea Party office holders, I believe if they were told that pursuit of their destructive policies would net them a few hundred million dollars worth of opposition when they run for re-election, their devotion to principle might wane. So long as the opposition of Wall Street is limited to “tut tut” and “shame on you”, I agree with the Tea Partiers: “These guys are not for real.”
Safe Havens for Domestic Political Terrorists
During the past ten years, using arcane political ploys, too complicated to attract the attention of ordinary voters, the corporate plutocrats and their client state office holders have created a network of what the British once called “rotten boroughs”, voting districts composed of like-minded constituents who would return representatives to Congress regardless of how dramatically their views differ from those of the majority of Americans. These were and are safe havens for the Tea Party caucus. They are the American Afghanistan. In Texas this was engineered by Tom Delay, a creation of corporate lobbyists.
Who Are These Terrorists? What Do They Want?
The carefully crafted political climate in those districts has enabled the election of a group of Congressmen who regard government as the enemy. They are not anarchists. They favor government policies that protect property rights, provide for an expanding military force and other services that facilitate business activities. So far as concerns such functions as the “safety net” and promoting the “general welfare”, they regard such expenditures as charity, inappropriate for taxpayer support.
The above described political strategy and policies have been accompanied by an effective media campaign powered by Fox News and talk radio. An echo chamber has been created in which a significant percentage of our citizens live and work. There they are relentlessly bombarded with reasons for hostility toward their government, especially the federal government. So-called “social issues” like abortion and gay marriage are featured. The Bill of Rights is interpreted to be important as protection of gun ownership and property rights, but as a hindrance to apprehension and punishment of suspected criminals. Above all, taxation to pay for relief from poverty is denounced as theft and an invitation to moochers and lazy loafers. Government regulation is blamed for interfering with the pursuit of profits and healthy competition.
Federal laws enabling workers to bargain through labor unions have been gutted. There is no “labor movement”; only a few vestigial survivors of the struggles that occurred during the first half of the twentieth century. The only effective organizations capable of exercising significant influence on national political policy are private corporations. Political party organizations are generally ineffective. Political candidates create ad hoc organizations that disappear after elections.
What If They Prevail?
The end result of these developments is easy to envision. If the policies they represent prevail, the decisions affecting the lives and fortunes of ordinary Americans will not be made in the halls of government in Washington D.C.. They will be made in the board rooms of a few corporations with enough power and money to control lower tiers of lesser corporations whose success depends on access to capital and favorable treatment by the tycoons of finance. The profit motive and free market capitalism will replace any thought of empathy, compassion or fairness as determinants of government policy. Workers with no bargaining power, facing fierce competition for jobs, will be forced to accept whatever employers choose to offer. The “Iron Law of Wages”, rejected as morally unacceptable by Ricardo, will become the hallmark of American labor policy.
We’ve Seen An Earler Version of This Movie
Our history offers a preview of how this looks. In the early 1900’s a few powerful business giants controlled the railroads, the coal, the iron and the Wall Street banks that, in turn, operated the United States as a corporate subsidiary. This was the age of the “Robber Barons”.
That earlier period of institutionalized selfishness and greed did not permanently change our country because its victims fled westward into the still sparsely populated frontier of our vast land. Also, in the 1920’s, the Wall Street casino, operating without any significant regulation, created a gigantic bubble of exuberant greed that finally popped. FDR and his brain trust cleared away the wreckage and established a new system based on a balance between capitalism and government. That effort was aided by the financial stimulus required by our mobilization to fight WWII.
How Did Domestic Political Terrorism Become a Political Strategy?
Fifty years later, led by Ronald Reagan, the government began dismantling the balance established by the New Deal. He began by attacking labor unions. He used his office to demean and discredit every government program designed to alleviate poverty and enable the underprivileged to enjoy a reasonably comfortable middle-class life. He used his skills as an actor to spin yarns about “Welfare Queens”. He inspired a generation of government haters to follow his example and design ways to foster distrust and hostility toward the United States government.
This effort, in the past five or six years, has emboldened a group of angry ideologues, calling themselves the “Tea Party”, to claim the right to set minimum standards of political purity for the Republican Party. Like Al Qaeda, they are so loosely organized that identifying their responsible spokesmen is difficult. They have an agenda, but no formally elected or appointed leaders. They operate like free-ranging enforcers of their ideology. They have demonstrated their ability to intimidate members of the GOP holding public office who, if they stray from the dictates of the Tea Party, find themselves opposed by primary candidates more aligned with its dogmas. Ted Cruz, a first-term Senator from Texas, is their Supreme Leader. His current fatwah requires a jihad against the Affordable Care Act.
In 2011, the President and the leadership of this terrorist group made a deal. It was in the form of a promise to make a deal. They promised to reduce the federal deficit by a stated amount by January 1, 2013, and, to insure that they would bargain in good faith on ways to achieve that goal, they agreed that, if they failed to keep that promise, a group of budget cuts would be imposed in ways thought to be so irrational as to be unacceptable to either political party.
The negotiations that followed revealed that, contrary to expectations, the domestic terrorist group declared they were agreeable to the irrational budget cuts and, hence, would not agree to any reasonable alternative. On January 1, 2013, an impasse occurred and the damaging budget cuts took effect in March, 2013. The domestic terrorists were emboldened by what they regard as their successful strategy aimed at weakening and crippling the federal government, thus fulfilling their promise to the electorate in their Afghanistan districts. They learned that, by focusing on sabotage rather than governance, they could not only survive, but exercise power.
The similarity of this recent history to the strategy of the Bolsheviks following the 1917 Russian revolution is remarkable.
What Happens Next?
I think, during the next few weeks, this domestic terrorist group will mount an assault on the financial system of the United States by forcing a default on our bonds. If they are successful, the economy may gradually slide into a new form of recession. This time, weakened by the debt default, the government may not have the ability to counter the faltering economy with financial stimulus money. Any chance of moving forward with gun safety laws or immigration reform will disappear. The wish list of America’s most powerful and ruthless corporate enemies of the federal government will become the agenda of the Tea Party’s next fatwahs.
If this happens, it is difficult for me to believe that it will occur by accident. It will convince me that there has, indeed, been a well thought out and deftly executed conspiracy to take over our government by a corporate plutocracy. I know this sounds like Joe McCarthy and the John Birch Society in the 1950’s railing about the “communist threat”. I only hope it proves to be as goofy as that.
July 7, 2013 § 4 Comments
A front page story in today’s New York Times describes how the FISA Court is creating a secret body of law that affects the life of every person who has lived in the United States during the past six years and millions of others who live in other countries. Here is a link to that important story::
I believe this story describes an issue far more important to the future of our country than the government mendacity exposed by the Pentagon Papers. To appreciate how fundamentally this threatens a vital principle of our legal system, it is necessary to consider its implications.
First, we claim that our government’s legitimacy is based on our consent, the “consent of the governed”.
Second, our Constitution provides that law making is reserved to the Congress.
Third, our legal system is based on two kinds of law: statutory law, including constitutional law, and common law. Common law is a system of law we brought with us from Britain. It is based on the accretion of precedents consisting of decisions of previous courts. The doctrine according to which it develops is stare decisis, which is Latin for “to stand by things decided”. The principle involved is that the law should be applied alike to similar issues; that its interpretation should not depend upon the identity of the litigants. This enables people to predict, with a reasonable degree of confidence, what the decision of a court will be, given a particular set of facts. It insures that justice for one will be justice for all.
Fourth, we, the people, choose those to whom we entrust the power to make laws that affect us. We make those choices through democratic elections. To make those choices intelligently, we need and are entitled to pertinent information, so that, if the lawmakers we chose do not exercise their authority to make laws that please us, we can fire them and hire replacements.
I apologize for repeating these elementary principles. I know they are taught, or should be taught in public schools. I do not intend to condescend to my readers but, given the nature of the recent discussion of the FISA court and the N.S.A. surveillance it has been authorizing, I have some doubt that the commentators are paying appropriate attention to these fundamentals of our government and our political system.
We now know that the FISA court, eleven judges appointed by Chief Justice Roberts, ten of whom are appointees of Republican Presidents, has, in a series of hundreds of decisions, each one building on its predecessors according to the doctrine of stare decisis, erected a legal structure that approved the gathering by our government of a trove of data containing every tiny detail of every move, choice, purchase, communication, financial transaction, preference and relationship of every person in the United States and, as stated, uncounted millions in other countries. That data, in turn, has been opened for analysis according to rules and choices made by government officials and private contractors’ employees, supervised by secret decisions made by the FISA court.
Without knowing what, if any, polling has been done following these disclosures, I feel absolutely safe in assuming that most people, here and abroad, were astonished when they discovered that such intimate details of their lives were recorded in searchable databases owned by the United States government. That astonishment means that the above-stated system of government has not been operational concerning this matter.
It is true that, theoretically, the members of Congress have been able to find out about these developments. It is also true that “theoretically” is the operative word in that sentence. It is obvious that a majority of the members of the House and Senate did not take the trouble to find out the details of FISA’s proceedings and decisions. It is also true that, when a Senator, e.g. Senators Wyden and Markey, tried to find out some of the details, N.S.A. declined to answer their questions.
Because of this lack of public knowledge, the Fourth principle stated above, did not work. We, the people, did not express our opinions about what N.S.A. was doing or how the FISA court was interpreting the laws our elected representatives enacted because N.S.A and the FISA court kept what they were doing a secret. In other words, democratic government was sidelined behind a wall of classified insulation.
I am outraged about this and I think others should be also. If we no longer believe that we can bear the risks of living in a free country, we should stop pretending otherwise.
I am afraid my fellow countrymen are in danger of falling into a trap that government always uses to lull guileless people to sleep: “If you haven’t anything to hide, you need not worry about our right to pry into your personal life.” I wish the FISA court would decide that personal diaries might offer “foreign intelligence” and order all diaries submitted for copying by a government agency. Maybe then, people would wake up and realize that, regardless of whether they “have anything to hide”, they don’t like the government intruding into their private lives. Of course I”m dating myself with that fantasy. No one keeps a diary anymore. They post everything on Facebook or Twitter or some other public forum.
The insidious and sinister nature of the N.S.A. surveillance program is that it enables the government computers to fish for “patterns” that are then interpreted to mean various things about the person whose data is analyzed. When we go about our daily lives, we do not consider how our choices made over a period of years can be filtered and sorted to appear dangerous or scandalous or embarrassing. When all the data is available, “connecting the dots” depends on the biases and motives of the connector, not necessarily those of the connectee.
There is a good movie that perfectly illustrates the concerns I am trying to express here. “Lives of Others” is a 2006 movie about the Stasi, East Germany’s intelligence police and their obsessive accumulation of information about East German citizens. I don’t know where or if it is still available. I assume it is probably on sale at Amazon. If it becomes available on some TV channel to which you subscribe, check it out. Like “1984” and “Brave New World”, it expresses dramatically what I’m trying to express here.
I have no reason to believe that the present government has malevolent intentions concerning the use of the data that has been accumulated. I do not know, however, about the intentions of those who may have access that data in the future. It is a “weapon of mass destruction” whose ownership and control should not depend on the outcome of future elections.
James Mason, a legal scholar and one of our founding fathers, once wrote, “Law and liberty cannot rationally become the objects of our love, unless they first become the objects of our knowledge.”
May 20, 2013 § Leave a comment
In the following essay I will argue that President Obama’s claim of authority to order assassinations of American citizens and others without complying with the requirements of due process and without disclosing the factual basis for his order violates the Fifth Amendment to the Constitution.
The etymology of the phrase “Lynch Law” is murky. It may have been named after James Lynch Fitzstephen of Galway, Ireland who, while mayor, hung his son from the balcony of his home in 1493, after convicting him of murdering a Spanish visitor. It has also been attributed to Charles Lynch, a Virginia planter and American revolutionary, who presided over a county court. Judge Lynch, without formal jurisdiction, imprisoned British loyalists for up to a year during the Revolutionary War. The Continental Congress retroactively affirmed his action. William Lynch, also of Virginia, claimed the phrase originated in a 1780 privately negotiated compact between him and his neighbors in Pennsylvania County.
Lynch law has a long and shameful history in America. A study at Tuskegee Institute listed 4,743 lynchings between 1882 and 1968; 3,446 blacks, 1,297 whites.
Based on this history, it is fair to characterize lynch law as lawless imprisonment, punishment or execution.
A Brief Historical Comment
The history of warfare is a record of expanding the reach and capacity of men for death, mayhem and destruction. The process began when the first man picked up a stone, a club or a stick to gain advantage over an enemy. The sling extended the range of the stone. The spear in the hands of a strong armed warrior extended the range of the stick. The bow and the catapult added range to both the spear and the stone. Roman soldiers armed with short swords, standing shoulder to shoulder in squares, powered an empire. Genghis Khan and his fearsome mounted army swept away everything in his path from Mongolia to Western Europe with highly trained horsemen armed with bows and arrows.
Explosive compounds, rockets and airplanes enabled transcontinental range for destructive weaponry. In the past sixty days, we learned that American stealth bombers based in Missouri flew nonstop 6,500 miles to engage in war games on the Korean peninsula and returned home. Nuclear technology and chemical warfare have increased the destructive capability of men to a potential for rendering our planet uninhabitable.
War and The Law
In a fitful effort to control these forces of chaos and destruction, societies have developed various systems of laws and cultural norms designed to impose some limits on war. One of the most basic legal principles established by laws related to war is that assaults, homicides and property destruction are not criminal if committed by soldiers engaged in wars. War affords its participants a legal justification for acts that, if committed by private citizens, would justify prosecution and punishment. Western democratic societies have tried, with very limited success, to establish limits on this defense to prosecution. An effort has been made to define “crimes against humanity” and to prescribe punishment for such “crimes”, regardless of whether committed during a war.
These efforts have resulted in somewhat skewed results. The victors in WWII prosecuted, imprisoned and executed German and Japanese “war criminals” for wanton destruction and killing of civilians, conveniently ignoring the bombing of Dresden and the nuclear and fire bombing of Japan. This said, however, it is true that, until the past decade or so, the distinction between crime and war was generally recognized and observed.
Even revolutionary wars, pitting neighbor against neighbor and countryman against countryman, were treated as wars and the participants were not viewed as criminals. Confederate soldiers in the Civil War were not prosecuted for treason, even though Union rhetoric accused them of being traitors. When the war ended, Confederate prisoners were released to return to their homes. A vengeful Congress stripped them of their rights as U.S citizens, but even those retaliatory measures were later modified as part of a political deal.
9-11, The Failure of Checks and Balances and the Patriot Act
On September 11, 2001, airplanes piloted by agents of Al Qaeda crashed into two office buildings in New York City and the Pentagon in Washington D.C.. The buildings in New York were destroyed and the Pentagon sustained significant damage. Seventeen days later, on September 18, 2001, with one dissenting vote in the House and a unanimous vote in the Senate, the U.S. Congress adopted a joint resolution that stated, in pertinent part:
“That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”
This joint resolution, entitled “Authorization for Use of Military Force”, often abbreviated as AUMF, has been used by the Bush and Obama administrations to authorize the President to by-pass the Constitutional provision that reserves to Congress the power to declare war. [Article I, Section 8]. In fact the last time Congress declared war was in December, 1941.
The United States has used military force against against North Korea, Vietnam, Cambodia, Grenada, Afghanistan, Iraq, Pakistan and Libya, all without any declaration of war by the Congress. Harry Truman named the Korean War a “police action” to explain why he sought no Congressional declaration of war. LBJ claimed that the Vietnam war was waged in response to an attack on an U.S. Navy vessel in the Gulf of Tonkin. A Joint Resolution of Congress authorized the president to use military force to help countries who were parties to the South East Asia Treaty Organization secure “their freedom”. A later investigation concluded that most of the claims that the Navy vessel was attacked by North Vietnam ships were false. Nevertheless, 58,000 dead American soldiers and countless Vietnamese and Cambodians resulted from this undeclared war based on those lies foisted on Congress.
The Bush and Obama administrations have ignored the language of the Joint Resolution that limits its targets to “. . . nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons,. . . .” Al Qaeda has been interpreted to mean any person or group that seems to have some wish or intent to do harm to Americans. The only requirement seems to be that the target must be somehow “associated with” some group, regardless of how amorphous or loosely organized, that can be linked to the phrase “Al Qaeda”.
At a Senate hearing on May 18, 2013, representatives of the Department of Defense testified before a committee of the Senate. In response to friendly questioning from Senator Graham they claimed the right to wage war anywhere they found anyone threatening any “terrorist” act against the United States; that the “battlefield” encompassed an area they described as “from Yemen to Boston”. This testimony astonished even Senator Graham’s political clone, John McCain. To appreciate the scope of our present lawless and unlimited military machine, see the excerpts published by the Huffington Post.
To summarize: Both Bush and Obama have used the above-cited 2001 Joint Resolution as a basis for their authority to make war on anyone, anywhere, any time if they can relate some activity, threatened or likely activity of the target to some “future acts of international terrorism against the United States”. Some times that relationship seems, at least to me, so tenuous as to be credible only to those who, like the audience watching a play, are engaged in a “willing suspension of disbelief”. “Six degrees of Separation from Kevan Bacon”, an interesting parlor game, seems to have become a template for the “war on terror”.
The most dangerous power of government is military power. The United States has the most powerful military force in the history of the world. The only protection from misuse of that power is the Constitution, a worthless document unless its terms are enforced, either politically through elected officials or legally in our courts. During the past seven decades we have passively watched as that military force has become stronger and the restraints that render it safe have all but vanished.
This has occurred for three reasons: First, American citizens have been terrorized, not by foreign terrorists but by home-grown political demagogues who have used appeals to patriotism and exaggerated fear to convince Americans that constitutional protections against lawless government are mere hindrances that interfere with efforts to protect them against dreadful attacks. Second: Elected officials charged with enforcing those constitutional protections have defaulted because of political cowardice or corrupt alliances with corporate business forces that profit from military armament. Third: Our courts have been unwilling to halt the erosion of constitutional protection because they perceived the issue to be political, rather than legal and, in cases involving individual rights, have been too willing to accept the so-called “national security” defense that allows government to cloak in secrecy the factual bases, or lack thereof, for its actions.
The “War on Terror”
I have expressed my concern about the undeclared wars that have cost trillions of dollars, hundreds of thousands of lives and devastated several countries. I am convinced that the costs of those wars, both in blood and treasure, have greatly exceeded any benefit that resulted from them. I am convinced that none of them, with the possible exceptions of the Korean war and the first Gulf War, were necessary. So far as I can tell, neither Afghanistan, Pakistan, Iraq nor South East Asia are better off today because America waged war against them.
I am grateful, of course, that many of the leaders of Al Qaeda, a vicious and dangerous organization, have been captured or killed. I do not believe, however, that tracking them down and dealing with them required the trashing of our Constitution and the various wars that have been waged in response to the attack on September 11, 2001. Terrorist attacks are crimes committed by criminals. They are not acts of war and the criminals are not soldiers.
We have criminal laws and orderly constitutional procedures for dealing with criminals, both those found in America and those found elsewhere in the world. When the September 11 attacks occurred, we should have organized an international team of law enforcement officials in a joint effort to locate and apprehend those responsible. When they were caught, we should have extradited them to America, jailed them, tried them and imprisoned or executed them without violating our laws and without engaging costly and unnecessary wars.
The vast Homeland Security bureaucracy employing 180,000 people, created in the panic following the 9-11 attacks, had little to do with the successful effort to deal with Al Qaeda. Neither the Iraq war nor the Afghanistan war has resulted in any appreciable damage to Al Qaeda that could not have been accomplished with a more targeted law enforcement effort. Individual leaders of Al Qaeda have been captured or killed by small teams or specific attacks unrelated to those wars. Misnaming our reaction to the September 11 attack as a “war on terror” has done little to injure our enemies. It has done significant damage to our system of laws.
The extra-judicial invasion of privacy spawned by the Patriot Act, claimed to be required because we are in a “state of war”, has enabled government access, without a warrant, notice or hearing, to our emails and our telephone calls. Our activities are recorded by ubiquitous cameras mounted on drone aircraft as well as thousands of other stationary locations. The information about us thus secretly acquired is then secretly analyzed by nameless bureaucrats whose motives and methods are secret, hidden from judicial oversight and public disclosure by claims of “national security”.
The Advent of the Drone
The development of drone aircraft capable of carrying explosive weapons and controlled from remote locations have, in my opinion, significantly increased the danger to all of us resulting from the above described expansion of presidential discretion to kill people located anywhere in the world because they are claimed to be, or likely to be or become “terrorists”. This new weapon sheds the disguise of a “war on terror”. It is an individualized personal weapon to be used against specific named persons. In other words, a drone does exactly what a law enforcement officer does: Seek and kill people suspected of having committed a crime. As presently used, however, drone killing is done with no pretense of due process.
A thief who shoplifts a candy bar can be arrested only based on probable cause, is entitled to Miranda warnings, a written statement of charges against him or her, a lawyer and a trial before an impartial tribunal. If, however, he or she is in Yemen and can be somehow be connected to some group calling itself “Al Qaeda”, he or she can be added to a hit list by a group meeting in the White House and blown up in a drone strike based on secret evidence never disclosed.
If this does not concern you, because you are confident that Barack Obama and his administration would not misuse this authority, I have just two words for you: Ted Cruz. He will probably run for President in 2016. How much are you willing to wager that he won’t be elected? Your life and your liberty? Did you think American voters would grant George W. Bush a second term in 2004, given the fact that his disastrous first term had embroiled us in a senseless war in Iraq, converted a budget surplus to a giant debt, and allowed Wall Street bankers to wreck our economy? No? Neither did I. But they did, by a larger margin than his first election, the one they had to steal.
The Supreme Court and the “War on Terror”
In Ex parte Merryman Chief Justice Roger Taney ruled that the President, even if the country was at war, could not suspend the writ of habeas corpus without Congressional authority. The case is an interesting one. In 1861, the Civil War was beginning. President Lincoln, desperate lest Rebel sympathizers in Maryland cut off Washington from the rest of the union , called up the loyalist Maryland militia to defend against the Rebel forces. He declared martial law in Maryland and told General Winfield Scott that, if he found it necessary, he could suspend the right to habeas corpus and summarily detain anyone who acted against union forces.
John Merryman was a sympathizer with the southern cause and a lieutenant in the Maryland militia. He committed acts of destruction and sabotage and was arrested, charged with treason by a Brigadier General in the Union Army and jailed at Fort McHenry near Baltimore. He filed an application for a writ of habeas corpus in the Federal Court presided over by Chief Justice Taney. Taney was a Democrat and hated Abraham Lincoln. He granted the writ and ordered Merryman brought to his court. When the writ was served, the General in charge of Fort McHenry responded with a letter declining to recognize Taney’s writ. Taney issued a writ of attachment ordering a federal marshal to arrest the general and bring him to court. The marshal was denied entry into the Fort. Taney responded with a lengthy opinion castigating Lincoln for arrogantly presuming to possess authority capable of suspending rights protected by the Constitution. Taney quoted from the Declaration of Independence. One of the justifications offered for revolting against King George was that “He has affected to render the Military independent of and superior to the Civil power.”
President Lincoln ignored Taney’s decision as well as several other federal court decisions rendered thereafter agreeing with Taney. Finally, in February, 1862, Lincoln rendered the issue moot by releasing on parole all political prisoners. However, a month later, after Congress refused to grant him authority to suspend habeas corpus, he defiantly suspended the writ throughout the country. The matter was finally settled in March, 1863, when Congress enacted the “Habeas Corpus Suspension Act”.
[An aside: After reading this account of Lincoln’s disdain for the Constitution, I was reminded that Obama admires and has carefully studied Lincoln. I assumed he admired Lincoln’s noble assault on slavery and his wise moderation toward conflicting views. After reading this case, I wonder if my political support of Obama has blinded me to other aspects of his philosophy and admiration of Lincoln which, to me, are not so attractive. ??]
The next case pertinent to the present inquiry was Ex parte Milligan, decided in 1866. Lambdin P. Milligan and several other Southern sympathizers planned to free Rebel prisoners or war held in Yankee prisons, organize them into a military force and take over the governments of Indiana, Michigan and Ohio. He and several of his cohorts were arrested, tried before Military Commissions and sentenced to death for treason. The Civil War ended before the date of Milligan’s executiion. He filed an application for a writ of habeas corpus and the Supreme Court granted his application.
The Court ruled that martial law and trials by military commissions were proper in three situations: First: Military courts or commissions could try members of the armed forces. Second: During a war, a military force occupying enemy territory could try civilians in military courts or commissions during the continuation of the war and until some new government was established. Third: In time of some catastrophe or chaotic event when regular government courts were not available, martial law could be declared and the writ of habeas corpus temporarily suspended.
The Court ruled that Indiana, where Milligan was arrested, was not occupied territory and that trial before a military commission was not proper because the courts were available. Therefore, Milligan’s application was granted, the Court ruled that the trial before a Military Commission was unconstitutional and he was freed.
In Johnson v. Eisentrager, decided in 1945, the Supreme Court held that German soldiers arrested, tried and convicted in China by a military commission of having fought with the Japanese army against United States forces, and later detained in a prison in Germany could not invoke the jurisdiction of an American federal court to hear an application for habeas corpus. The applicants were not American citizens and, at no time had been on any American territory. They were convicted of committing acts of war against the United States after the war against Germany was concluded. Justice Jackson held that persons who were engaged in acts of war against the United States in a foreign land, who were neither American citizens nor aliens located in an American territory, had no right to assert rights protected by the U.S. Constitution.
Ex parte Quirin is the Supreme Court case relied on by Bush and Obama for their authority to deprive “enemy combatants” of any semblance of due process, imprison them indefinitely without any formal charges against them, and to deny or severely limit their access to counsel or to any hearing before an impartial tribunal.
That case involved German saboteurs. Four debarked from a submarine in 1942 at Long Island, New York. The others landed on the east coast of Florida. They wore incomplete German uniforms but changed to civilian clothes after landing. Their mission was to destroy various strategic targets in the United States.
One of the saboteurs, Hans Haupt, was an Ameerican citizen. The other seven were German citizens. They were tried before a military commission, established pursuant to an executive order from FDR and sentenced to death. They were represented by counsel. They filed an application for habeas corpus, challenging the legality of their convictions. The Supreme Court denied their application for a writ of habeas corpus. Six of the applicants were executed. The other two were sentenced to prison terms.
The Court did not deliver an opinion until several months after the executions. Justice Stone delivered a per curiam opinion for a unanimous Supreme Court denying their claims. He based his decision on the fact that war had been declared on Germany; that they were actively engaged in making war on the United States; that they were not soldiers and, therefore, not entitled to treatment as prisoners of war.
The opinion was based on draft opinion written by Justice Jackson. There was unanimous agreement that the applicants were not entitled to a jury trial and that they could be tried by a military commission. The justices were divided on the extent to which Congress could circumscribe the discretion of the President with respect to the trial of the saboteurs. Because the Court concluded that the detention of the Germans was legal and that their trial by a military commission was proper, they found it unnecessary to rule on the procedure followed by the commission or the extent of the President’s authority to order such trials.
Louis Fisher, an expert on the law of war and, especially on the use of military commissions, has written extensively and critically on the procedure followed by FDR concerning these German saboteurs. [See Louis Fisher, “Military Tribunals: A Sorry History”, e.g. . This essay is available online.]
Having read this decision as well as some of the commentary concerning it, I do not think it is a Mother Hubbard clause added to the Constitution granting discretionary authority to the President to ignore the Congress and the Constitution in all situations involving terrorist threats against the United States. It is disturbing to me that our former constitutional law professor President disagrees.
Another Supreme Court case pertinent to some of the issues raised here is U.S. v. Verdugo-Urquidez (1990). The Defendant, a Mexican citizen residing in Mexico, was suspected of smuggling dope into the United States. With the cooperation of Mexican authorities, U.S. law enforcement officials searched his home in Mexico, found evidence of his crimes, arrested him and extradited him for trial in the U.S., where he was convicted. In this appeal, he argued that the search in Mexico violated the 4th Amendment’s protection against “unreasonable searches and seizures”. The Court disagreed, holding that an alien living in a foreign country was not protected by the amendment because it began with the statement that “The right of the people to be secure . . . shall not be violated. . . .” The Court stated that “the people” refers to residents of the United States, not residents of foreign countries.
The Court, however, cited the following distinction: “That text, [the Fourth Amendment] by contrast with the Fifth and Sixth Amendments, extends its reach only to ‘the people.'” (emphasis added) They continued, “Before analyzing the scope of the Fourth Amendment, we think it significant to note that it operates in a different manner than the Fifth Amendment, which is not at issue in this case. “The privilege against self-incrimination guaranteed by the Fifth Amendment is a fundamental trial right of criminal defendants” (emphasis added). ”
In other words, the Court made clear the fact that, if the defendant had been deprived of his Fifth and Sixth Amendment rights, even if the deprivation occurred in Mexico and even though he was a Mexican citizen, that circumstance, if material to his case, might have vitiated his conviction. Because he relied only on a 4th Amendment violation, his conviction was affirmed.
In 2004, the Supreme Court decided Hamdi v. Rumsfeld. Yaser Esam Hamdi was born in Louisiana in 1980. As a child, he moved to Saudi Arabia with his family. In the Summer of 2001, twenty-year-old Hamdi went to Afghanistan to work as a relief worker. He was taken into custody by the Afghan Northern Alliance during the American invasion of Afghanistan. They turned him over to the U.S. Military. He was interrogated and then transferred to Guantanamo. When the authorities there discovered that he was an American citizen, he was transferred to a Navy brig in South Carolina.
His father, as next friend, filed an application for habeas corpus in a federal court. The federal judge conducted a hearing and, after listening to the government’s case, concluded there was no persuasive evidence that Hamdi was an “enemy combatant”. The government appealed and the 4th Circuit reversed, ruling that the court had no jurisdiction to challenge the discretion of the President concerning the treatment of a person accused of having participated in hostile activity during a military invasion. The case was remanded to the district court, which again ruled in Hamdi’s favor. The 4th Circuit again reversed and Hamdi appealed to the Supreme Court.
The Supreme Court took the case and, in 2004, ruled that the government had no right to detain an American citizen without complying with the requirements of due process. A four-member plurality of the Court ruled that “due process” in view of the government’s claim that Hamdi had engaged in active hostilities in a combat zone during a military invasion, did not mean that Hamdi had the rights of a defendant in a peacetime criminal proceeding. They did, however, firmly reject the Bush administration’s claim that federal courts had no jurisdiction to evaluate Hamdi’s treatment. After describing the manner and timing of Hamdi’s arrest and detention, the Court stated: “[W]e necessarily reject the Government’s assertion that separation of powers principles mandate a heavily circumscribed role for the courts in such circumstances. Indeed, the position that the courts must forgo any examination of the individual case and focus exclusively on the legality of the broader detention scheme cannot be mandated by any reasonable view of separation of powers, as this approach serves only to condense power into a single branch of government. We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens. ‘Youngstown Sheet & Tube,’ 343 U. S., at 587. Whatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake. […] Likewise, we have made clear that, unless Congress acts to suspend it, the Great Writ of habeas corpus allows the Judicial Branch to play a necessary role in maintaining this delicate balance of governance, serving as an important judicial check on the Executive’s discretion in the realm of detentions. […] it would turn our system of checks and balances on its head to suggest that a citizen could not make his way to court with a challenge to the factual basis for his detention by his government, simply because the Executive opposes making available such a challenge. Absent suspension of the writ by Congress, a citizen detained as an enemy combatant is entitled to this process.” (emphasis added)
The Court also limited the scope of the “enemy combatant” classification. Here is their language: “There can be no doubt that individuals who fought against the United States in Afghanistan as part of the Taliban, an organization known to have supported the al Qaeda terrorist network responsible for those attacks, are individuals Congress sought to target in passing the AUMF. We conclude that detention of individuals falling into the limited category we are considering, for the duration of the particular conflict in which they were captured, is so fundamental and accepted an incident to war as to be an exercise of the ‘necessary and appropriate force’ Congress has authorized the President to use. […] A citizen, no less than an alien, can be ‘part of or supporting forces hostile to the United States or coalition partners’ and ‘engaged in an armed conflict against the United States,’ […]; such a citizen, if released, would pose the same threat of returning to the front during the ongoing conflict [as an alien].[…] Because detention to prevent a combatant’s return to the battlefield is a fundamental incident of waging war, in permitting the use of ‘necessary and appropriate force’, Congress has clearly and unmistakably authorized detention in the narrow circumstances considered here. […] Under the definition of enemy combatant that we accept today as falling within the scope of Congress’ authorization, Hamdi would need to be ‘part of or supporting forces hostile to the United States or coalition partners’ and ‘engaged in an armed conflict against the United States’ to justify his detention in the United States for the duration of the relevant conflict.”(emphasis added)
To me, this means that when the Afghan war concludes, those alleged to have been “enemy combatants” in that war, must be released. The Court clearly was not willing to agree to an endless “war on terror” to extend the detention powers of the government.
Following this decision, the government made a kind of modified “Br’er Rabbit” deal with Hamdi. They agreed to drop all charges if he would renounce his American citizenship and agree to be deported to Saudi Arabia, where his family lives. He agreed not to travel back to the U.S. or to several other places in the Middle East without approval of the Saudi government. Apparently, they knew full well that they could not prove their accusations against the young man. And, oh yes, he also had to agree not to sue them for having abused and imprisoned him for several years. As Chris Dixie, my law partner, used to say, “These people have no class.”
In Rasul v. Bush (2004), the Supreme Court ruled that citizens of Great Britain and Australia, arrested in Afghanistan and Pakistan during the Afghan war, accused of actively engaged in hostilities against U.S. forces, had due process rights to challenge their detention at Guantanamo. The Court ruled that their citizenship was not determinative of their rights to enforce constitutional limits applicable to the government of the United States; that they could go to federal court to enforce those limits by filing an application for habeas corpus.
After these defeats, Bush and his supporters in Congress crafted a set of rules for military tribunals. That effort tried to render useless the rights of prisoners affirmed by the Supreme Court in Hamdi and Rasul. The Congress also purported to strip the federal courts of jurisdiction to consider challenges to the legality of these measures.
In Hamden v. Rumsfeld (2008), the Supreme Court ruled that those efforts were unconstitutional. The Court ruled that any military tribunal scheme had to comply with the Geneva Convention as incorporated into the Uniform Code of Military Justice. They also disallowed the effort of Congress to deprive them of jurisdiction to enforce the Constitution.
One of the interesting sidelights of the Hamden case was an amicus brief filed by Senators Lindsey Graham and John Kyl. In their brief, the Senators presented an “extensive colloquy” purporting to show that the Congress was aware, when they enacted the “Detainee Treatment Act of 2004”, that it would strip federal courts of jurisdiction to hear challenges to the legality of the Act. The “extensive colloquy” was added to the record after the debate, a detail not mentioned in the Senators’ brief. Again, “no class”.
These cases establish, for me, three propositions: First, the protection of “persons” in the Fifth and Sixth Amendments applies to citizens and non-citizens if their life, liberty or property is being threatened by the United States government. Second: Even if the government accuses a person of having engaged in active hostile acts in a war zone, if the accused person is in a territory subject to the jurisdiction of the United States courts, the accused is entitled to challenge his detention and treatment by filing an application for habeas corpus in one of those courts. Third, neither the Congress nor the President has the right to strip federal courts of jurisdiction to enforce these rights.
The assassination of Anwar Al-Awlaki convinced me that the hazy “Al Qaeda” label, the willfully misunderstood language of the AUMF and the flexible designation of “enemy combatant”, combined with drone technology has finally confronted us with a President and a military/intelligence establishment that threaten our lives and liberty in far more serious ways than any Muslim fanatic is likely to do.
Anwar Al-Awlaki was born in New Mexico. In late September, 2011, drone aircraft controlled from a Middle-East CIA location, fired missiles at a car traveling across a dessert in Yemen. Al-Awlaki and Samir Kahn, both American citizens, were killed. Kahn was the editor of a violently anti-American internet publication, Inspire. Al-Awlaki was a fiery Muslim Imam who used YouTube and emails to preach violently anti-American diatribes, including statements that praised the killing of soldiers and others at Ft. Hood by Nidal Malik Hasan, an Army psychiatrist on November 5, 2009, the acts of a martyr.
The American press has highlighted the fact that, during the months before the Ft. Hood attack, Hasan and Al-Awlaki had exchanged several emails. The emails were initiated by Hasan, in apparent response to Al-Awlaki’s YouTube postings. There is no evidence that Al-Awlaki urged Hasan to kill anyone or that Al-Awlaki helped Hasan plan the attack. The Department of Defense has not charged Hasan as an “enemy combatant” or claimed that he is being held as a prisoner of war. He has been charged with murder and is being prosecuted under the Uniform Code of Military Justice.
On September 11, 2001, Anwar Al-Awlaki was a Muslim preacher at a large mosque in Falls Church, Virginia. He denounced the attack as an outrage, was interviewed on TV, profiled in a piece in the Washington Post and was featured in NPR episodes concerning the 9-11 attacks. When the FBI learned that one or more of the 9-11 attackers had attended a mosque in Los Angeles when Al-Awlaki had been the imam there, he was interviewed and cleared of any wrongdoing related to that circumstance.
The story of how this American Muslim preacher became a target for assassination by an American President is a long and interesting one. I have read two versions of this story. One, written by New York Times reporters, repeats the government’s version. The other, written and narrated by Jeremy Scahill, a writer for The Nation and a longtime correspondent for Democracy Now, the liberal media program presided over by Amy Goodman, is based on information gleaned from non-governmental sources as well as from current and former members of the American intelligence community. The Times’ version generally justifies, with some reservations, the government’s case against Al-Awlaki. When it mentions the gaps in the government’s factual case, it gives the government the benefit of the doubt. Scahill is less forgiving. He also adds many details left out of the Times’ version.
Here are links to a long Democracy Now interview of Jeremy Scahill by Amy Goodman. It is in two parts.
Here is a link to a video of Jeremy Scahill stating his criticism of the government’s handling of the Anwar Al-Awlaki killing. Scahill video
These are long stories. I know that, with busy lives, you may not have time to have read this far in this too-long essay. I understand this. I have indulged myself by writing this and doing this research because I believe that America is, as the neo-cons keep insisting, an exceptional place, but not for the reasons the neo-cons claim. I don’t think our exceptionalism is based on our ability to bully people and nations. We are an exceptional nation because we have declared ourselves willing to accept the substantial risks of being free.
We do not value our safety more than our freedom. We respect our government because it is our creation, based on our authority and subject to a written enforceable contract we drafted and adopted. We did not copy it from a form book. We haggled, raged and argued about it and we refused to agree to it until the first ten amendments were added, but finally, recognizing that it was imperfect and the result of many compromises, we ratified it. Our Constitution and the government it established are unique accomplishments, unmatched in the history of human efforts to govern.
I think some of the core ideas that distinguish America from all other nations are under serious attack by well meaning but nevertheless dangerous people. And, unfortunately, technology has produced the ideal weapons, like drone aircraft, powerful tiny cameras and computers capable of sorting and compiling information about us on a scale impossible to imagine. These weapons, eagerly adopted by those who perceive government’s power as a desirable means of insuring our safety, have caused a perilous imbalance between the force of government and the power of a democratically empowered population. Delegating to military agencies functions traditionally left to civilian law enforcement authority has become an accepted circumstance, claimed to be necessary to insure our safety. Secrecy has been allowed to conceal information that is necessary to alert us to government judgments and choices that threaten our freedom and render impotent the protection we sought when we adopted our Constitution.
After thinking about all this, I had to organize and write some kind of structured statement of my concerns. This enables me to sort out my fears and confront them with pertinent facts. Only then can I say to myself, “This is the way this problem developed. I see how some of the pieces fit together. I now have an outline in my brain, a kind of scaffolding to adorn with future information. I think I can now tell the difference between real peril and distracting rabbit trails.”
Finally, for those of you, if any, who are still with me: I want to share with you a video of a “good ol’ boy”‘s YouTube tirade against the government that finally works up to a justification for killing American soldiers. This is the kind of rhetoric that Anwar Al-Awlaki is accused of using in his YouTube rants. As you watch it, understand that the speaker is the co-owner with his wife of a weapons store and that this is one of 170 videos posted by him on YouTube. See philliptjrYouTube
I think this guy is pathetic, but I damn sure don’t want some drone to drop a bomb or a missile on him. Not in my country. And, by the way, I am aware of the fact that I have just written a tirade of my own about the government. I insist there is an important difference between the two of us: I think it is vital that he be able to say whatever he wants to say. He probably thinks I, with my opinion about our gun culture, ought to be shot.