March 9, 2015 § 3 Comments
Forty-seven Republican Party Senators dispatched a letter to the Nation of Iran warning them that any agreement between Iran and the United States negotiated by the President of the United States would be worthless and revocable in two years when a new president is elected. Iran responded to the letter with a classic example of politely, but firmly, labeling the Senators’ letter for what it is: Ignorant meddling into serious business being conducted by competent responsible agents of six nations.
Jay Bookman, columnist and blogger for the Atlanta Journal-Constitution, has commented on this episode in a blog post. It expresses my reaction better than I could. Here is link to his blog post. I urge all readers of this blog to read it.
Oh, by the way, I assume that it is superfluous for me to satisfy your curiosity: Both Texas Senators signed the letter. Texas has replaced Mississippi as a haven for jackasses and launching pad for every stupid governmental policy idea floating around. We have not one, but three Texas Coo-Coo Birds readying themselves for campaigns to become President of the United States. Stay tuned.
Here is a link: Jay Bookman
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.”
June 16, 2013 § Leave a comment
The last four essays posted on this blog concerned different versions and elaborations of my objection to the targeted drone killings and broad surveillance by the Obama administration to locate and capture or kill people who seek to harm the United States. I have included a discussion of a friend’s disagreement with my objections. In the “Comments” section of the third essay, entitled “The Prism of Work”, I copied four sets of those objections and some supporting material related to them. I have also posted an essay by Sam Harris that emphasizes the seriousness of the threat posed by adherents to an extreme form of Islam that offers membership in paradise to any who wreak harm on America.
In the following essay I will contend that, although the threat of harm from terrorists is real, I nevertheless believe we should choose to maintain our safe haven from the dangerous intrusions of our government into our lives as well as its claim of authority to kill people, including American citizens living abroad, based on the secret judgment of a small committee composed of the President and a few of his advisers.
Some Historical Perspective
The Alien and Sedition Acts
Fear of harm from foreigners is a recurring theme in American history. In 1798, just nine years after adopting our Constitution and its Bill of Rights, the Federalist dominated Congress adopted the Alien and Sedition Acts. The Alien Act granted executive authority to the President to force the deportation of any foreign emigrant whom he regarded as “. . . dangerous to the peace and safety of the United States, or shall have reasonable grounds to suspect are concerned in any treasonable or secret machinations against the government thereof,. . . .” A companion act provided that a person would be guilty of “a high misdemeanor” if he should ” . . .unlawfully combine or conspire together, with intent to oppose any measure or measures of the government of the United States, which are or shall be directed by proper authority, or to impede the operation of any law of the United States, or to intimidate or prevent any person holding a place or office in or under the government of the United States, from undertaking, performing or executing his trust or duty, and if any person or persons, with intent as aforesaid, shall counsel, advise or attempt to procure any insurrection, riot, unlawful assembly, or combination, whether such conspiracy, threatening, counsel, advice, or attempt shall have the proposed effect or not. . . .”
President John Adams signed these legislative panic buttons into law.
Thomas Jefferson, the Vice President and opposition leader of the Democratic Party, and James Madison anonymously authored a written , criticism of this legislation, known as “The Virginia and Kentucky Resolutions”, but that did not prevent several people from being jailed pursuant to it. The ACLU would make short work of these laws today, but a court’s right to declare void a law authorizing actions prohibited by the Constitution was not established until 1803, when John Marshall rendered his decision in Marbury v. Madison.
Jefferson won the 1800 presidential election and, after taking office in 1801, he pardoned everyone who had been convicted pursuant to the Alien and Sedition Acts during the Adams administration. The laws were never repealed, however, and Jefferson used them to prosecute a few of his own critics. They have never been formally overruled but later Supreme Court decisions referred to them disparagingly and made clear that, if challenged, they would not survive.
So, what caused the American Congress to cede such sweeping powers to President Adams and thence to President Jefferson? The French Revolution had begun with the assault on the Bastille in 1789. It continued for ten years, during which the French National Assembly adopted “The Rights of Man”, a list of rights that made uncomfortable the landed gentry who were running the fledgeling United States government. The radical French ideas were carried to America by French immigrants and, with support from Jefferson’s Democrats, the Federalists were fearful that some kind of revolution might ensue if these new trouble makers were not restrained. The Whisky Rebellion in Western Pennsylvania in 1792, and the execution of King Louis XVI in 1793 were unsettling to Federalists like Adams. They regarded the French revolutionists in ways similar to the way we fear Muslim terrorists: Foreigners hostile toward our institutions with a proven willingness to use violence to attain their goals.e
The Red Terror
There have been several perceived excuses for abandoning the limits on government. Anarchists mailed bombs to a lengthy list of politicians in 1919. The bombs did not succeed in killing any of the intended recipients, but they did kill some innocent staff members and friends as well as blowing off the hands of one housekeeper.
That, along with some strike violence (caused either by the strike-breaking cops and Piinkertons or by the union strikers, depending on your point of view) and the uneasy reaction to the Russian Revolution that began in 1917, gave Woodrow Wilson and his Attorney General A. Mitchell Palmer, an excuse for the infamous “Palmer Raids” between November 1919 and January 1920. 10,000 people were arrested and over 500 aliens were deported. Palmer authorized the raids but they were directed by J. Edgar Hoover, head of the Justice Department’s Bureau of Investigation’ s “Intelligence Division”.
Congress stoked these activities by adopting a new Espionage Act in 1917. The Act was amended and broadened in 1918. It provided a death penalty for anyone discouraging compliance with the draft. In a 1919 Supreme Court decision, Schenk v. U.S., Justice Holmes concurred in affirming a conviction of a Socialist who distributed pamphlets urging men to resist conscription. In his opinion Holmes coined the “clear and present danger” standard for government suppression of expression, often used by advocates of free speech to defend against censorship but, as stated, he voted to send the pamphleteer to jail. Later that same year, in Abrams v. U.S., he joined Justice Brandeis dissenting in a similar case because, he explained, the pamphlet in that case was “. . . a silly leaflet from an unknown man . . . .” Fortunately for the First Amendment, his “clear and present danger” statement is better known than the “silly leaflet” rule.
The Espionage Act, as amended in 1918, made it a crime for anyone to use “. . .”any disloyal, profane, scurrilous, or abusive language about the form of government of the United States … or the flag of the United States, or the uniform of the Army or Navy”. It authorized the Post Master to intercept any written material he regarded as containing anything prohibited by the Act.
Describing these laws, court decisions and even the out-of-control raids that they enabled do not truly give an adequate picture of the fear and panic that seems to have gripped the political leaders of our country in response to the threat of Bolshevism. The Russian Revolution, like the French Revolution 130 years earlier, was like a icicle stabbed in the heart of this country’s business class. They were concerned about unions and domestic socialists and anarchists but they were confident that those threats could be handled with the usual weapons of government suppression. The fact that a vast country in the world had been taken over by Bolsheviks in command of the Red Army was an entirely different kind of menace.
The Senate appointed Senator Lee Slater Overman to chair a special subcommittee to investigate Bolshevism. He heard testimony for months in 1918 and 1919. His committee finally issued its report in June, 1919. It was hair raising. The June 19, 1919 New York Times ran an eight column full-page spread on the report with the headline, “Senators Tell What Bolshevism in America Means”. The story made clear the fact that if Bolshevism came to America it would be the end of everything. The only evil thing the story failed to associate with Bolshevism was the Black Plague.
These Bolsheviks were not just rearranging the political furniture; they were tearing the government house down and were apparently willing and able to kill or jail the former occupants. This was by God SERIOUS!
I am not old enough to have lived in the decade or so between 1917 and 1929 but, from what I’ve read, the reaction of the corporate business class and the government it presided over to the Russian Revolution was far more fear driven and excessively geared toward government suppression than America’s reaction to 9/11, even with Bush continuously ringing giant alarm bells and Rudy Giuliani, in the words of Joe Biden, conducting a campaign for the Presidency with nothing but “a noun, a verb and nine eleven”.
It is one thing to face the threat of a bomb launched by a foreign enemy, but that does not equal the fearful possibility of an actual invasion and takeover by the bomb launchers. I do not know of any serious evidence that Al Qaeda wants to invade and occupy the United States. They do want us to get out of Saudi Arabia, stop invading their neighboring countries and stop arming their enemies. I do not agree with them. I regard them as murderous misguided zealots. But I don’t see any evidence that they aspire to invade our country.
Actually, of course, the Bolsheviks never tried to invade the United States. Their rhetoric, however, especially from Leon Trotsky, who never deviated from his “permanent revolution” doctrine, was perfectly tuned to produce a cold shiver along the spine of the denizens of Wall Street.
These historical references are my response to those who claim that the threat of harm from Muslim extremists is unique and, therefore, merits extraordinary remedies that have not been necessary in he past. My point is that the real threats we now face are no worse than those we have faced in the past. Our present enemies, as we perceive them, are no worse or fearful than our perceptions of our past enemies. And, while we have survived the foolish damage to our rights done by our past choices to relinquish our freedom in exchange for government’s promise of safety, I will argue that the kind of weapons that government will grasp if we docilely fail to stop this latest encroachment may be impossibly difficult to take back.
The Dangerous Nature of Governmental Metadata
Here is a link to a documentary video produced by Laura Poitras and published by the New York Times. Just wait through the Acura commercial. The ten minute video will give you an idea of the kind of dossier that Uncle Sam probably has on you and me and millions of other Americans. I hope you will then understand that we are not discussing databases containing only your telephone number and the telephone numbers of those with whom you have exchanged telephone calls.
I don’t claim to be an expert on the details of the surveillance programs we are discussing, but here is my understanding: The government for at least the last seven years has been obtaining from each of the suppliers of telephone service in America all of their recorded data consisting of every telephone call made by or to every one of their subscribers. That has been done because the FISA court has given a broad interpretation to a law that entitles government agencies to demand “business records” from any American business if those records are potentially useful to any proper function of the agency. The accumulated records of telephone calls are “business records”, ergo . . . .
Now, we are told by the government that, although they have all this information, they are not permitted to use it to identify any individual unless they have obtained from FISA an order entitling they to do so. And, they are required to have some “particularized suspicion” that the person whose records they access is somehow related to some matter pertinent to the “War on Terror” or whatever that metaphor is called in governmentspeak. My understanding is that they do not have to get a separate warrant for every individual whose records they look at. I understand that FISA’s orders set certain parameters for accessing those record and, within those parameters, the agencies or their contractor agents may use their judgment. And -listen up; this is important – all details of this process especially the parameters and the orders of the FISA court are top secret.
Now, we are not to worry about this secrecy because, as stated, a court [the top secret FISA court, that is] has oversight to prevent any abuses. Also, the Senate Intelligence Committee is also charged with oversight to see to it that this program is conducted according to the requirements of the Constitution and applicable law.
Here is a link to a Cspan video of Senator Ron Wyden of Oregon, a member of the Senate Intelligence Committee, speaking on the Senate floor in support of an amendment he wanted to append to the December 2012 extension of the FISA Amendment Act, which extended the life of FISA for another seven years. The Act was adopted a couple of days later. The chairwoman of the Intelligence Committee, Diane Feinstein of California succeeded in preventing Wyden’s amendment to be added to the bill. This is a long video (over an hour). I’ll tell you what the Senator was upset about: He and some other Congressmen had been trying for over a year to pry information out of NSA concerning the number of American citizens residing in the the United States whose records had been swept up in the metadata accumulation. NSA responded that information was unavailable. They then asked for a rough estimate, either based on the NSA’s records or on estimates made by some other source of information. The NSA refused to respond to that request.
Here is a link to a Mother Jones story about this Senate debate and its outcome.
[If you have time, you should listen to Wyden’s speech. He makes a perfect analogy between NSA’s dragnet approach to acquiring information and the “Writs of Assistance” used by the British to catch smugglers in the American colonies before the Revolution. There was much resistance to the British taxes on imports (“no taxation without representation”) so the Writs of Assistance allowed British agents to search the houses of citizens to see if they had imported goods for which no tax had been paid. Those writs were part of the reason for the Revolution.]
The official position of NSA is that records of domestic telephone users are not “intentionally” acquired, only incidentally or inadvertently acquired. Senator Wyden plainly regards that as nothing but BS and the refusal to grant his request for the facts only confirmed the results of his smell test.
So, given this information, my faith in the checks and balances and oversight that are claimed is equal to my belief in the Easter Bunny.
The “business records” authority, coupled with the AUMF authority, coupled with the Prism program exposed by whistleblower Snowden, means to me that the government already has the capability to know every detail about each of us: our telephone calls, our emails, our internet searches, our credit card purchases, our physical location at any time if we have a cell phone, our motor vehicle IDs . . . and God knows what else. They have this information in a digital database that is searchable and sortable based on algorithms designed by computer geniuses. They ask us to take their word that they will only use that information according to rules that we cannot know, based on court rulings that we cannot know, obtained without any adversarial process to insure that our privacy interests are protected.
This concerns me more than the threat of another 9/11 bomb for the following reason:
Horrific as the bomb will be, its effects will be temporary. We will die or grieve our dead and our country will survive. Digital data is not temporary and foolish misguided patriots, capable of using fear and intimidation to bully political constituencies are ever plentiful. I am not as fearful of the present misuse of this new compilation of information about all of us as I am of the various ways it will be there, like a ticking bomb, waiting for the next demagogue to choose a new target for government punishment or killing. Abortionists? Tax evaders? Political dissenters? Union agitators? Drug dealers? Drug pushers? Drug users?.
In the 60’s I represented two Lee High School kids here in Houston. They, without authorization, put some cans in the cafeteria to collect money for relief for Biafra. They wrote a little newspaper they named the Phlashlyte (I may have the spelling wrong. It was clever.) To get their paper printed they went to a friend at UofH who had access to a copy machine. Their friend was active in SDS (Students for a Democratic Society), then thought of by some as a radical group. They were suspended from school.
I was lucky enough to have my federal suit fall into Woodrow Seals’ Court and he gave me a trial. In the course of that trial I learned that the Houston Police Department had an “intelligence division” to keep track of “subversive” organizations. Houston ISD high school principals made weekly reports to these cops concerning any “suspicious” activity they observed. The Lee High School coach found the kids handing out copies of their newspaper, grabbed their papers and drove them away from the school grounds.
Woodrow granted an injunction designed to stop the harassment. The kids returned to school and, I suppose, went on with their lives. A couple of years later, another high school student was selling Space City News, a local underground newspaper, before school but near school grounds. The principal came out and told him he had to stop or the police would be called. He replied, “Fuck you and fuck the pigs!” He was suspended. I returned to Woodrow’s court to enforce his injunction. He ordered the kid back to school. He finished, got his diploma and went to A&M. HISD appealed Woodrow’s ruling to the Fifth Circuit. They ignored all my First Amendment arguments and ruled that, because of his disrespectful response to the Principal, he did not have “clean hands” and, hence, was not entitled to any relief.
My motion for rehearing was so disrespectful that my law partner required me to edit it severely before filing it. It did no good, of course. The Fifth Circuit left Woodrow’s injunction in force, so the only person left frustrated was me. My client, I suppose, got a degree at A&M and probably became a Republican.
The reason I mention this experience is that local law enforcement agencies already share federal databases [NCIS, e.g.] to assist them in apprehending criminals. It is an obvious next step for that kind of cooperation to include some or all of this new metadata treasure trove of information. It will occur, of course, after some especially horrific criminal episode involving dead children, raped women or similar outrage. When someone like me protests, he or she will be accused of lack of concern for the victims and their families. If the cooperation is disclosed by a whistle blower, he or she will be demonized. But the dossiers will be out there in the cloud, accessible to our vaunted “first responders”. Then, forget about the Fifth Amendment’s protection against self-incrimination. Everyone will have already “incriminated” themselves for every misdeed they ever committed or thought about.
When the government has this amount of information about everyone, the limits imposed by the Constitution don’t work.
There is only one solution to this problem: The databases must be destroyed under the close supervision of a federal court. The data must be erased and the medium containing it must be burned or crushed. There is no safe place for this kind of government metadata.
I know. That same data will still be in the digital vaults of private businesses. But private businesses do not have drones and guns and badges and military forces. They have only greed. I can live with greed. It comes with capitalism and dealing with that problem can await another day.
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.