“I think it is critical for us to understand that Guantanamo is not necessary to keep America safe. It is expensive. It is inefficient. It hurts us in terms of our international standing. … The fundamental concept in any legal system is that one is innocent until proven guilty. In this case you have people who have not even been charged. … I’ve seen several cases where the evidence did not support the accusation. When those cases were moved forward to trial level, federal judges ruled in favour of the prisoners in over 75 percent of the cases. I am not saying that there aren’t any criminals at Guantanamo. If they are suspected criminals, they should be charged in a court of law that recognises the basic principles of fair process: presumption of innocence, no secret evidence, reliable evidence not extracted under torture. … The U.S. government is reluctant [to bring Guantanamo detainees to court] because if you have torture, the case does not fly in court. All the prisoners of Guantanamo have been tortured one way or another.
“I think it is critical for us to understand that Guantanamo is not necessary to keep America safe. It is expensive. It is inefficient. It hurts us in terms of our international standing. …
The fundamental concept in any legal system is that one is innocent until proven guilty. In this case you have people who have not even been charged. …
I’ve seen several cases where the evidence did not support the accusation. When those cases were moved forward to trial level, federal judges ruled in favour of the prisoners in over 75 percent of the cases.
I am not saying that there aren’t any criminals at Guantanamo. If they are suspected criminals, they should be charged in a court of law that recognises the basic principles of fair process: presumption of innocence, no secret evidence, reliable evidence not extracted under torture. …
The U.S. government is reluctant [to bring Guantanamo detainees to court] because if you have torture, the case does not fly in court. All the prisoners of Guantanamo have been tortured one way or another.
— Ramzi Kassem, lawyer who represents seven detainees of various nationalities at Guantanamo and one at Bagram Air Base, Afghanistan.
Amidst all the justified outrage over the apparent targeting of Tea Party and conservative groups by the IRS, not to mention the Associated Press phone tapping brouhaha, an important point is being lost: this is nothing new. The Tea Partiers may be shocked – shocked! – that the Big Government they have spent the last few years complaining about really is a threat to our liberties, but the government targeting certain political groups wholly on account of their views is hardly breaking news. …
The Tea Partiers’ problem is that their protests come far too late – because the legal and political precedents targeting dissident groups were established long ago, with the full complicity and even enthusiastic support of most of those who call themselves “conservatives” these days. The“Patriot” Act – passed with conservative support – gives the government the “right” to not only spy on such groups, it also gives them the means to spy on anyone, for any reason, as well as the prosecutorial “tools” to put them away forever. Law enforcement agencies have set up “fusion centers” in order to collect information on American citizens who might be considered a “threat.” A recent report on “right-wing extremism” issued by the Department of Homeland Security” listed groups local law enforcement should keep tabs on, including members of the Libertarian and Constitution parties, as well as Ron Paul supporters. Efforts by the FBI and local police to infiltrate and set up members of the “Occupy” movement have been widespread. …
This is the way our civil liberties are continually eroded, with virtually no pushback when the government singles out, demonizes, and tries to destroy a targeted group. When the government went after David Koresh and his followers at Waco, liberals were either silent or else actively cheerleading the slaughter. When the headquarters of MOVE, a Philadelphia black nationalist group, was bombed, and the entire neighborhood decimated, not a peep of protest was heard on the right. When the Tea Partiers complain about being targeted, and Rand Paul launches a filibuster conjuring up images of Americans being targeted by drones on American soil, liberals and their media megaphones descry the “black helicopters crowd” and talk about the “paranoia” of the “far right.” When it’s the liberals and the left warning about the dangers of an encroaching police state in the age of terrorism, conservatives start ranting about how “terrorist-loving” liberals and the ACLU are out to destroy America.
While right and left go at each other, the machinery of repression is being readied. The most recent – and chilling – example: a recent Pentagon-initiated change to the US Code would give military commanders powers equal to the President in wartime. As the revised language of the Code puts it:
“Federal military commanders have the authority, in extraordinary emergency circumstances where prior authorization by the President is impossible and duly constituted local authorities are unable to control the situation, to engage temporarily in activities that are necessary to quell large-scale, unexpected civil disturbances.”
When is it “impossible” for the President to duly authorize military action? This is never defined. What is “temporary”? This, too, goes undefined. And what about the Insurrection and Posse Comitatus Acts which limit and regulate the manner in which the military may intervene in domestic affairs? The revised regulations eviscerate both acts, and throw the door wide open to rule by the military in an ill-defined “emergency.” And hardly anybody notices!
That’s the state of civil liberties in the US these days: the government is spying on reporters, IRS agents are harassing political activists, FBI agents are raiding antiwar organizations, and the Pentagon is busy getting the legal machinery up and running in the event they feel the need to impose martial law. The reason they can get away with this, politically, is because the right doesn’t care if the government comes down hard on the left, while the left openly agitates for the instruments of repression to be used against the right. There is no sense that we’re all in this together: that if the government can move against the Tea Partiers, then the antiwar activists are next. It’s all about whose ox is being gored – not whether our liberties are endangered by a regime emboldened by unaccountable power.
[T]his document helpfully underscored the critical point that is otherwise difficult to convey: when you endorse the application of a radical state power because the specific target happens to be someone you dislike and think deserves it, you’re necessarily institutionalizing that power in general. That’s why political leaders, when they want to seize extremist powers or abridge core liberties, always choose in the first instance to target the most marginalized figures: because they know many people will acquiesce not because they support that power in theory but because they hate the person targeted. But if you cheer when that power is first invoked based on that mentality - I’m glad Obama assassinated Awlaki without charges because he was a Bad Man! - then you lose the ability to object when the power is used in the future in ways you dislike (or by leaders you distrust), because you’ve let it become institutionalized.
Related: “[V]oters are enablers…”
Sen. Rand Paul Introduces Amendment to Rein in FDA Abuse - 05/23/12
“Paul’s amendment to the Prescription Drug User Fee Act has two parts: Part I would allow the makers of health products to advertise their benefits. “There’s no earthly reason why somebody who markets prune juice can’t advertise it helps with constipation,” Paul said. Part II of the amendment would prohibit FDA employees (as well as all other Health and Human Services employees) from carrying weapons and making arrests without warrants.”
“I think we have too many armed federal agencies, and that we need to put an end to this. Criminal law seems to be increasing, increasingly is using a tool of our government bureaucracy to punish and control honest businessmen for simply attempting to make a living.
Historically the criminal law was intended to punish only the most horrible offenses that everyone agreed were inherently wrong or evil, offenses like rape, murder, theft, arson – but now we’ve basically federalized thousands of activities and called them crimes.”
Update: The amendment failed 78-15
Any common sense legislation that restores liberty to individuals and/or strips some power from the state is likely to receive bi-partisan opposition.
This is good.
Lawmakers back indefinite detention for terror suspects in US
The House of Representatives defeated a proposed amendment to the National Defense Authorization Act for Fiscal Year 2013 that would have required those detained in the United States to be tried in civilian courts. The amendment was supported by more liberal Democrats and more libertarian Republicans. The most prominent opposition to the amendment came from the rest of the Republicans.
Many of my more libertarian friends are at least as outraged as I am over current U.S. law involving detention. And it’s nice to see some principled Republicans breaking party lines on this one. But … I think we need to be clear on how the party lines are drawn.
* Nineteen Republicans opposed indefinite detention. Two hundred and nineteen supported it. On the Democratic side, the numbers were flipped. Nineteen opposed the amendment and one hundred sixty-three supported it. In other words, the Democrats overwhelmingly supported it and a few libertarians-leaning Republicans joined them. If you’re voting party-line Republican, this is one of the things your guys are supporting.
* The Obama administration has threatened to veto the law over concerns about the detainee provisions. We can anticipate that the administration will do the same thing it’s done in the past with veto threats. Specifically, Obama will get some better-than-nothing concessions and grudgingly sign the bill. It’s fine to be disappointed if the concessions aren’t enough—but if you end up voting for Romney, you’re voting for the guy who won’t even ask for that much.
* The judge who recently declared a portion of the 2012 NDAA unconstitutional was an Obama appointee. The judge the Republicans would appoint is likely to have a much more expansive view of executive power. (Yes, even applies to a judge Ron Paul would appoint. Unless Paul takes a personal interest in the judicial philosophy of every appointee, his role in selecting judges to be appointed likely gets delegated to the hangers-on. In other words, you get a run-of-the-mill conservative jurist.)
I fall into the category of libertarians who are outraged “over current U.S. law involving detention,” and I’m on board with the vast majority of this post.
However, I have to object to the bit about Obama’s supposed concern for the NDAA provisions for indefinite detention. First, after threatening to veto the original 2012 bill, he backed down and ultimately signed it into law. I don’t know how many concessions he got, but the bill was still really crappy on this issue. But, even if there was a good reason to cut him some slack on that, have you read his statement of objections to the detention provisions in the 2013 bill? I have, and they’re not what you portray them to be here.
I’ve written on the subject of the 2013 bill at length, but here I’ll try to be a bit more brief since we’re looking at just this one aspect, and in particular Obama’s objections. Here’s the actual text of his statement (only the relevant part about detention, and I’ve added paragraph breaks for readability):
Detainee Matters: The Administration strongly objects to sections 1035-1043, which would continue and in some cases expand unwise restrictions that would constrain the flexibility that our Nation’s armed forces and counterterrorism professionals need to deal with evolving threats.
Section 1035, which would prohibit any detainee who has been repatriated to Micronesia, the Marshall Islands, or the Republic of Palau from traveling to the U.S., is unnecessary and could undermine our relations with a friendly government whose citizens may serve in the U.S. military.
Sections 1036, 1037, 1038, and 1043 unnecessarily renew, supplement, or enhance the restrictions on the transfer of Guantanamo detainees into the United States or a foreign country. The Administration continues to strongly oppose these provisions, which intrude upon the Executive branch’s ability to carry out its military, national security, and foreign relations activities and to determine when and where to prosecute Guantanamo detainees.
Likewise, the Administration opposes the notice and reporting requirements in sections 1040, 1041, and 1042, which would unnecessarily complicate and potentially compromise military operations and detention practices – including aboard naval vessels at sea. These sections, like section 1039, would also greatly add to the military’s administrative burden.
Section 1041 is an unprecedented, unwarranted, and misguided intrusion into the military’s detention operations in a foreign combat theater during an active armed conflict. The reporting requirements seek to micromanage the decisions of experienced military commanders and diplomats, threaten to compromise the Executive’s ability to act swiftly and flexibly during a critical time for transition in Afghanistan, and could deter or jeopardize the success of effective foreign prosecutions.
Sections 1036, 1037, and 1041, moreover, would, under certain circumstances, violate constitutional separation of powers principles. If the final bill presented to the President includes provisions that challenge critical executive branch authority, the President’s senior advisors would recommend that he veto the bill.
Now, a couple points:
1. It is actually Sections 1032 and 1033, which are not mentioned at all in the President’s list of objections (ctrl + f that for yourself), that deal with indefinite detention and habeas corpus rights. In other words, Obama has a lot of objections about the way the 2013 NDAA regulates detention, but he has nothing to say about its tricky wording on indefinite detention. Indeed, he has no stated objections to indefinite detention at all.
2. As I wrote in my first post on this subject, some of Obama’s objections make sense. For instance, I too don’t see why we need a law saying that if you were in Gitmo, and then you were released to Micronesia, you can never come to the U.S. I don’t know why you’d want to, but hey, go for it. I agree with the Administration that this “is unnecessary and could undermine our relations with a friendly government.” You know us libertarians are all about the making friends and trading with people.
3. But — and this is an important but — most of Obama’s objections are not so reasonable. They’re primarily concerned with impediments in the form of restrictions and paperwork on his flexibility to try, transport, and otherwise treat detainees how he sees fit. For example, he objects to Sections 1040 to 1042, which require stuff like telling the Senate Committee on Armed Services and the House Committee on Armed Services if detainees are captured or transferred under various circumstances. The White House states that this “would unnecessarily complicate and potentially compromise military operations and detention practices.”
As I wrote before, I’m all for simplicity in government five times as much as the next guy, but given the history of abuse of detainees’ rights and persons, this additional transparency might not be the worst thing. Of course, I have no illusions that these congressional committees will use these reports to become champions of individual rights.
That said, it primarily strikes me as ridiculous that anyone in this (or, for that matter, the previous) Administration could complain about a lack of flexibility in dealing with detainees. How much more leeway to arrest (often by mistake), hold without charge or trial, and even torture people could anyone need?
So, of Obama’s objections you wrote that the Administration ”has threatened to veto the law over concerns about the detainee provisions,” and that the threat will result in some lame concessions and a signature, but Romney would be worse. I agree that Romney (for whom I will not be voting) has evidenced no concern for the rights of detainees and evinced no willingness to consider that the U.S. military may be mistaken in its capture and treatment of terror suspects. Romney’s (and most of the GOP’s) foreign policy is terrible, end of story. But it is inaccurate to suggest that Obama’s veto threats are out of concern for anything but his own policy flexibility, as indeed his own statement makes extremely clear.
While Rep. Justin Amash Pushes His Amendment to the National Defense Authorization Act, A Judge Has Temporarily Blocked Portions of the NDAA on First and Fifth Amendment Grounds →
On Wednesday, a federal judged blocked Section 1021, (AKA the indefinite detainment provision) of the the highly controversial National Defense Authorization Act (NDAA). U.S. District Judge Katherine Forrest agreed with journalist Chris Hedges, writer Noam Chomsky, Mr. Pentagon Papers Daniel Ellsberg, and several other plaintiffs who argued in January that the NDAA might just have a chilling effect on free expression. Forrest also agreed that it violated the Fifth Amendment right to due process and that the thing just didn’t “pass Constitutional muster.” …
Meanwhile, scrappy young Congressman and advocate for actually reading bills before he votes on them, Justin Amash, is preparing to speak on the House floor about his (and Democrat Adam Smith’s) amendment to the NDAA. The amendment, which would explicitly say that the NDAA cannot apply to accused domestic terrorists, could potentially come up for a vote as early as Friday. Rep. Ron Paul is a fan, but the number of supporters are seemingly fairly small.
Did you know that the United States government is using drones to kill innocent people in Pakistan? Did you know that the Pakistani government has asked President Obama to stop it and he won’t? Did you know that Pakistan is a sovereign country that has nuclear weapons and is an American ally? …
The Constitution limits the presidential use of war powers to those necessary for an immediate defense of the United States or those exercised pursuant to a valid congressional declaration of war. In this case of Pakistan, the president has neither. And international law prohibits entering a sovereign country without its consent. But [White House counterterrorism adviser John O.] Brennan argued that the Authorization for Use of Military Force (AUMF), which Congress enacted in 2001 in the aftermath of 9/11 to enable President Bush to pursue the perpetrators of 9/11, is essentially carte blanche for any president to kill whomever he wants, and that the use of drones, rather than the military or rather than arresting those the government believes have conspired to harm us, is a “surgical” technique that safeguards the innocent.
Attorney General Eric Holder made a similar unconstitutional argument a few months ago when he stated in defense of the president’s using drones to killAmericans in Yemen that the AUMF, plus the careful consideration that the White House gives to the dimensions of each killing and the culpability of each person killed, somehow satisfied the Constitution’s requirements for due process.
What monstrous nonsense all this is. These killings 10,000 miles from here hardly constitute self-defense and are not in pursuit of a declaration of war. So, what has Congress done about this? Nothing. And what have the courts done about this? Nothing.
Prior to the president’s ordering the killing of the New Mexico-born and unindicted and uncharged Anwar al-Awlaki, al-Awlaki’s American father sued the president in federal district court and asked a judge to prevent the president from murdering his son in Yemen. After the judge dismissed the case, a CIA-fired drone killed al-Awlaki and his American companion and his 16-year-old American son.
In his three-plus years in office, Obama has launched 254 drones toward persons in Pakistan, and they collectively have killed 1,277 persons there. The New America Foundation, a Washington think tank that monitors the presidential use of drones in Pakistan, estimates that between 11 and 17 percent of the drone victims are innocent Pakistani civilians. So much for Brennan’s surgical strikes. So much for Holder’s due process.
The president is waging a private war against private persons — even Americans — whose deaths he obviously believes will keep America safe. But he is doing so without congressional authorization, in violation of the Constitution, and in a manner that jeopardizes our freedom.
Who will keep us safe from a president who wants to use drones here? How long will it be before local American governments — 313 of which already possess drones — use them to kill here because they are surgical and a substitute for due process? Can you imagine the outcry if Cuba or China launched drones at their dissidents in Florida or California and used Obama’s behavior in Pakistan as a justification?
How long will it be before even the semblance of our Constitution is gone?
At present, doggies are not only furry, friendly and cute as the dickens, but legally untouchable. If a drug detection dog alerts, a big neon sign pops up screaming probable cause to search, and there’s nothing to be done about it. The dog only gets it right 3.2% of the time? So what? It’s a dog, and the law loves dogs.
Ever since the TSA adopted its mandatory molestation policy for anyone flying in American airspace, the agency’s apologists have trotted out the same timeworn excuse: “If you don’t like it, don’t fly!”
Now it looks like they’ll have to update it: “If you don’t like it, don’t travel on any public (sic) roadways!”
Last week, on the day before Good Friday, the Department of Homeland Security in conjunction with TSA’s snakelike VIPR squads held a mass checkpoint on the Hampton Roads Bridge-Tunnel … connecting the cities of Hampton and Norfolk, Virginia.
[L]ocal commenters at the Travel Underground forum reported delays of 90 minutes.
Old conventional wisdom: get to the airport two hours early, to give TSA sufficient time to violate your constitutional rights before boarding.
New conventional wisdom: drive to any location 90 minutes early, to give TSA sufficient time to violate your constitutional rights en route. …
And, of course, commuters must be polite and respectful to the TSA, no matter how stressed out they are over things like “Dammit, my boss will fire me for being late!” or “Crap, my final exam starts in ten minutes and I’ll fail the class if I don’t take it!” If you’re rude to the TSA, you’ll be arrested on some catchall charge like “disorderly conduct,” and the Supreme Court has already ruled in favor of mass strip-searches of all people arrested for even the most minor of offenses.
So, even though the charges against you will most likely be dropped, you’ll still undergo the humiliation of being forced to strip, squat, spread ’em and show the emptiness of your various orifices. The consequences for disobedience grow harsher every day.
Can I call the USA a police state now, without being accused of hyperbole?
Can the president kill an American simply because the person is dangerous and his arrest would be impractical? Can the president be judge, jury, and executioner of an American in a foreign country because he believes that would keep America safe? Can Congress authorize the president to do this? …
If the president can kill an American in Yemen, can he do so in Peoria? Even the British king, from whose tyrannical grasp the American colonists seceded, did not claim such powers. And [they] fought a Revolution against him.
Barack Obama rarely indulges in public displays of dictatorial arrogance. He leaves this to underlings like Eric Holder, Leon Panetta, FBI Director Robert Mueller, and Senate Majority Leader Harry Reid. In testimony before separate congressional committees on the same day (March 7), Panetta and Mueller made clear the president’s view that his power to kill people – both at home and abroad – is not subject to congressional checks or legal restraints of any kind.
In testimony before the Senate Armed Services Committee, Secretary of Defense Leon Panetta pointedly refused to recognize that Congress, not the president, has the constitutional authority to commit the United States military to war overseas. Panetta provoked outrage among conservatives by claiming that the UN Security Council or NATO could authorize military intervention abroad. However, less attention was paid to the fact that Panetta’s formulation cut Congress out of this matter entirely – a logical and predictable extension of the Bush administration’s claim that the president, in his role as Grand and Glorious Decider, has plenary authority to wage war wherever he chooses, against whatever target he selects.
On the same day, FBI Director Robert Mueller was asked about Holder’s claim – made before an audience of law students at Northwestern University a few days earlier – that the president can order the execution of American citizens without trial or due process of any kind. Mueller was specifically asked if that applies to Americans living at home, as well as abroad. He artlessly ducked the question by claiming he would “have to go back” and check if it was addressed in administration policy.
The president has not been granted authority to order the assassination of anyone, of course. Doing so is (in descending order of seriousness) an act of criminal homicide and an impeachable offense. Or at least it would be considered as much by anybody other than those who subscribe to the perverse idea that the president is a figure who transcends the law, who “unassailable holds onto his rank,” irrespective of the moral nature of his actions.
This was the essence of Eric Holder’s detestable claim that a presidential kill order, made in secret on the recommendation of an anonymous, unaccountable panel of underlings, satisfies the requirement of “due process.” That vile notion was reiterated by Senate Majority Leader Reid in a March 11 CNN interview. …
Louis XIV’s famous self-description was "L’etat, c’est moi" (“I am the state”). His final pre-Revolution successor, Louis XVI, offered a similar summation of his view of the law: “C’est legal parce que je le veux" ("It’s legal because I will it"). Royal absolutism of this kind, after being refined in the crucible of revolution, was eventually remolded into the basic tenets of totalitarianism – a system, Lenin said, that rested on "Power without limit, resting directly on force, restrained by no laws, absolutely unrestricted by rules."
Lenin would recognize in value of Holder’s sophistical distinction between “due process” and “judicial process” an effort to abolish any remaining legal limits on the lethal power of the State, as incarnated in the Dear Leader. He would admire the audacity displayed by the Obama administration (as well as its predecessor) in asserting the unlimited power of the executive to kill, torture, and imprison people at whim. He would covet the instruments of mass annihilation wielded by the executive branch, and its equally destructive apparatus of mass indoctrination. And he might even spare a moment of incredulous pity for a population that is ruled by such a system while clinging to the illusion of freedom.
I highly recommend clicking above to read Greenwald’s three cases, but here’s the takeaway:
The Rules of American Justice are quite clear:
(1) If you are a high-ranking government official who commits war crimes, you will receive full-scale immunity, both civil and criminal, and will have the American President demand that all citizens Look Forward, Not Backward.
(2) If you are a low-ranking member of the military, you will receive relatively trivial punishments in order to protect higher-ranking officials and cast the appearance of accountability.
(3) If you are a victim of American war crimes, you are a non-person with no legal rights or even any entitlement to see the inside of a courtroom.
(4) If you talk publicly about any of these war crimes, you have committed the Gravest Crime — you are guilty of espionage – and will have the full weight of the American criminal justice system come crashing down upon you. …
It’s long past time to rip those blindfolds off of the Lady Justice statues. When the purpose of American justice is to shield those with the greatest power who commit the most egregious crimes, while severely punishing those who talk publicly about those crimes, it’s hard to imagine how it can get much more degraded or corrupted than that.
The U.S. Supreme Court has unanimously decided today to uphold citizens’ Fourth Amendement rights in the GPS tracking case which would have allowed the U.S. government to track a suspects’ cars without a warrant. The court states that the Fourth Amendement’s protection of “persons, houses, papers and effects, against unreasonable searches and seizures,” extends to vehicles.
According to the ruling (PDF version here), a warrant is required “[w]here, as here, the government obtains information by physically intruding on a constitutionally protected area,” including a car.
The case stems from a case involving the nightclub owner Antoine Jones, who was sentenced to life in prison for drug dealing before the appeals court overturned the ruling. The government had installed a GPS device on the suspect’s Jeep, which led to his later arrest. The government tracked Jones over four weeks in order as a part of its case proving Jones was distributing cocaine and storing it and money in a suburban house outside Washington D.C.
In today’s ruling, five Supreme Court justices, Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas, Sonia Sotomayor, and Chief Justice John Roberts, agreed that attaching a GPS to a car would violate a person’s Fourth Amendment rights. The other four justices, led by Samuel Alito, agreed in the Jones judgement itself, saying that the move to attach the GPS violated Jones’ “reasonable expectations of privacy.” All judges agreed that GPS tracking should require warrants, which upheld the appeals court decision.
The ruling will have a serious impact on police investigations going forward, as GPS tracking has become a common means of obtaining information on a suspect’s movements.
The case had Big Brother-esque implications, however, despite the Justice Department’s argument that the government was not after “24-hour surveillance of every citizen in the U.S.” The idea that the government walk up to your driveway and plant a GPS device (originally a military technology) on your car, had left many with a feeling of unease.
Even though I don’t think the justices deserve much credit for this, seeing as the correct ruling was so obvious, I was actually expecting this case to go the other way, so I’ve gotta give credit where some credit is due.