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发帖数: 1458 | 1 10 reasons the U.S. is no longer the land of the free
By Jonathan Turley, Published: January 13, Washington Post
Every year, the State Department issues reports on individual rights in
other countries, monitoring the passage of restrictive laws and regulations
around the world. Iran, for example, has been criticized for denying fair
public trials and limiting privacy, while Russia has been taken to task for
undermining due process. Other countries have been condemned for the use of
secret evidence and torture.
Even as we pass judgment on countries we consider unfree, Americans remain
confident that any definition of a free nation must include their own — the
land of free. Yet, the laws and practices of the land should shake that
confidence. In the decade since Sept. 11, 2001, this country has
comprehensively reduced civil liberties in the name of an expanded security
state. The most recent example of this was the National Defense
Authorization Act, signed Dec. 31, which allows for the indefinite detention
of citizens. At what point does the reduction of individual rights in our
country change how we define ourselves?
While each new national security power Washington has embraced was
controversial when enacted, they are often discussed in isolation. But they
don’t operate in isolation. They form a mosaic of powers under which our
country could be considered, at least in part, authoritarian. Americans
often proclaim our nation as a symbol of freedom to the world while
dismissing nations such as Cuba and China as categorically unfree. Yet,
objectively, we may be only half right. Those countries do lack basic
individual rights such as due process, placing them outside any reasonable
definition of “free,” but the United States now has much more in common
with such regimes than anyone may like to admit.
These countries also have constitutions that purport to guarantee freedoms
and rights. But their governments have broad discretion in denying those
rights and few real avenues for challenges by citizens — precisely the
problem with the new laws in this country.
The list of powers acquired by the U.S. government since 9/11 puts us in
rather troubling company.
Assassination of U.S. citizens
President Obama has claimed, as President George W. Bush did before him, the
right to order the killing of any citizen considered a terrorist or an
abettor of terrorism. Last year, he approved the killing of U.S. citizen
Anwar al-Awlaqi and another citizen under this claimed inherent authority.
Last month, administration officials affirmed that power, stating that the
president can order the assassination of any citizen whom he considers
allied with terrorists. (Nations such as Nigeria, Iran and Syria have been
routinely criticized for extrajudicial killings of enemies of the state.)
Indefinite detention
Under the law signed last month, terrorism suspects are to be held by the
military; the president also has the authority to indefinitely detain
citizens accused of terrorism. While the administration claims that this
provision only codified existing law, experts widely contest this view, and
the administration has opposed efforts to challenge such authority in
federal courts. The government continues to claim the right to strip
citizens of legal protections based on its sole discretion. (China recently
codified a more limited detention law for its citizens, while countries such
as Cambodia have been singled out by the United States for “prolonged
detention.”)
Arbitrary justice
The president now decides whether a person will receive a trial in the
federal courts or in a military tribunal, a system that has been ridiculed
around the world for lacking basic due process protections. Bush claimed
this authority in 2001, and Obama has continued the practice. (Egypt and
China have been denounced for maintaining separate military justice systems
for selected defendants, including civilians.)
Warrantless searches
The president may now order warrantless surveillance, including a new
capability to force companies and organizations to turn over information on
citizens’ finances, communications and associations. Bush acquired this
sweeping power under the Patriot Act in 2001, and in 2011, Obama extended
the power, including searches of everything from business documents to
library records. The government can use “national security letters” to
demand, without probable cause, that organizations turn over information on
citizens — and order them not to reveal the disclosure to the affected
party. (Saudi Arabia and Pakistan operate under laws that allow the
government to engage in widespread discretionary surveillance.)
Secret evidence
The government now routinely uses secret evidence to detain individuals and
employs secret evidence in federal and military courts. It also forces the
dismissal of cases against the United States by simply filing declarations
that the cases would make the government reveal classified information that
would harm national security — a claim made in a variety of privacy
lawsuits and largely accepted by federal judges without question. Even legal
opinions, cited as the basis for the government’s actions under the Bush
and Obama administrations, have been classified. This allows the government
to claim secret legal arguments to support secret proceedings using secret
evidence. In addition, some cases never make it to court at all. The federal
courts routinely deny constitutional challenges to policies and programs
under a narrow definition of standing to bring a case.
War crimes
The world clamored for prosecutions of those responsible for waterboarding
terrorism suspects during the Bush administration, but the Obama
administration said in 2009 that it would not allow CIA employees to be
investigated or prosecuted for such actions. This gutted not just treaty
obligations but the Nuremberg principles of international law. When courts
in countries such as Spain moved to investigate Bush officials for war
crimes, the Obama administration reportedly urged foreign officials not to
allow such cases to proceed, despite the fact that the United States has
long claimed the same authority with regard to alleged war criminals in
other countries. (Various nations have resisted investigations of officials
accused of war crimes and torture. Some, such as Serbia and Chile,
eventually relented to comply with international law; countries that have
denied independent investigations include Iran, Syria and China.)
Secret court
The government has increased its use of the secret Foreign Intelligence
Surveillance Court, which has expanded its secret warrants to include
individuals deemed to be aiding or abetting hostile foreign governments or
organizations. In 2011, Obama renewed these powers, including allowing
secret searches of individuals who are not part of an identifiable terrorist
group. The administration has asserted the right to ignore congressional
limits on such surveillance. (Pakistan places national security surveillance
under the unchecked powers of the military or intelligence services.)
Immunity from judicial review
Like the Bush administration, the Obama administration has successfully
pushed for immunity for companies that assist in warrantless surveillance of
citizens, blocking the ability of citizens to challenge the violation of
privacy. (Similarly, China has maintained sweeping immunity claims both
inside and outside the country and routinely blocks lawsuits against private
companies.)
Continual monitoring of citizens
The Obama administration has successfully defended its claim that it can use
GPS devices to monitor every move of targeted citizens without securing any
court order or review. (Saudi Arabia has installed massive public
surveillance systems, while Cuba is notorious for active monitoring of
selected citizens.)
Extraordinary renditions
The government now has the ability to transfer both citizens and noncitizens
to another country under a system known as extraordinary rendition, which
has been denounced as using other countries, such as Syria, Saudi Arabia,
Egypt and Pakistan, to torture suspects. The Obama administration says it is
not continuing the abuses of this practice under Bush, but it insists on
the unfettered right to order such transfers — including the possible
transfer of U.S. citizens.
These new laws have come with an infusion of money into an expanded security
system on the state and federal levels, including more public surveillance
cameras, tens of thousands of security personnel and a massive expansion of
a terrorist-chasing bureaucracy.
Some politicians shrug and say these increased powers are merely a response
to the times we live in. Thus, Sen. Lindsey Graham (R-S.C.) could declare in
an interview last spring without objection that “free speech is a great
idea, but we’re in a war.” Of course, terrorism will never “surrender”
and end this particular “war.”
Other politicians rationalize that, while such powers may exist, it really
comes down to how they are used. This is a common response by liberals who
cannot bring themselves to denounce Obama as they did Bush. Sen. Carl Levin
(D-Mich.), for instance, has insisted that Congress is not making any
decision on indefinite detention: “That is a decision which we leave where
it belongs — in the executive branch.”
And in a signing statement with the defense authorization bill, Obama said
he does not intend to use the latest power to indefinitely imprison citizens
. Yet, he still accepted the power as a sort of regretful autocrat.
An authoritarian nation is defined not just by the use of authoritarian
powers, but by the ability to use them. If a president can take away your
freedom or your life on his own authority, all rights become little more
than a discretionary grant subject to executive will.
The framers lived under autocratic rule and understood this danger better
than we do. James Madison famously warned that we needed a system that did
not depend on the good intentions or motivations of our rulers: “If men
were angels, no government would be necessary.”
Benjamin Franklin was more direct. In 1787, a Mrs. Powel confronted Franklin
after the signing of the Constitution and asked, “Well, Doctor, what have
we got — a republic or a monarchy?” His response was a bit chilling: “A
republic, Madam, if you can keep it.”
Since 9/11, we have created the very government the framers feared: a
government with sweeping and largely unchecked powers resting on the hope
that they will be used wisely.
The indefinite-detention provision in the defense authorization bill seemed
to many civil libertarians like a betrayal by Obama. While the president had
promised to veto the law over that provision, Levin, a sponsor of the bill,
disclosed on the Senate floor that it was in fact the White House that
approved the removal of any exception for citizens from indefinite detention.
Dishonesty from politicians is nothing new for Americans. The real question
is whether we are lying to ourselves when we call this country the land of
the free.
Jonathan Turley is the Shapiro professor of public interest law at George
Washington University. |
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