The Bill of Rights, The Price We Pay for Freedom

The National Defense Authorization Act (NDAA) has now passed through committee and is working its way through both Houses of Congress towards the president’s desk.  S1867, the Senate version of the bill, raised serious civil liberties concerns that have yet to be adequately answered. Initially the President threatened a veto, but since the bill emerged from the House –Senate conference committee on Monday, the White House has yet to say whether the threat still holds. Several senators that raised civil liberties objections, including Diane Feinstein, D-CA, had a hand in the rewrite in committee. But in a pattern that continues to trouble neither the Obama Administration nor Congress has released the final language, so it is unclear how far Congress has gone to resolve the situation constitutionally. One should not hold their breath.

Previous to the conference committee report, two key provisions of the Senate Bill presented a direct attack on the privileges of American citizens contained in the Bill of Rights. According to the Huffington Post, “Sec. 1031 of the Senate bill would authorize indefinite military detention of suspected terrorists without protecting U.S. citizens' right to trial. Sec. 1032 of the Senate bill would require that suspected foreign terrorists be taken into custody by the military instead of civilian law enforcement authorities…” Of course it would matter little to those held indefinitely without charge or trial if they were held by the military or civilian authorities, but there can be little doubt that the military provision is specifically designed to create legal cover to bury suspected terrorists away from the press and civilian authorities. 

This is no small matter. In the years that followed 9-11, the record of American and other western powers in securing the rights of suspected terror subjects is lengthy and poor. In addition to waterboarding and other “enhanced” interrogation techniques, it has been well documented that certain detainees were shuttled from one overseas prison to another, as authorities tried to stay one step ahead of legal authorities across the globe. Under Clinton the CIA initiated the Rendition program. Through two terms a couple dozen people were captured and moved through the program. In an indication of what happens when protections promised by one Administration are passed to the next, after 9-11 the CIA moved more than 3,000 detainees through the program during the Bush years. Assurances on torture were requested, but according to a lengthy article in the Journal of Strategic Security (http://scholarcommons.usf.edu/cgi/viewcontent.cgi?article=1100&context=jss) “It was determined that in certain cases, the United States Government seized persons and transferred them to countries where torture was common in detention facilities, leading some to call extraordinary rendition policy ‘outsourcing torture’”. This is not to cast aspersions on all law enforcement or military personnel, but the protections encoded in the Constitution and Bill of Rights are there specifically to protect citizens from the power of government, not just sometimes, but all the time, and especially when the government feels under threat and is most likely to act undemocratically and precipitously.  

It should not be assumed that every prisoner caught up in the Rendition program was an innocent, Khalid Sheikh Mohammed for example. But with thousands of detainees in a program operated outside the view of American courts and the press, bad things happen. Khaled al Masri was one such case.  According to the JSS article, “Al Masri, a Lebanese-born German citizen, was captured while vacationing in Macedonia in 2003... Allegedly, in court documents filed by al Masri and his legal team, al Masri was detained and tortured for nearly six months by the United States in Afghanistan. He was released in 2004 without explanation, let alone any specific criminal charges… Al Masri has since returned to Germany and filed legal action against the United States for cruel, inhumane, and degrading treatment.”

Perhaps I read it wrong, but it seems holding US citizens without charges or trial would be problematic in the context of the 5^th and 6^th Amendments to the Constitution contained in the Bill of Rights. The 5^th Amendment says in part, “ No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger…” The 6^th goes on, “ In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.” You know that whole jury of your peers deal. I printed the all of the language from the 5^th pertaining to being held without trial or charge because the framers did include language separating military cases from civilian ones.

I understand that there are those that would, and have, made the case that these are extraordinary circumstances with military-type attacks are carried out by civilians. But what is also extraordinary is the extent to which Constitutional law has been evaded, and rights guaranteed in the Bill of Rights have been ignored, and the extent to which all of this has been met by a collective yawn by the media and most politicians, save Ron Paul.   

The Patriot Act which Obama signed an extension of in May of this year, was ratified by the Senate 72-23 and the House 250-153. That is not a not a partisan cliff hanger. That is a 2/3-plus majority voting to allow the FBI to search email and phone records of American citizens by merely stating the subject is the target of a terrorist investigation.  In addition according to the ACLU, “the Patriot Act allows the FBI to force anyone at all - including doctors, libraries, bookstores, universities, and Internet service providers - to turn over records on their clients or customers”. The ACLU continues, “Judicial oversight of these new powers is essentially non-existent. The government must only certify to a judge - with no need for evidence or proof - that such a search meets the statute's broad criteria, and the judge does not even have the authority to reject the application.

Surveillance orders can be based in part on a person's First Amendment activities, such as the books they read, the Web sites they visit, or a letter to the editor they have written. 

A person or organization forced to turn over records is prohibited from disclosing the search to anyone. As a result of this gag order, the subjects of surveillance never even find out that their personal records have been examined by the government. That undercuts an important check and balance on this power: the ability of individuals to challenge illegitimate searches.” So there quickly and painlessly, the Patriot Act eviscerates the first amendment both for those on the right and the left. All Americans have rights, or none do.

In another area the FAA has authorized 266 licenses for civilian use of unmanned drones, much in demand by police forces across the country, over American soil. It is not hard to see what a small drone, monitored by local police, flying over your back yard at a height of 200 feet does to your 4^th amendment protection against illegal searches: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

In academia speech rights of both the left and right are attacked. Americans no longer seem to believe that speech is the appropriate response to hatred or bigotry, or just plain stupidity. I long for the days when Phil Donahue would invite skinheads to his show and let America decide. Both right and left argue for restricted speech and count on big brother, and their emissaries in the media to monitor and punish the opposition. Sharpton went after Don Imus in the same way that Glen Beck, O’Reilly and the rest of the yahoo chorus attacked the building of a Mosque near Ground Zero. Both barely slow down at the first amendment markers they crush on their way to righteous indignation. While I recognize both have the right to dissent loudly from their chosen enemies, I make the point here because both would choose to silence those they choose as enemies rather than debate positions or dialogue honestly. Neither party seems willing now to accept the maturity or sophistication of the public. Everyone assumes that they know better.  Right and left both claim to speak for all of America when they tell us what is funny or course or inappropriate.  Richard Pryor and George Carlin blazed a trail now paved with petty swearing and narrow-minded pedestrian hacks travelling safely down the middle of the road. Americans cannot be trusted after all to turn off that which we disapprove. The thought police will do it for us by applying freely permitted first amendment pressure on sponsors.

So I get confused sometimes when I ponder what American stands for, and what passes for rights in the United States at the beginning of the 21^st century. For some willful ignorance has become a platform on which they raise themselves. Being informed does not play well to the rabble or the thugs.  The ability to dialogue with nuance and thought is not a thing to value in any leader. We blame our leaders, but we accept the sock of lies. I raise the issue of blowhards in our political discourse often, but perhaps it is better to blow hard than to go quietly into that dark night.