Saturday, March 10, 2012

Unmasking the 'Police State'

US Attorney General Eric Holder made a startling statement last week.

Holder said in a speech at the Northwestern University School of Law in Chicago that the government is within its rights to kill citizens who are senior leaders in al-Qaeda or affiliate groups who pose an "imminent threat" of attack against the USA and whose capture is "not feasible".

"Given the nature of how terrorists act and where they tend to hide, it may not always be feasible to capture a U.S. citizen terrorist who presents an imminent threat of violent attack," Holder said, according to a text of his speech. "In that case, our government has the clear authority to defend the United States with lethal force."

. . .

Hina Shamsi, director of the ACLU's National Security Project, said that although Holder's speech represented "a gesture towards additional transparency, it is ultimately a defense of the government's chillingly broad claimed authority to conduct targeted killings of civilians, including American citizens."

"Few things are as dangerous to American liberty as the proposition that the government should be able to kill citizens anywhere in the world on the basis of legal standards and evidence that are never submitted to a court, either before or after the fact," Shamsi said.

There's more at the link. Bold print is my emphasis.

This is chilling indeed, and I fully agree with the ACLU's alarm over Mr. Holder's position. I want to know, for a start, just where in the Constitution the US government thinks it's been given the right to kill its own citizens without benefit of legal proceedings. I rather think the Fifth Amendment covers that (relevant portions are in bold print):

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; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

I don't see any authorization or exception in the Fifth Amendment allowing the Executive Branch of the US government to decide on its own authority whether or not one of its own citizens shall be put to death. The Judicial Branch must first pronounce on that - that's what 'due process of law' is all about. An accused person must be tried, have the opportunity to defend him- or herself, have the opportunity to see the evidence against them, have the opportunity to cross-examine witnesses, etc.

That's why the military tribunals set up to deal with prisoners of the War On Terror held at Guantanamo Bay are so dangerous. The argument is that those prisoners are not US citizens, and are therefore not entitled to the protections guaranteed to citizens in terms of the Constitution. Unfortunately, that's a 'slippery slope' argument, as evidenced by the very recent adoption of the National Defense Authorization Act for Fiscal Year 2012, which authorizes clearly unconstitutional actions against US citizens. I'm sure there will be legal challenges to its provisions, but the very fact that the US government was willing to write, pass and enact such legislation, knowing that it violates the Fifth Amendment, is frightening. 'Big Brother' is making a blatant power grab - and if we allow him to succeed, we'll all become his victims, sooner or later. We'll no longer be citizens, but subjects.

This should be seen in the context of what Salon calls 'The cost of America’s police state'.

All told, the federal government has appropriated about $635 billion, accounting for inflation, for homeland security-related activities and equipment since the 9/11 attacks. To conclude, though, that “the police” have become increasingly militarized casts too narrow a net. The truth is that virtually the entire apparatus of government has been mobilized and militarized right down to the university campus.

. . .

Government budgets at every level now include allocations aimed at fighting an ephemeral “War on Terror” in the United States. A vast surveillance and military buildup has taken place nationwide to conduct a pseudo-war against what can be imagined, not what we actually face. The costs of this effort, started by the Bush administration and promoted faithfully by the Obama administration, have been, and continue to be, virtually incalculable. In the process, public service and the public imagination have been weaponized.

We’re not just talking money eagerly squandered. That may prove the least of it. More importantly, the fundamental values of American democracy — particularly the right to lead an autonomous private life — have been compromised with grim efficiency. The weaponry and tactics now routinely employed by police are visible evidence of this.

. . .

Why, for instance, are New York cops traveling to Yale University in New Haven, Conn., and Newark, N.J., to spy on ordinary Muslim citizens, who have nothing to do with New York and are not suspected of doing anything? For what conceivable purpose does Tampa want an eight-ton armored vehicle? Why do Texas sheriffs north of Houston believe one drone — or a dozen, for that matter — will make Montgomery County a better place? What manner of thinking conjures up a future that requires such hardware? We have entered a dark world that demands an inescapable battery of closed-circuit, networked video cameras trained on ordinary citizens strolling Michigan Avenue.

This is not simply a police issue. Law enforcement agencies may acquire the equipment and deploy it, but city legislators and executives must approve the expenditures and the uses. State legislators and bureaucrats refine the local grant requests. Federal officials, with endless input from national security and defense vendors and lobbyists, appropriate the funds.

. . .

Homeland Security has played a big role in creating one particularly potent element in the nation’s expanding database network. Working with the Department of Justice in the wake of 9/11, it launched what has grown into 72 interlinked state “fusion centers” — repositories for everything from Immigration Customs Enforcement data and photographs to local police reports and even gossip. “Suspicious Activity Reports” gathered from public tipsters — thanks to Homeland Security’s “if you see something, say something” program — are now flowing into state centers. Those fusion centers are possibly the greatest facilitators of dish in history, and have vast potential for disseminating dubious information and stigmatizing purely political activity. And most Americans have never even heard of them.

There's much more at the link.

Note the result of all this expenditure. The 'police state' has become a self-fulfilling prophecy; as the State spends more and more and more money on police and security-related infrastructure, those police and that infrastructure come to dominate the very State that's paying for them. The monster feeds on itself, a bureaucratic, militarized Ouroboros that squeezes us, the people, tighter and tighter in its coil.

It's long gone time we put a stop to this. Perhaps, if those of us who cherish liberty and the rule of law work hard enough, we can, in November, elect enough representatives and Senators who believe as we do to begin that process.

Let's get to work - before it's too late!



C. S. P. Schofield said...

I think the key words here are "whose capture is not feasible." . So, in our hypothetical situation, we have a U.S. citizen who is A) A senior leader in a group at war with the United States, and B) Not in our jurisdiction, or the Jurisdiction of any State that would assist in his capture.

I don't see this as a major change in policy. If you are a citizen, at war with the United States, and somewhere our army can reach, but our police can't, we get to shoot you. Any questions?

Anonymous said...

Al Quaeda membership alone should carry an automatic death penalty.

Peter said...

With respect, I think both of the previous commenters are putting expediency ahead of the foundation of our society - the rule of law. When we serve in a military or law enforcement role in this society, we take an oath to uphold and preserve the Constitution and laws of the United States. How does disregarding that same Constitution equate to living up to our oath?

Anonymous said...

Perhaps the first thing we, as a country, need to do is to refine what one has to do in order to no longer be considered a citizen. Al Awlaki did not walk into the consulate and formally renounce his citizenship, but his words and actions certainly made it clear that he wanted the legal protections of citizenship while working to undermine the country.

So first, we find a way to specify what actions an individual can take that would render his/her citizenship null(note that this would have to be positive actions on the part of the person, in order to keep the legal bar very, very high). Then we decide what legal recourse exists for eliminating that individual if they continue to pose a threat to the country.


SiGraybeard said...

While LittleRed1's comments are good, the Al Awlaki case was pretty unusual.

Along that line of reasoning, as they work down the power structure with various targets of opportunity, the question becomes exactly who is a terrorist? If you're reading this blog, you're probably already identified as a potential terrorist: the administration has made no secrets about calling anyone who might disagree with them a potential terrorist.

The rule to understanding this sort of thing is to always remember that even if you agree with this administration's views, consider what your worst enemy would do with these same powers.

The NDAA says that they can pick up a terrorist in the homeland USA and put them in detention "for the duration of the conflict" which pretty much means forever without recourse to a lawyer or court. In that case, anyone who is becoming inconvenient can be considered a terrorist and would never be able to demonstrate innocence.

So much for innocent until proven guilty.

In the case of the first two comments, again, who decides? There is no declared war, so it sure is easy for someone to say, "terrorist!" (echoes of Robespierre's "j'accuse!" - the death sentence for many).

I thought Brazil was an interesting movie. I sure didn't expect to be living it.

dave said...

Peter, you're more generous than I. I've no respect whatever for those who would toss the Constitution aside in the name of expediency.

LittleRed1 is at least more reasonable in asking the question of how we allow a citizen to renounce his citizenship by his actions, rather than merely saying ".gov says he's a bad dude, and that's good enough for me." The implication is that certain actions should be sufficient to demonstrate that one no longer wishes to be a citizen. I suspect that such actions would include levying war against the US, or giving aid and comfort to her enemies. Turns out the Constitution has something to say about that:

"Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court." Article III, Section 3.

In other words, Al-Awlaki was entitled to a trial, and shouldn't have been convicted without two witnesses or a confession.

Yes, the Constitution is inconvenient sometimes. That's the point--freedom means putting the government on a short leash. Freedom isn't safe. It's dangerous; sometimes, nutjobs are going to slip through the cracks and shoot up a grocery, or use a skyscraper for an ultra-short-field landing. Maybe put a bomb in a Ryder truck. But if we throw out our principles, we'll lose a hell of a lot more.

C. S. P. Schofield said...

I would respectfully suggest that there is a difference between executing somebody for treason and killing them as an act of ongoing war. Remember, the original quote is "not feasible", not "not practical". The statement is that citizens who choose to join forces at war with the United States are not entitled to be treated with kid gloves while still pointing weapons at representatives of the United States. We aren't going to pass up a chance to do an injury to the enemy simply because doing so involves shooting a citizen instead of a stranger.

People who take up arms against the United States are entitled to be treated as enemy combatants. And we are entitled to so treat them. If they surrender, THEN their right to trial becomes an issue.

The hypothetical citizen-terrorist is entitled to a trial AFTER HE SURRENDERS. While he is still actively at war with this country, we get to shoot at him, and if we are better shots or shoot first, then perhaps in his next life he'll consider the consequences of his politics a little more thoroughly.

BobG said...

That's a helluva slippery slope they're setting up there. Give them time to fudge definitions here and there, and they'll be able to kill anyone anytime they want.
I don't like it.

trailbee said...

And so far, no one has brought up the Grand Jury issue, which hits closest to home. Grand Juries are lethal - you cannot refuse to answer on the grounds of self-incrimination, or you go to jail. You cannot bring in counsel. You either incriminate yourself, or snitch off one of your partners.
The same people who are yammering about fair trials are the same people who love to sit on them. There is no Constitutional fairness in Grand Juries. Thus, if invited by the GJ, faced with no other options, I'd like to meet Mr. Schofield during my lunch break. There is no difference.

Anonymous said...

It's okay, obumble,the demos, and their friends in the media will soon be telling us that Bush did something similar...