Enough.

The NRA has made the anniversary of Newtown “Guns Save Lives Day,” with the same amount of tact and sensitivity as the Westboro Baptist Church.

newtownI dropped my children off in front of their elementary school last December 14th, taking notice of two security guards in bright red jackets. “You’re bringing in the big guns,” I said at the time to Mrs. C, the school aid whose job it was in the morning was to make sure parents pulled their minivans all the way through the circular driveway of the school so that traffic didn’t build up in the road. Parents rarely acknowledged her; mostly they slowed their cars to a grinding halt wherever they found it convenient, long enough for their Aidens and Isabellas to jump out in front of the crosswalk and run into the school. The sound of Mrs. C. yelling at the parents and chastising the children not to run was the music of our mornings. But that day, she had backup.

It wouldn’t be until later that afternoon when I would realize how prescient and ironic my “big guns” comment was. By then, twenty children in Sandy Hook elementary would be mowed down by rifle fire.

But my own kindergarten and second graders would be safe.

It is now a full year later. A year where we saw the opportunity for gun legislation reform squandered; a year in which we saw more mass homicides at the hands of gunmen; a year where we witnessed the NRA taking control of the national conversation and steering it away from the protection of children, inviting hysteria not to the fact that we have twenty-times more gun deaths in the United States than any other developed country in the world, but fear that President Obama is trying to usurp our second amendment rights. The NRA has made the anniversary of Newtown “Guns Save Lives Day,” with the same amount of tact and sensitivity as the Westboro Baptist Church.

With the exception of those we laid to rest since last December, we are  a year older now. My daughter, who was five last year, is now the same age as the children buried by devastated parents, while a sorrowful nation watched, holding a bit tighter to our own kids. We opined this year, in editorials and blogs. Mommies marched in Washington, politicians made great speeches. Governor Cuomo passed legislation restricting the amount of bullets a magazine could hold to seven, but later rescinded, as it proved impractical.

A national registry was never born, as it infringed on the rights of gun owners. In a year where NSA revelations showed us that nothing we say, text, or type is entitled to privacy, gun owners retained theirs.  In a year when we vowed to leave no stone unturned in an effort to make this country a safe place for children to go school and for parents to drop their little ones off without their hearts in their throats, we saw roughly 33,273 gun deaths.

In a country that has only grown in gun violence, politicians steer clear of any language suggesting that gun confiscation could have any relevance to the national conversation. We can argue about the reasons why gun culture is so pervasive in the US – whether video games inspire violence or whether violence in our movies, games, and art is simply a reflection of the reality of our lives; whether near-constant war inspires a battle-mentality on the home front; or whether our laws are too little or too weakly enforced  – but what remains is that we have become so desensitized to gun violence that we buried twenty 6 year olds without making one significant change.  The NRA and their supporters have only grown stauncher, more inspired, and more audacious.

Policy- and lawmakers don’t want to rock the boat by asking for an infringement on second amendment rights. And while we waste more time trying to fit the outdated usefulness and rhetoric of that amendment, people die. While gun supporters terrorize their audience into believing that only bullets will protect them from both criminals breaking into their homes and into the executive office, we stand on the sidelines and watch how the Tea Party has co-opted the Republican Party and steered our government to a grinding halt. We have seen districts get redrawn; voters become alienated from the voting process, and trust in democracy diminishes. We’ve already experienced a government takeover. And guns didn’t protect us.

This afternoon, Colorado witnesses yet another school shooting.

It seems to me that the time for tact has vanished along with the wasted time for opportunity. The boat cannot be unrocked.

The masses are the big guns of a democracy. It’s time to bring them out – and to say: We’ve had enough.

Over Our Dead Bodies

And while Congress busies itself by threatening to defund Obamacare at the risk of shutting down the government, we lay more Americans to rest.

Capital flag at halfmastIt was almost perfect. Or as perfect a mass shooting could be. The assailant was a black guy first of all, which helps the narrative that fuels the bottom line: Fear. If we could stay afraid of black guys, then we could feel justified in arming ourselves. And then it came out that the Navy Yard in DC where the shooting occurred was a “gun free” zone. Which plays even more perfectly into the hands of the NRA. “See that?” various right-wing news sources alleged. “The idea of a gun-free zone is a joke. It invites massacre. It is the opposite of a solution, which is, as we’ve been saying all along: More guns. Not less. Never less.”

Except there are some holes in that narrative. The first is that the Navy Yard was “protected” by gun-wielding guards. Just like Virginia Tech was. Just like Columbine.

The second was that the black guy obtained his gun legally. This throws a chink in the armor of one of the underlying threads of logic on the right that says that gun control is a fool’s errand because it only robs the good guys from getting the guns to protect the rest of us from bad guys with guns. Because we’re supposed to believe that black skin and bad are synonymous. This proved unfortunate when so many other American terrorists were white guys.

What the Navy Yard shooting actually does is to bring light to insufficient gun control laws. Because we have evidence – evidence that we don’t need time after time – that armed guards are not bullet proof. That they are not the lone answer. We know this, but we are not loud enough.

What we also know is that obtaining ridiculous multiple round assault weapons is too effing easy. That the background check safeguards are not enough. The assailant had multiple red flags including gun incidents and mental heath deficiencies that did not prevent him from obtaining a legal weapon. And while Congress busies itself by threatening to defund Obamacare at the risk of shutting down the government, we lay more Americans to rest.

So how about this? What if we go back to Congress with this equally off-the-wall idea that they can have Obamacare. They can dismantle it and defund it. They can rob the people of this country of their right to affordable healthcare. They can eliminate the right of Americans to be covered for pre-existing conditions. They can tell their twenty-five year old children that they are not eligible under their healthcare. We can continue to overpay in criminal capacity and max out our emergency rooms with non-emergencies. If they will do one thing: give up their guns. Australia-style. Turn them in. All of them. Rescind the second amendment, effective immediately.

Never happen, right? Pie in the sky?

Absolutely. And the left usually doesn’t work that way. We pass common-sense legislation through trickery and negotiation, through force and trial. And it comes in millimeters, and so watered down from its original form that it is unrecognizable. And the worst part? We’re grateful.

Enough.

Because the Tea-Partiers have gotten a stronghold on the Republican party not by making sense, but by being loud and insistent. So much that their ridiculous ideas get credence in the mainstream just by wearing everybody down. Vote to repeal Obamacare forty-two times? Threaten to shut down the government? Fine. Give up your guns.

Let’s meet them where they are. They are not meeting us up here in rationality. Let’s start at batshit nuts and get the conversation that needs to be had out there. Remember in Lethal Weapon where Mel Gibson’s
character outcrazies the criminals? We haven’t tried that yet. What if our Democratic congresspeople took on a new persona that said, “I’m surprised you haven’t heard of me, I got a bad reputation, like sometimes I just go nuts,” Mel Gibson-style (minus the anti-semitism.)

7143.0.570.359

Might we bring serious gun control discussion to the forefront of the American conversation? Might we scare the right into doing what they know is the right thing by intimidating them with our own brand of crazy? Because twenty children mowed down in Newtown didn’t do it. So I say we go extreme. We’ve been so careful to say, “No one is taking away your guns,” to the right. And it hasn’t worked. So let’s start there and maybe we’ll negotiate ourselves down to something that actually makes sense. At the very least, might we expose them for what they are: excruciatingly irresponsible. And nuts.

And then let’s consider this. Is the idea of gun confiscation as crazy as shutting down the government unless the Affordable Health Care Act is defunded?

The answer to that shows just how far off course this country has gotten.

 

America’s Exception to the Rule

What separates us from the third world and from the tyrants that run that world is not that we have weapons of mass destruction and that we are prepared to deploy them, but rather the opposite. We’re exceptional not for military might but for our restraint.

obama/putinKnow what’s funny? The conservative protest against a peaceful solution to the Syria conflict is absolutely consistent with the commonplace bloodlust of the party of “life.” And by funny, I mean disheartening. But I will give them this: unlike the flippity-floppity liberals, at least they have consistency on their side. In the wake of yet another mass shooting, the right come out en mass against gun control.

Let’s take a look at some of Obama’s changing positions. First, he says he won’t get involved unless they cross his self-imposed red line of use of chemical weaponry. Check. Then, he actually wants that threat to have teeth. He follows up like he said he would. And his position is this: unless Syria is willing to give up their chemical weapons, we’re going to start killing some people up in here. And then they agree. And Obama has the wherewithal nerve to agree. Punk.

The idea that John Kerry made a blustering mistake that “accidentally” led to a peaceful resolution is disingenuous. Say what you will about Kerry, ketchup, motorcycling photo ops with Assad, the man has put his time in. They don’t misspeak at that level, not with war at stake.

And to say that Obama was played for a fool by Putin says more about the “patriotic” right than it does about Obama’s intelligence level, which has never, through two elections and a near-constant six-year litany of insults, ever been called into question. But that’s okay. We need opposition to hold our leaders accountable. We need to question the motivations of our politicians, and we need to speak up when those questions meet with unsatisfactory answers. That’s the duty of the electorate.

In his Op-ed in the New York Times, Putin disparaged the United States in general and Barack Obama in particular for considering this country “exceptional.”  He asserted that this kind of attitude is dangerous and while it may seem unpatriotic to agree, I see his point. This kind of untouchable mindset, the kind that wallows in superiority, is a breeding ground for ignorance, which could be very dangerous indeed. And yet, America is exceptional. We are a country born of conflict and debate, and have built into our founding documents the elasticity to grow in fits and spurts. We foster disagreement here.  We might not like what people say about us. There is no way that Putin’s words appearing in a mainstream newspaper didn’t irk the shit out of a big portion of our populace. But find me a pissed off citizen who doesn’t equally believe in his right to say it. That’s our exception. It’s what makes us different.

What Putin actually meant, by throwing Obama’s words and those of the preamble back into our faces, is the word “superior.”  But that’s really beside the point, isn’t it? And the fact that Putin is wrong about us, doesn’t mean that Barack Obama is right. If you take a look at the people of Walmart, it’s hard to make a case for the hierarchy and evolution of humanity with America at the top of that food chain. But let’s take a look at Congress. They don’t make it easy either  – yet what separates us from the third world and from the tyrants that run that world is not that we have weapons of mass destruction and that we are prepared to deploy them, but rather the opposite. We’re exceptional not for military might but for our restraint. Putin said, “It is alarming that military intervention in internal conflicts in foreign countries has become commonplace for the United States.”  We can take this not as fact – commonplace? Really? But as food for thought. The times where the US has lived up to its place in the world have been when our leaders were thoughtful and analytical where others have been knee-jerk reactors. And this mindset carries down from a Constitution that promises thoughtful action into our legal system which tries to enforce that view.

Barack Obama has the dual obligation to be commander-in-chief and also to uphold and protect the Constitution. These should not be in conflict but as of late, they often are. Let’s take a look at the credo of United States to which Putin refers: “We hold these truths to be self-evident, that all men are created equal.” This was a credo born in revolution, asserting that we, the underlings of the modern-day world, had the same inborn rights as those abroad. It was the cry of the vulnerable to the strong. The fact that we have risen up as one of the world’s superpowers absolutely suggests that we have a responsibility within that world. As we are now one of the biggest, that very credo allows that we need to offer our help to those in the position from whence we came: vulnerable, small, and un-equal. Exceptional, but not in a good way.

On a micro-scale, this is the way we need to address the growing problem of gun violence in this country. If the victims are the little guys, the gun manufacturers are the tyrants. And the inherited role of the United States is not to kowtow to the big guy, but to help the vulnerable. We have muscles upon muscles in this nation, and sometimes the smartest action is to flex them. The right would have us land a punch with every conflict. Or pull a trigger.

Yet, we might do well to remember our roots. And by doing so, become the exception.

 

Gun Control: Something Bigger

We define ourselves by our singular identity, instead of in the context of community. That makes it easier to shoot those neighbors, and to stomach it when they shoot each other.

It seemed unfair and even cruel to open brightly wrapped presents by the fire this past Christmas when there were twenty sets of parents in Connecticut grieving and devastatingly un-merry.

With the gun control debate taking over the national conversation, l’ve forced the writer in me to look at the issue critically, to reconcile the far-left idea of gun control with conservative fears of a too far-reaching government.  But it was the mom in me who “liked” The Brady Campaign to Prevent Gun Violence and as such, has been drawn into debate with right-leaning friends through social media.  “It’s not the gun laws,” I’ve been chastised.  “It’s the culture.”  A culture of violence based on a departure of religious celebration in deference to political correctness, a culture of video games that have taken over parental duties in what are now the new normal: broken families.  And a culture that celebrates violence in song lyrics that brags about gun murder and echo misogynist sentiments of “hoes” and “bitches.”  It’s the natural progression of the deterioration of this country, so I’m told.

It would make theoretical sense that exposure to violence in films and the pretense of shooting people in violent video games would desensitize children to violence in actual reality.  In practice, however, the research suggests otherwise. A ten-country comparison reported by the Washington Post shows little correlation between video games and gun murder.  In fact, the countries that tend to have the highest rate of video game consumption rank lowest in gun murders, seemingly because these countries are richer and more fully developed.  So the economy tends to affect the purchase and use of video games, but that statistic doesn’t carry over to gun violence.  Simply put, video games don’t create killers. As a friend recently told me, “I’ve been playing Grand Theft Auto since I was ten and I’ve never had the urge to pistol whip a prostitute.”

We know that the Japanese play violent video games, yet their fire-arm related death rate is the second lowest in the world. Violent movies like Trainspotting, Hellraiser, and the slew of Guy Ritchie films originate in the UK. The British are a violent people as well, as their history and crime rate will show you, but due to strict laws, gun violence is not an issue there.   It’s embedded in us here.  In our culture.

It must be something bigger.

Is it in the parenting?  In Nancy Lanza’s case, that certainly seems to be a fair assumption.  She bought semi-automatic assault weapons, introduced them to a child of nine who seemed to have been showing signs of disturbance, and had them within reach of that son. Yet, this wasn’t the case with the parents of the Columbine shooters, or others.  My  own son unwrapped a Nerf Hail-Fire rifle this Christmas.  It shoots out 200 foam bullets at lightning speed.  He was nothing less than ecstatic at uncovering this bounty.  But it made me feel uncomfortable, in light of recent events.  Am I complicit in the expansion of this violent culture?  Is this how it starts?  What exactly is the appeal of such a toy gun?  What is he thinking in his mind when he aims it at his little sister, who screams in delight for at least having captured his attention for a few spare minutes, even if it is only to be his target?

If I had withheld the toy guns, might this have fostered an obsession, something like forbidding sweets to a child who grows up to be a Type-2 diabetic candy fiend?  How can you know?  These are the complexities of parenting, the second-guessing, the regret and the unknowing.  But as parents we move forward, and if we are lucky, we get to learn from our mistakes.  We allow ourselves to build on the successes of our past and learn from the missteps of others.

Can the disintegration of “family values” be the source of the corrosion of society? Or is it dangerous to mark non-traditional families as a pock on society? I know families with gay parents that are filled with the same love and discipline that I strive to have in my own two-parent heterosexual home.  Single mothers have raised two of the last three Presidents. And only heterosexual parents have ever bred American mass murderers. But I wouldn’t go so far as to say that heterosexuality is the cause.

Pop music today has some blatant sexual references, designed to shock parents, but if you think that’s a new phenomenon, ask your grandparents about what their parents thought of their music.  The modern equivalent of the chicken or the egg conundrum seems to be the question of whether violence in our art is the cause or the reflection of what we see.  And although we can find examples of how art and literature can change the world (Catch 22, for example, or the writings of the Harlem Renaissance that helped to spur the Civil Rights Movement), the answer seems to lie in the after.  Like Monet’s water lilies or Van Gogh’s sunflowers, the artists of the world are painting what they see before them, in the mediums that are available: television, film, song writing – especially rap lyrics. And it’s there on Twitter, on Facebook, in blogs and advertising and gaming.

So how did it get there?

Michael Moore cites one of the main problems with this country to be the “Me” syndrome, a culture that translated from “pull yourselves up by your bootstraps” to a separation where we don’t care about our neighbors’ problems: poverty, lack of healthcare, education.  We blame the poor for their own missteps and misfortunes, their lack of success.  We define ourselves by our singular identity, instead of in the context of community. That makes it easier to shoot those neighbors, and to stomach it when they shoot each other.

That gun owners are motivated by fear is apparent.  The argument for unrestricted weaponry appears to be the threat of a government overcome by tyranny.  Background checks and registration lists that can be cross-checked inspire a fear that the government is compiling a master list from which to work when they come to confiscate all guns (and then enslave us.)

But what if believing that this is fear motivated is too charitable?  What if it stems from our uniquely American sense of ownership and entitlement, reflected and distorted by US policy?  Noam Chomsky chronicles the attitude that has informed the American zeitgeist since World War II, when the United States was the global power that we pretend it is today. In his book “Power Systems: Conversations on Global Democratic Uprisings and the New Challenges to U.S. Empire,” Chomsky discusses an event in 1949 in which the U.S. “lost China.” That China’s emancipation was independent of the U.S., who in fact, cannot “lose” something it doesn’t own, was lost on American leaders. It bred fear that we might “lose” the Middle East or Latin America. Our ownership of the entire planet, its resources, people, economies is so engrained in our collective psyches that it informs so much of who we are as people, and what we tolerate from our own government. Is it possible that our tacit consent to the United States throwing its weight around the world, under the guise of “nation building,” informs our domestic egos and our intolerance for dissenting opinions?

Our rights have become our righteousness.

We infringe our notions of “freedom” and democracy in the world unilaterally, at gun point, in oil-rich deserts only because of this sense.  This is how we justify indefinitely detaining prisoners in Guantanamo without due process, though we pride ourselves on due process as a distinction from other countries and as a way to prove how civilized we are.  This is what allows us to justify unmanned drone strikes that don’t have nearly the precision we’d like to believe they do, that cause death and destruction to people in countries we cannot pronounce, yet we bow our heads and cry when one of our schools gets shot up.

We laugh about global warming.  We ridicule Al Gore and his wishy-washy environmentalism, preferring our version of badass representatives who kill, sometimes without provocation. We gobble up the resources of the planet as our birthright. That sense of entitlement – the we “lost China” syndrome – is uniquely American. The fear that the government is coming to take our guns – to take away our rights to protect ourselves with high-capacity rifles, shotguns, AR-15s, our right to shoot someone thirteen times without reloading, stems from this American ideal.

My right to kill you is stronger than your right to live.

From foreign policy to individual rights, we hail from the promised land, the chosen country whose rights supersede all others.  It makes sense that who we are as a country informs who we are as citizens. This naturally includes our attitude about immigration, global warming, and gun ownership. This is the culture from which mass murder is committed – atrocities far and wide. Blaming video games, rap lyrics, and divorce is lazy. And dangerous.

What divides us from all other countries?

Both the writer and the mother in me fear that it just might be good PR.

Gun Nuts and Chilled Speech

When Daniel Ellsberg, Chris Hedges and Noam Chomsky, along with a handful of the world’s most prominent political activists, join together to bring suit against you in U.S. federal court it’s fair to say you have a problem.

Okay, so now we’re all armed. Present company included. Great job, America. Now what?

The debate over gun control would be uproarious if it wasn’t so pitiful. In typical American fashion we have taken to the streets and airwaves in the aftermath of Sandy Hook to engage in an irrational debate that, once again, places misguided ideology over common sense and humanity. If we’re going to have this conversation, let us at least place the discussion within its proper historical context so we may raise a more troubling question:

Why bother taking the guns when you can indefinitely detain their owners? 

Lost in the emotion surrounding the debate over the Second Amendment is a far more insidious assault on the First Amendment. In no way am I diminishing the consternation over our right to bear arms as citizens; rather, I’m making a pragmatic case for a far more clear and present danger than the idea that federal agents will show up at our doorstep to commandeer our weapons. Before we get to this larger and more important point, let us dispense with the ridiculous.

Of course, we shouldn’t sell guns to crazy people, just like we don’t give a driver’s licenses to  blind people. Of course, citizens shouldn’t own military-style weapons with enough ammunition to wipe out a village. Newsflash: the government has neither the authority nor the desire to seize our guns. We hold the dual distinction of being the planet’s most armed nation and its biggest dealer of arms. What does this mean? The gun culture is here to stay because it’s profitable as hell.

And another thing: Stop yelling sanctimoniously about what the Founding Fathers would say. Find out what they did say. Media pundits insult our intelligence by twisting the meaning of the Constitution and the rationale behind it. So instead of arming yourself with high-capacity weapons, arm yourself with knowledge and learn about the Second Amendment from those who wrote it.

Founding Father Knows Best

During the two short years between the ratification of the Constitution and the introduction of the Bill of Rights, three of the greatest minds in America publicly explored the rationale behind the country’s founding document. A trio of intellectual giants writing interchangeably under the name Publius—Alexander Hamilton, John Jay and James Madison—produced a collection of essays now known as The Federalist Papers. They are essentially crib notes to the Constitution left behind by the Founding Fathers.

These are treasured breadcrumbs of reasoning that lead us to understand that the great military concerns of the day were whether or not to allow a standing army and how to prevent one state from acquiring military dominance over another. (The nascent nation could ill-afford Virginia to sack Rhode Island.) This dilemma was at the heart of the federalist argument for a centralized authority. At the same time, the Founding Fathers knew that the great balancing act of the day was in maintaining enough military force to defend against external foes while simultaneously preventing armed insurrections from within.

Publius reasoned that neither citizens nor tyrants should have the ability to circumvent our legal system, therefore arms and force should be evenly rationed but employed by a central government when necessary. (For the politically impaired, this is the part about a well-regulated militia.) The framers of the Constitution were dubious when it came to having full-time, professional soldiers. After all, these men were revolutionaries themselves who intimately understood the danger of uprisings. Moreover, America was also flat broke and could never have paid for a standing army. They did, however, believe Congress should have the ability to organize a militia when necessary.

It was Hamilton (as Publius) who offered the most succinct viewpoint on the military. “To render an army unnecessary will be a more certain method of preventing its existence than a thousand prohibitions on paper.”

To have an army or not? If so, how best to regulate it? This was the debate. The easiest way to raise a militia was to call upon the armed citizenry should the need arise. (This is the right to bear arms part.) More importantly, it was cheap. The ability to compensate servicemen would become one of Hamilton’s central arguments in favor of a national bank—a far more delicate subject at the time than the right to bear arms would ever be. 

It’s fair to say even the Founding Fathers could never have imagined modern warfare and the rise of the military industrial complex. Nor could they have imagined the destructive capability of assault weapons in the hands of citizens. This much is clear from their writings: the Founding Fathers would have punished any idiot who attempted to stockpile enough weapons to take on the government long before they tolerated government prohibition of speech.

On several occasions our founders saw fit to violently quell popular uprisings in order to preserve the central authority of the union. In this there was great philosophical unity among them. They argued more about banking than guns and cared more about protecting speech than organizing militias. It was John Adams who created a divide among them when, as president, he passed the Alien and Sedition Acts, jarring both Thomas Jefferson and James Madison out of retirement; not because they were fearful of his demagoguery with respect to force, but because these acts took away a more sacred right: free speech.

This brings us to the larger issue at hand.

Just as Jefferson and Madison recoiled at the behavior of Adams once in office, the great intellectual giants of our day have come together to challenge President Barack Obama’s authority. 

The man who released “The Pentagon Papers” and forever changed the way in which we view our involvement in Vietnam. The award-winning multilingual journalist who quit the New York Times because it was too tepid and conservative. America’s foremost dissident who has influenced generations of thinkers and helped shape liberal intellectualism. When Daniel Ellsberg, Chris Hedges and Noam Chomsky, along with some of the world’s foremost political activists such as Jennifer “Tangerine” Bolen – the organizing force of the plaintiff’s team – join together to bring suit against you in U.S. federal court it’s fair to say you have a problem.

Such is the predicament Obama finds himself in today. The above group has brought suit against the government for infringing upon free speech as defined by the Constitution. Thus far, and thankfully, they are winning. Their lawsuit (which I refer to herein as the Hedges suit) not only challenges the government’s unconstitutional behavior, it casts a light on a dangerous trend in America and exposes a surprising secret weakness in the White House and the Justice Department.

Incarceration Nation

“There are now more people under ‘correctional supervision’ in America—more than six million—than were in the Gulag Archipelago under Stalin at its height.” —Adam Gopnik, The New Yorker, 2012.

The woeful mash-up of Conservatives, Libertarians, Tea Party loyalists and Democrats who wouldn’t know a liberal idea if the ghost of Gore Vidal whispered it to them, are so busy deconstructing America’s gun culture they have ignored a more alarming cultural trend: the culture of incarceration.

In addition to being the most armed nation in the world, America also has the greatest percentage of its population behind bars. While this trend has steadily risen over the past few decades, it has gained a level of acceptability in the post-9/11 era. Perhaps, this is why so few bristled at the passage of the provision the Hedges suit aims at. 

The plaintiffs in this suit have made the case in federal court that the Obama administration and Congress violated the First Amendment with the signing of the National Defense Authorization Act (NDAA) of 2012. The Act is a routine bill that organizes defense spending for the year and typically garners little attention from citizens and the media. But the 2012 Act contained a new provision authored in secret by Sen. John McCain—known as Section 1021—that was so alarming it prompted the above suit.

Essentially, Sec. 1021 expands the scope of existing law that allows the government to hunt terrorists in connection with 9/11 to include anyone seen as providing “substantial support” of terrorism. Ever. Anywhere. The provision offers vague language that attempts to couch it within existing statutes but its very existence is evidence that the government is seeking more expansive authority.

In September of 2001 the White House put forward several provisions that gave the government the power to prosecute those responsible for the terrorist attacks on 9/11. The joint resolution—the Authorization for Use of Military Force (AUMF)—passed Congress quickly and included nearly everything the Bush Administration requested. Everything, that is, except a provision that could have been interpreted as granting the government the ability to militarily detain U.S. citizens. This denial was subsequently upheld by the U.S. Supreme Court.

The Hedges suit argues that the broadness of Sec. 1021 and vagueness of the “substantial support” language endanger journalists and activists and theoretically expose U.S. citizens to indefinite military detention.

Katherine B. Forrest, district judge in the U.S. District Court Southern District of New York, presided over the opening salvo of the Hedges suit and delivered a resounding victory to the plaintiffs, and an injunction against enforcement of Sec. 1021, excoriating the government and its case in the process. In her decision she states, “The Government was unable to provide this Court with any assurance that plaintiffs’ activities…would not in fact subject plaintiffs to military detention.”

For its part, the government’s sole defense seemed to be inaction: If no one has yet been detained, then obviously there is no cause for alarm. Basically, their defense is that even though Sec. 1021 says that the government can punch you in the face if it doesn’t like your shirt, it hasn’t done it yet; therefore we must assume it won’t. Judge Forrest wasn’t buying it. Her decision examines various laws pertaining to what the government defines as criminal statutes related to terrorist activities of behavior in “material support” of such activities. In each case, laws are clearly designed to honor due process. She further argues that the plaintiffs are rightly concerned that Sec. 1021 falls outside the scope of constitutionality with respect to habeas corpus and is therefore not consistent with any legal precedent.

This is where it gets really, really interesting.

 Judge Forrest: “Section 1021 appears to be a legislative attempt at an ex post facto ‘fix’: to provide the President (in 2012) with broader detention authority than was provided in the AUMF in 2001 and to try to ratify past detentions which may have occurred under an overly broad interpretation of the AUMF.”

Whoa.

President Obama doesn’t have a journalism problem. He’s not afraid of liberal scholars, protests, or homegrown terrorism on the rise because of access to Jihadist websites. Barack Obama has a Guantanamo problem.

Ah, Guantanamo. Hundreds of suspected terrorists or their affiliates have been brought here for questioning. Scores have been indefinitely detained. Recall then-candidate Obama’s assurance that Gitmo would be closed. Upon becoming president, it didn’t take long for the political reality to set in that the remaining prisoners weren’t coming ashore to stand trial anytime soon.

On the one hand, the government makes the case that Sec. 1021 is no different than existing authority granted under the AUMF. On the other hand, the government stands by the need for this provision to continue its mission to find and prosecute suspected terrorists, as though AUMF isn’t sufficient enough. Judge Forrest barely shields her disdain for this conflicting stance and rightfully concludes that “Section 1021 is, therefore, significantly different in scope and language from the AUMF.” She goes on to wag her finger at the attorneys for the government, saying, “Shifting positions are intolerable when indefinite military detention is the price that a person could have to pay for his/her, or law enforcement’s, erroneous judgment as to what may be covered.”

Back to Hedges et al. for a moment. Stymieing the government’s continued attempt to cover up potential war crimes at Guantanamo may have been an incredible, yet unintended consequence of the Hedges suit. Remember, the plaintiffs in the Hedges suit aren’t suing over Guantanamo. That’s a different fight. Rather, they take issue with the inherent danger of the language to citizens, activists and journalists. Nevertheless, Sec. 1021 is still on the books as the suit is pending appeal. And regardless of whether or not any U.S. citizen has been specifically detained as a result of its passage (and how would we know?) it must disappear.

For his part, President Obama issued a signing statement distancing his presidency from Sec. 1021. But actions speak louder than words and in many ways he has been far more active in assaulting civil liberties than President George W. Bush ever was. Whether through the wide use of drone strikes in Pakistan, Yemen and Somalia or numerous examples of prosecutorial overreach—most recently the tragic case of “hacktivist” Aaron Swartz—or the failure to speak out against the alphabet soup of dwindling liberties (SOPA, PIPA, FISA) Obama has given the public little evidence that he cares about this issue. Perhaps even more troubling is that his tenure as a constitutional law professor has been touted so often that one can only assume he understands the complexity of the issue but has chosen to ignore it, or worse take advantage of it. Bush was able to play the no-nonsense (you’re either with us or against us) cowboy card. Obama has chosen to play the steely intellectual card, and in doing so has created legitimate cause for alarm.

All of which brings us back to the gun debate. As much as I am sympathetic to the right to bear arms, I refuse to capitulate to the cheap argument that it includes the right to possess combat-style weaponry. Furthermore, I’ve grown weary of the ignorant protestations from right-wing figures who poison the words of the Founding Fathers and miss the bigger picture altogether.

The more we divorce ourselves from the notion of liberty, the more abstract it becomes; the more divisive our discourse, the more perilous our future. The vociferous gun debate obscures the very real, current and existing assault on our civil liberties. And know this: Were they alive today, not only would Hamilton, Jay and Madison have joined Ellsberg, Hedges and Chomsky as plaintiffs in this lawsuit, they would challenge every right-wing blogger, talk radio host and television pundit who twisted their words to a duel.

With a pistol, not an assault rifle.

 

Illustration: Jon Moreno

 This version has been updated from the original that appears in the February edition of the Long Island Press.

 

NY Misses the Target on Mental Health: DC Gets It Right

Quite frankly, the biggest issue with New York’s new gun law is not what’s in it, it’s what’s missing.

New York took bold steps last week and with lightening-speed passed what has been called the “nation’s toughest gun law.” The stuff that makes NRA-types go nuts got all the media attention – bigger restrictions on assault weapons, a new limit on ammunition magazines, a ban on Internet sales, and real-time background checks to name a few.  But also within the Secure Ammunition and Firearms Enforcement Act (SAFE) is a new provision that requires licensed mental health professionals – psychiatrists, psychologists and social workers – to alert local mental health officials if a patient “is likely to engage in conduct that would result in serious harm to self or others.” The local mental health folks will then conduct their own evaluation and if they concur with the potential risk, that patient will be added to a statewide database of folks who can’t get a gun. If they already own a gun, local cops are going to bang on that person’s door, demand to see the gun and take it.

Mental health professionals have always carried an ethical duty to warn, but the state has generally left it to practitioners to decide when and how to report. Practitioners usually listen for an explicit threat, conduct a more thorough assessment, and then weigh a series of options that might include notifying those at risk, arranging hospitalization, and/or calling the police. That flexibility has given clinicians the ability to deal with a potential risk of violence without breaching confidentiality and perhaps keeping that person engaged in a course of treatment that in and of itself, may diminish risk.

The mandate in the new law is broad and in this environment, will likely be applied much more often than the current standard. Several prominent mental health experts have already expressed their concerns.  Dr. Paul Appelbaum, director of law, ethics and psychiatry at Columbia University told the New York Times, “It undercuts the clinical approach to treating these impulses, and instead turns it into a public safety issue.” Dr. Eric Neblung, a psychologist and the president of the New York State Psychological Association told the Wall Street Journal, “You’re turning psychologists into police officers.”

To the average person, keeping guns out of the hands of the mentally ill is a no-brainer. But get this: a large body of research suggests that people with psychiatric disabilities are far more likely to be victims than perpetrators of violent crime. One national survey found that those with chronic and severe mental were victimized a whopping eleven times more often than those in the general population.

And if we can’t get that imposing image of the crazed gunman out of heads long enough to consider the numbers, it’s important to recognize that New York’s new law doesn’t target the few mentally ill who could become shooters. It targets those who seek treatment – including cops, corrections officers and other uniformed personnel, who are often most reluctant to seek help. And if we are truly concerned about guns winding up the hands of unstable folks, why not make psychological testing a pre-requisite for getting a gun?

Quite frankly, the biggest issue with New York’s new gun law is not what’s in it, it’s what’s missing. The Secure Ammunition and Firearms Enforcement Act does absolutely nothing to enhance access to mental health services and contains no new funding for such programs. Perhaps that’s because our state is cash-strapped, or maybe it’s because including funds would have prompted some of the more fiscally conservative folks to hold-up the bill. Then New York wouldn’t have been first.

A day later, President Obama rolled out his gun control package. It contained all the high-profile stuff like background checks for gun show shoppers, limits on high-capacity ammunition magazines and the like, but he also called for new federal investments in school safety and mental health counseling. 

In addition to $180 million in school safety spending, the President’s proposal includes: $15 million to help teachers and youth professionals provide “Mental Health First Aid,” to identified students; $40 million to help school districts, law enforcement and local agencies better coordinate services for students in need; $25 million to finance new, state-based strategies to better identify individuals ages 16 to 25 with mental health and substance abuse issues and get them the care they need; $25 million to boost school-based mental health services aimed at treating trauma, anxiety, and enhancing conflict resolution; and $50 million in new funds to train social workers, counselors, psychologists and other mental health professionals.  That money would also provide stipends and tuition reimbursement for more than 5,000 new mental health professionals that want to work with young people in school and community-based settings.

Is it enough? Probably not.  It does, however, restore some of the $235 million the Administration ripped out of the state Safe and Drug Free Schools grants program last year and ensures a more proactive, comprehensive approach to keep our kids and communities safer.

While it’s true that New York, our legislators and Governor Cuomo can now lay claim to passing the first and toughest gun law in the wake of the Sandy Hook shootings, the absence of solid mental health solutions means that it probably won’t prove to be the nation’s best.

Photo: White House Photo