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.

 

Drone Strikes and the Definition of War

The legality of an unmanned drone strike is subordinate to the morality of it. Further, it challenges our ability to define war; somehow the connection between direct human action and murder codifies the nature of true conflict.

Marines are trained to fire in unison at the enemy. It erases individual culpability by establishing a psychological barrier between the shooter and the target. Sharing the responsibility for a “kill” assuages personal guilt and allows soldiers to better compartmentalize traumatic events, or so the theory goes.

 This type of rationalization is made even more powerful (or palatable) by the remoteness that unmanned aerial vehicles (UAVs), commonly known as “drones,” provide. For most of the past decade UAVs have hammered away at al-Qaeda and Taliban insurgents hiding in the mountainous terrain of Pakistan that borders Afghanistan. And though there was little, if any, talk of controversial drone strikes during the presidential election, the use of UAVs has reached a tipping point in global politics.

The legality of an unmanned drone strike is subordinate to the morality of it. Further, it challenges our ability to define war; somehow the connection between direct human action and murder codifies the nature of true conflict. The struggle to define this type of faceless modern warfare suggests that we are moving away from a discussion of immorality and toward amorality; exactly the point our democratic ideals of “purposeful” and defensive war devolves into outright nihilism.

The anonymity and precision of drone strikes uses our military resources efficiently while wreaking havoc on our enemies abroad. They also enable the United States to carry out an offensive in a country like Pakistan when we are technically not at war with its government. In fact, we are operating with its tacit approval. For now. But if every strike was carried out directly by human hands, there would be little doubt we are indeed at war as it is conventionally defined. Now, in its second term, the Obama administration is wrestling with whether to declassify the drone program that everyone already knows about because it would put us firmly at odds with international law.

Unmanned drones were conceived and perfected by the George W. Bush administration but they were used far more sparingly compared to the Obama administration. Terrorism, or the threat of it, continues to be the raison d’etat that justifies our aggression and the use of drones. In this, the administrations are aligned. A terrorist killed with little collateral damage and zero American bloodshed is enticing but illusory because the technology is portable and easily replicable. It will undoubtedly be developed and deployed by other nations free to define targets by their own standards.

The tacit approval of drones by the Pakistani government does not erase the fact that we are threatening our national security in the long run; we are establishing an international precedent that we will someday be forced to confront.

To begin, many of the militants we target abroad have sought refuge in other nations such as Yemen and Somalia. And our drones have followed. Yet if the government of Yemen, were it capable and so inclined, bombed a US-based manufacturing plant that produced parts for UAVs, they would technically be justified in doing so by our own standards. If China decided to send drones into Tibet, or if Russia targeted Georgia, the same logic would hold true.


The New York Times reporter Scott Shane revealed in an article Sunday concerns within the Obama administration over what they call an “amorphous” policy; this worry increased prior to the election for fear of leaving an open-ended policy to an incoming Romney administration. According to Shane, victory has allowed the White House to take its foot off of the accelerator for the moment, but it remains an important part of the president’s agenda.

But this kind of sudden realization that current policy might become permanent and out-of-control has become a troubling hallmark of the Obama presidency. Clear evidence of this is found in Obama’s refusal to fight the “indefinite detention” provision in the 2012 National Defense Authorization Act. Critics fear that the language of this provision was so murky that it theoretically gives the government license to detain American citizens without due process. Instead of eliminating this verbiage and the conflict that surrounds it, Obama attached a signing statement to the bill that directly addresses the detention provision and essentially says that while he is aware of the fear it engenders, he would never use it to detain a US citizen. The very existence of the signing statement, however, is an admission that it is indeed open to interpretation; future presidents are not bound to Obama’s statement, but the law itself.

Understanding the psychology of the Obama administration or establishing a clear policy regarding drone strikes ultimately does nothing to more clearly delineate the nature of modern, human-less aggression. Carl von Clausewitz, who contributed as much to the understanding of our relationship with war as any writer on the subject, suggests in his defining work, On War, published in 1832, that: “The act of War can only be of two kinds; either the conquest of some small or moderate portion of the enemy’s country, or the defence (sic) of our own until better times.”

This was a practical analysis befitting the times that endured to the end of the last millennium. It defined conflict between nations but not necessarily between enemies as they are presently constituted. Post-9/11 warfare has pitted America, which relies on borders and nationalism, against roving mercenaries whose only allegiance is to a higher authority we cannot overcome. Clausewitz allows for wiggle room in his conventional theory, however.

“The third case, which is probably the most common, is when neither party has anything definite to look for from the future when therefore it furnishes no motive for decision. In this case the offensive War is plainly imperative upon him who is politically the aggressor.”

President Obama appears to be hedging his bet by placing a chip on each of the cases above. Furthermore, his reliance upon UAVs is loosely justified by its purported success thus far. But it also presents a persistent and impossible conundrum that assails our conventional understanding of war.

Somehow in this mess, this fog of invisible war, we must extricate ourselves from establishing precedent before it hardens into accepted global policy. If not, this dangerous game of cat and mouse will haunt us as it disperses our enemies while strengthening their resolve. Only by bolstering ties and intelligence in this region through financial support and diplomatic incentives will we assemble a righteous strategy for the future. Moreover, a retreat from this policy preserves our right to punish our enemies authoritatively with the support of our allies, while regaining the moral high ground. 

To walk softly and carry a big stick implies restraint, and restraint implies strength and confidence. These are characteristics closer to what the president exudes, which begs the question as to why he has tethered himself to policies that are so cowardly.

Justice

Sorry to be morbid but there’s a strong statistical possibility that one of the current justices will move on—whether retiring or expiring—in the next four years and that the next president will once again be called upon to nominate someone for the highest Court in the land.

Preamble
We’re a few weeks away from the presidential election and at the halfway point in this series of columns. Therefore, before we tackle this week’s issue, it’s appropriate to pause and assess the current situation.

In the first election column I referred to this series as a summit quest; a challenge to leave more nonsensical items of the campaign silly season behind and equip ourselves only with the truth as we tackle important issues. In it I also laid out a few irrefutable facts and circumstances that would serve as underlying assumptions, or “base camp,” for our climb and warned that the closer one gets to the summit, the thinner the air would become. Little did I know how prescient this analogy was; even former Vice President Al Gore blamed President Obama’s horrific debate performance in Colorado on altitude sickness.

Whether it was his fumbling answers or Mitt Romney’s Cosa Nostra-like threats to public television—kissing Big Bird on one cheek while plunging a knife beneath his wing—our ascent must take into consideration current events and the candidates’ performance. As far as the first debate is concerned, Romney took command of the evening and ran the proceedings as though he was giving a Power Point presentation. He was concise, efficient and direct, never once allowing the facts to stand in his way. Obama was riddled like Sonny at the Causeway as jubilant Romney fans took to the airwaves and social media to pounce on bewildered liberals.

Great fun.

As stunned as I was by this turn of events, it changes nothing with respect to my analysis of the election because both President Obama and Gov. Romney have substantial records and demonstrated beliefs that are far more illuminating than the debates. Moreover, our country’s challenges remain the same, as do the circumstances in which we live. It’s why policies and issues are more important than one’s ability to annunciate them in less than two minutes. I’m not questioning the importance of the debates as far as campaigning is concerned, but nothing said between the two men can alter what they have done in the past or where we are today.

But the home stretch of a campaign puts everything under a microscope, and no one can predict what might become a turning point. The tragic event that occurred at our embassy in Libya on Sept. 11th was immediately and inappropriately politicized by the Romney camp. The White House followed up with its own (ongoing) gaffe by not forthrightly acknowledging the strong possibility that this was an organized terrorist attack and not an impromptu protest that spun out of control. But, here again, as maddening as Obama’s reticence in this matter is, his patience demonstrates why his approach is more preferable to the blustering rhetoric coming from the right.

Here’s why: As the evidence mounts from that night, it seems increasingly clear that this was indeed an organized terrorist attack. Therefore, it should be dealt with in the same covert manner that we have been conducting our affairs for the past four years. Overreacting in this part of the world, particularly in a state as fragile as Libya, can have devastating repercussions. If we had responded with immediate force like the George W. Bush “shoot first, look for WMD’s later” approach when the images first appeared of Ambassador Chris Stevens’ body being carried by unknown Libyans, then we would have missed that they were actually Libyan civilians who had found the ambassador alive and were calling for help. When none were found, they put Stevens into a car and took him to a hospital.

The world around us is so fragile. What some regard as callousness on the part of the president should be viewed as his understanding of this reality.
With that consideration, let us soldier on to this week’s chosen issue. The first few columns in this series took a detailed and practical look at the economy, deregulation, foreign policy and the stimulus. This week is more personal and I will keep it brief.

Justice
One of the most important aspects of the presidency is the opportunity to nominate justices to the U.S. Supreme Court. For some presidents, it has been their most enduring legacies. Four of the justices are currently in their 70s, and the average American lifespan according to the Centers for Disease Control is 78. Sorry to be morbid but there’s a strong statistical possibility that one of the current justices will move on—whether retiring or expiring—in the next four years and that the next president will once again be called upon to nominate someone for the highest Court in the land.

While we believe the collective American conscience has evolved beyond horrifying decisions such as Dred Scott, even the current Court is capable of alarming incompetence. Consider the Citizen United decision or simply read the following remarks made recently by conservative Justice Antonin Scalia at the American Enterprise Institute:

“The death penalty? Give me a break. It’s easy. Abortion? Absolutely easy. Nobody ever thought the Constitution prevented restrictions on abortion. Homosexual sodomy? Come on. For 200 years, it was criminal in every state.”

This type of spiteful and irresponsible attitude must be quelled by stacking the Court with thinking and feeling individuals.

Hopefully, Citizen United will someday be repealed. Ironically, perhaps an Obama Court will someday reverse one of his most dangerous acts thus far, which was to sign into law the indefinite detention provision of the NDAA 2012 bill last year, one of the greatest encroachments on our civil liberties in decades. Lastly, as the father of two daughters, I have no choice but to take the Republican Party at its word with respect to its desire to take away a woman’s right to choose. Sticking our heads in the sand and saying, “Oh, that will never happen,” ignores the Republican platform, their campaign promises and actual bills Republicans have put forward in Congress.

Because Obama has already demonstrated his tendencies with respect to the Court through his appointments of Elena Kagan and Sonia Sotomayor, we know where he stands. During his political career, Mitt Romney has stood on all sides of virtually every issue and therefore offers little insight into the type of nominee he would proffer. But his acquiescence to the most radical conservative wing of the Republican Party is troubling enough to inform my decision in this case.

This court once again sides with the incumbent.

 

Live Free and Die

Um, sorry, black folk. Apparently in Ron Paul’s America, the right of a state still trumps your right to be considered more than three-fifths human.

Originally published in the January 12th, 2012 edition of the Long Island Press

The highest office in the land is the only job where applicants are rewarded for the level of disdain they express for the position they seek. The greater the antipathy toward government, the better the candidate connects with voters; or so it seems given the tenor of the GOP primary season. 

The image of the self-loathing politician promising to shrink the role of government in our lives is as old as the nation itself and usually appears during woeful economic times such as these. Of course, what someone utters on the campaign trail is almost always a far cry from how he speaks upon ascending to the Oval Office. Watching the current slate of GOP-hopefuls repackage this timeless anti-government dogma while vying for the single most powerful job in government is as ironic as it is ridiculous, but it is not without precedent. 

Many of the Founding Fathers were highly suspicious of government and the competence of the men seeking to run it. To them, government was a necessary evil, which is why so many provisions were enacted during America’s youth to protect its citizens from tyranny. But even the Founding Fathers weren’t immune to the awesome and corrupting power that accompanies the presidency. One early example was John Adams, one of the staunchest proponents of the Bill of Rights and the author of the Massachusetts Declaration of Rights, which included many of the Constitutional amendments we hold so dear today. It was Adams who cajoled a reluctant James Madison to introduce the Bill of Rights in Congress to protect citizens from encroachments on their liberty. 

Only a few years later, Madison was jolted from retirement to join with Thomas Jefferson against an emboldened President Adams, who had recently signed the Alien and Sedition Acts into law, thus allowing the federal government to detain and arrest any citizen who spoke out against it. Adams was reacting to federalist fears triggered by watching the French Revolution turn ugly, and his paranoia was not without merit. But the totality of federal authority granted under these acts was so abhorrent to many of his contemporaries and fellow American revolutionaries it prompted the passage of the Kentucky and Virginia Resolutions whereby these respective states unilaterally deemed the Alien and Sedition Acts unconstitutional. 

Now put this conflict into its proper current context. Libertarians such as Ron Paul, the second-place finisher in the New Hampshire primary on Tuesday, and free-market conservatives (every other GOP candidate including frontrunner Mitt Romney) routinely paint themselves as Jeffersonian state’s rights advocates. Paul, in particular, identifies strongly with the Kentucky and Virginia resolutions in spite of the fact that they were specific to the threat of the Alien and Sedition Acts and later were the primary separatist arguments upon which the Civil War was fought. While the larger field of candidates is likely incapable of discussing these measures in any thoughtful way, Paul has actually made a career arguing that these resolutions are somehow as sacrosanct as the Constitution itself. He has even gone so far as to criticize their demise under President Abraham Lincoln and has called the Civil War a “major setback” due to the “undermining of the principle of sovereign states.” In a statement made on the floor of the House of Representatives in 2004, which was re-circulated by the organization Campaign For Liberty over the summer, Paul lamented this development saying, “The Civil War profoundly changed the balance of power in our federalist system, paving the way for centralized big government.”

Um, sorry, black folk. Apparently in Ron Paul’s America, the right of a state still trumps your right to be considered more than three-fifths human. 

Beyond the unintended consequence of setting the stage for the Civil War, the Kentucky and Virginia Resolutions did serve to unify the Democratic-Republican Party (later just the Democratic Party) against the Federalists and Adams’ frightful encroachments on individual liberties. But the fight with Adams was cover for the real issue that divided the nascent empire: taxes. 

Most of the Founding Fathers were opposed to Alexander Hamilton’s insistence upon centralizing and maintaining a strong federal treasury. They opposed it, that is, until it was their time to lead the nation as president. America’s ability to purchase land, fight skirmishes at home or wage war on the high seas was impossible without levying taxes upon its citizens: an early example of the evaporating campaign promise. When it comes to dollars and cents, ideology cannot overcome fiscal reality. 

It’s one of the reasons why our economy is struggling so badly today. Believing that war somehow pays for itself and, even more magically, stimulates growth, the Bush administration chose to ignore history and embroil the nation in two costly wars while simultaneously cutting taxes to anemic levels. This type of disconnect is central to the Republican psychology of this presidential campaign and each candidate’s continued misinterpretation of the Founding Fathers.

As much as the Jeffersonians were ideologically opposed to a strong central bank and morally opposed to the Alien and Sedition Acts, they were pragmatists. Their fight against the latter gave spirit to the party, the former provided substance. Same concept, different century. 

Mind you, the GOP isn’t alone in their disassociation between candidacy and presidency. Take the curious case of candidate Barack Obama, self-proclaimed expert on the Constitution who signed the National Defense Authorization Act for 2012 on New Year’s Eve, which includes the controversial indefinite detention provision that has libertarians and others going berserk. As well it should. It’s a confusing bundle of words that, in conjunction with the authority granted to the government under the Patriot Act, theoretically provides President Obama with powers dangerously akin to those bestowed on President Adams by the Alien and Sedition Acts. 

So while pundits split hairs over who hates government the most and which candidate has been married the longest, we’ve tragically lost our place in our own history. And so here we are again: back where we started, none the wiser and with little to show for our experience.

Indefinite Detention: NDAA for Fiscal Year 2012

When the courts are no longer responsible for trying its citizens and the president is given the exclusive right to arbitrate in cases the military deems to be matters of national security, we have already descended far down the slippery slope toward fascism

Originally published in the Dec. 22nd edition of the Long Island Press

Every policy in Washington is developed over time and influenced by myriad factors. Even singular foreign policy events such as the Monroe Doctrine or declarations of war are the culmination of assiduous planning and debate that take into account a progression of economic, national security and human factors. Because every policy is based upon building blocks of understanding relative to the time and circumstances in which they were developed, there is always a reason why even the most divisive or treacherous idea gains support, for better or for worse.

Such is the case with section 1031 of the National Defense Authorization Act for fiscal year 2012 (NDAA), a provision commonly referred to as the “indefinite detention” clause. The NDAA itself has already passed both houses of Congress and currently awaits President Obama’s signature. The detention provision has garnered a great deal of attention from the blogosphere and advocacy groups such as the American Civil Liberties Union (ACLU) as it marks a decidedly dangerous shift in procedure and rights with respect to detainees in the War on Terror. The section, authored by Sens. Carl Levin (D-Mich.) and John McCain (R-Ariz.), gives the military the ability to indefinitely detain anyone it deems to be connected to the War on Terror, thus superseding the authority of civilian courts.

The NDAA itself is a fairly routine bill that organizes funding for the military. It does not appropriate funding, which is important to understand. The original language in the 1031 amendment was troublesome enough to prompt a strong rebuke from several members of Congress and the President who threatened to veto the bill if it included this measure as written.

The revised measure attempts to codify the language with respect to detainees and assuage the fears of those who viewed this as undermining our Constitutional rights and a threat to the democratic process. The reason is that the original language was vague enough that the possibility of detaining U.S. citizens and legal aliens indefinitely without due process was left open to interpretation.

The language was “clarified” by referring specifically instead to al-Qaeda and its affiliates and exactly who has the ability to authorize detention should a person be suspected of having ties to a terrorist organization. In an attempt to calm the waters surrounding this amendment Sen. McCain—ironically the most notable former detainee in the U.S.—issued a statement saying, “the language in this bill will not affect any Americans engaging in the pursuits of their Constitutional rights.” The ACLU begs to differ.

On its website the ACLU specifically tackles the revised provision with the following: “Don’t be confused by anyone claiming that the indefinite detention legislation does not apply to American citizens. It does. There is an exemption for American citizens from the mandatory detention requirement (section 1032 of the bill), but no exemption for American citizens from the authorization to use the military to indefinitely detain people without charge or trial (section 1031 of the bill). So, the result is that, under the bill, the military has the power to indefinitely imprison American citizens, but it does not have to use its power unless ordered to do so.” They go on to quote Sen. Lindsey Graham (R-S.C.), who said section 1031 “does apply to American citizens and it designates the world as the battlefield, including the homeland.”

Inside the Beltway there has been great consternation over this provision. Sen. Mark Udall (D-Colo.) put forward an amendment to water down the McCain/Levin provision (S.Amdt. 1107: To revise the provisions relating to detainee… to S. 1867) but it was voted down 61 to 37 in the Senate (the two senators from Alaska did not vote). Even FBI Director Robert Mueller has expressed concern that this language will inevitably lead to confusion in the field as to who has superseding authority during a terror investigation. The thought of the military being able to access and interrupt a civilian terror investigation and round up suspects unilaterally is a threat to every level of U.S. law enforcement. The fact that it potentially extends to American citizens, despite Sen. McCain’s claims to the contrary, speaks to the ambiguity of even the final language.

At first it seemed as though President Obama balked at this provision out of his understanding of the impact on American civil liberties and Constitutional rights; that the POTUS was back on message from his campaign and defending personal freedom. As it turns out, this couldn’t be further from reality. Incredibly, the White House reversed its stance and withdrew its opposition to the bill after the language was changed to include a stipulation that granted exclusive authority to arbitrate the detention provision away from the Secretary of Defense and directly to the president. In effect, Obama simply consolidated detainee power and privilege into the office of the president.

It’s important also to remember that this bill is not an appropriations bill. Unlike other spending bills that have been in the news this year that require passage to prevent certain government agencies from running out of funds, the NDAA does not fund the Pentagon, it organizes its expenditures and establishes certain rules and provisions. Therefore, nothing would theoretically be interrupted if this bill doesn’t pass. In other words, the POTUS has little to lose in fighting this provision. Instead, he caved. Again.

The question is: Why should this concern Americans? Remember that policy doesn’t develop in a vacuum. Sections 1031 and 1032 don’t stand on their own. When taken in conjunction with the Patriot Act and the government’s decision in 2009 to extend three controversial provisions that include granting the government the ability to collect information and conduct wire tapping and surveillance in secret without obtaining warrants, the detainee provision gets a little alarming. Add to this the extension of the “lone wolf” provision of the Patriot Act, which allows the government to track anyone around the world regardless of their affiliation, and things become even more ominous.

Again, each of these provisions has theoretical and practical merit, particularly when considered within the post 9-11 context in which they were established. Taken together, however, and the dangerous crack in the defense of our civil liberties begins to grow.

Take, for example, the case of Tarek Mehanna of Massachusetts. Mehanna, it would seem, despises America. He even went so far as to seek Jihadist training abroad though he was rebuffed. Today he is being prosecuted, not just for attempting to join a jihadist organization, but also for promoting jihadist material online. A recent Mother Jones article links the Mehanna case to the killing of “Anwar al-Awlaki, a radical U.S.-born Imam whose ability to give sermons in colloquial English made him the symbol of a new era of homegrown extremism.” Most of us harbor little sympathy for either of these men, but the government’s response and action toward both in conjunction with the steady erosion of civil liberties under the Patriot Act and the indefinite detention clause of the NDAA speak to the steady rise in domestic militarization.

When the courts are no longer responsible for trying its citizens and the president is given the exclusive right to arbitrate in cases the military deems to be matters of national security, we have already descended far down the slippery slope toward fascism. This is not hyperbole but rather a strict interpretation of fascism as an ideology that revokes individual rights under the cloak of nationalism and consolidates domestic tribunal authority under the military controlled by a singular authority.

There are two reasons most Americans care little about the debate surrounding the detention provision. One is that most people are law-abiding Americans to whom criticizing America and promoting terrorist speech is anathema. That’s a good thing. The other is that most people probably haven’t even heard of it because the debate, while raging behind closed doors in Congress and inside the blogosphere, is largely absent in the traditional media. The only plausible explanations for this omission are either that corporate media outlets don’t think it’s important or they are afraid of the potential consequences to their coverage.

Let’s assume that the issue of whether the military should be allowed to supersede an FBI investigation of U.S. citizens and indefinitely detain suspects without evidence or the requirement to divulge any of its actions is important to all of us and examine the latter. What could traditional news outlets be concerned about? Take everything covered to this point and consider the following scenario:

A credible journalist reporting on the Mehanna case would need to cite the remarks Mehanna posted on the Internet that prompted authorities to investigate him and consider him an imminent threat. This same journalist would now be technically guilty of exactly the same crime as Mehanna if he is convicted on this count and U.S. law establishes the precedent that reporting jihadist sentiments is an act of terrorism. This would be treasonous behavior calling into question the strength and breadth of the First Amendment. Theoretically the government can not only begin surveillance and wire-tapping on the journalist, the military can decide to intervene and indefinitely detain this person without due process.

Think it can’t happen? Well, technically it can because this entire scenario would be legal in the eyes of the government under the strictest interpretation of the new law. Of course it can happen. This is McCarthyism minus the hearings and histrionics of Sen. Joseph McCarthy. It was during the McCarthy years that indefinite detention was first contemplated and even briefly enacted, though it was never officially implemented or acted upon. For as long as that journalist/blogger/activist/whomever can be considered a “Lone Wolf” or perhaps linked to affiliates of al-Qaeda—an organization that is by nature indefinable—his or her constitutional rights as a citizen can be suspended. The War on Terror as conceived by George W. Bush and codified domestically under the Patriot Act, is an active and permanent war in the spirit and definition of the Cold War. If the Bush Doctrine allowed the U.S. to wage war on nations without provocation, then the McCain/Levin provision brings the doctrine home.

The moment Obama affixes his signature to the bill will mark a seminal shift in our democracy. It will also mark the tragic moment that the Obama presidency becomes indistinguishable from the Bush Administration.

 

Main photo: AP – A June file photo of the sun rising over Camp Delta detention compound at Guantanamo Bay U.S. Naval Base, in Cuba.

Below right: AP file photo of Robert Mueller. Below Left: AP file photo of Tarek Mehanna