Rule of Law

A couple of legal issues are on my mind right now, one at the law enforcement level, and one at the legislative level.

I have been seeing a series of photos and videos from around the country of unprovoked assaults by police against unarmed and entirely peaceful demonstrators. An 84 year old woman got maced out in Oakland and students at U.C. Davis, seated and passive, were maced in a calculating, unhurried manner by a campus police officer. Unresisting protesters have been beaten with clubs and teargassed. An officer in Oakland fired a tear gas canister into the head of a man at point blank range, fracturing his skull. When other people clustered around the fallen man to administer first aid, an officer tossed a tear gas grenade into the center of the group, scattering them.

This bothers me, of course, because of the unnecessary violence and sheer sadism of it. It also bothers me because of the damage it does to the idea of rule of law.

We should expect laws to be enforced fairly, evenly, and with techniques proportional to the seriousness of the crime. We should expect law enforcement personnel to do their jobs with the minimum force required for their own safety and the safety of those around them. But we can’t. It seems that peaceably assembling in order to petition the government for redress of grievances, while admittedly becoming a public nuisance, is grounds for violent assault.

What the police themselves fail to realize is the two types of power they wield, and the relationship between the two. Their most obvious type of power is that of the gun, the mace, and the club. This is their small power. With all that weaponry and armor, an individual police officer is no more powerful than any other person so armed and armored. A police officer’s great power is the power of respect, both for the rule of law and for the officer as a just enforcer of that law. When the general populace has that respect for law enforcement, a single officer can walk safely among a thousand people. The people will assist that officer, obey all reasonable commands, warn of danger, and offer useful information. When the police arbitrarily use violence, they lose that respect. Without that respect, the officer is merely the member of a uniformed gang.

As a positive example, consider the Vermont State Police. They are one of the best trained and most thoroughly professional police forces in the country. They patrol the highways and back roads of Vermont alone. They rely on respect. They have a solid reputation. In my few interactions with them they have been uniformly polite, helpful, and professional, even when my personal appearance was not such as inspires the affection of a police officer. They are not perfect as individuals or professionals, but I can easily see 98% of Vermonters on their side. Can the police officers of New York City or Oakland expect the same from their citizens?

The police forces that are using violence against peaceful protesters are weakening themselves. And yet, this is a common theme in history. As a government loses legitimacy in the minds of its people it resorts to force, which hastens the decline. The relative immunity of millionaire bankers to arrest and prosecution is an aggravating factor. Apparently trespassing on Wall Street is a more pressing concern to the authorities than defrauding investors of billions of dollars on Wall Street.

As if the militarization of the police wasn’t bad enough, now Congress is turning the military into the police, prosecutor, judge, jury, and jail. The Senate just passed the National Defense Authorization Act, S.1867. Stuck in there is a nightmare provision, Subtitle D – Detainee Matters. It authorizes the U.S. military to detain any terrorism suspect indefinitely, without trial. That includes U.S. citizens detained on U.S. soil, as in you, on your street. A false accusation or a case of mistaken identity is as good as a life sentence. There is a feeble and vague insertion about not affecting existing law or authorities. That means that after the military whisks you away into secret indefinite detention you can hope that the courts work it out before something even more unpleasant happens to you.

Specifically (as highlighted below):

Under Section 1031 c (1), you can be detained until the end of the “War on Terror,” whenever that might be.

Under Section 1031 c (2), you can be tried in a military tribunal, lacking basic rights or rules of evidence, and including the use of confessions obtained under torture.

Under Section 1031 c (4), you can be shipped off to a foreign country of the government’s choice.

Well, there go all the good parts of the Constitution.

President Obama says he wants to veto it, albeit for all the wrong reasons. The House of Representatives still has to work it over. Apparently even the top military brass and the various branches of the intelligence services don’t want it to pass. It’s time to write the White House and your members of Congress. And call them. And raise hell in general.

Subtitle D—Detainee Matters

SEC. 1031. AFFIRMATION OF AUTHORITY OF THE ARMED

FORCES OF THE UNITED STATES TO DETAIN COVERED PERSONS PURSUANT TO THE AUTHORIZATION FOR USE OF MILITARY FORCE.

 (a) IN GENERAL.—Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the Authorization for Use of Military

Force (Public Law 107–40) includes the authority for the Armed Forces of the United States to detain covered persons (as defined in subsection (b)) pending disposition

under the law of war.

 (b) COVERED PERSONS.—A covered person under this section is any person as follows:

 (1) A person who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks.

 (2) A person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly

supported such hostilities in aid of such enemy forces.

 (c) DISPOSITION UNDER LAW OF WAR.—The disposition of a person under the law of war as described in subsection (a) may include the following:

 (1) Detention under the law of war without trial until the end of the hostilities authorized by the Authorization for Use of Military Force.

 (2) Trial under chapter 47A of title 10, United States Code (as amended by the Military Commissions Act of 2009 (title XVIII of Public Law 111–25 84)).

 (3) Transfer for trial by an alternative court or competent tribunal having lawful jurisdiction.

 (4) Transfer to the custody or control of the person’s country of origin, any other foreign country, or any other foreign entity.

 (d) CONSTRUCTION.—Nothing in this section is intended to limit or expand the authority of the President or the scope of the Authorization for Use of Military Force.

 (e) AUTHORITIES.—Nothing in this section shall be construed to affect existing law or authorities, relating to the detention of United States citizens, lawful resident aliens of the United States or any other persons who are captured or arrested in the United States.

 (f) REQUIREMENT FOR BRIEFINGS OF CONGRESS.—

The Secretary of Defense shall regularly brief Congress regarding the application of the authority described in this section, including the organizations, entities, and individuals considered to be ‘‘covered persons’’ for purposes of subsection (b)(2).

The Secret Committee

Thanks to a few highly placed government officials we now know how the Obama administration came to the conclusion that the murder of Anwar al-Awlaki was permissible. Through Glenn Greenwald’s always excellent column at Salon I found a Reuters article about the secret committee in the bowels of our (?) government that decides who lives and who dies.

From the Reuters article, quoting the anonymous government officials:

“They said targeting recommendations are drawn up by a committee of mid-level National Security Council and agency officials. Their recommendations are then sent to the panel of NSC "principals," meaning Cabinet secretaries and intelligence unit chiefs, for approval. The panel of principals could have different memberships when considering different operational issues, they said.”

Great. A bunch of faceless suits halfway down the hierarchy at the NSC and the intelligence agencies are making a hit list.

And further:

“Several officials said that when Awlaki became the first American put on the target list, Obama was not required personally to approve the targeting of a person. But one official said Obama would be notified of the principals' decision. If he objected, the decision would be nullified, the official said.

A former official said one of the reasons for making senior officials principally responsible for nominating Americans for the target list was to "protect" the president.”

If the arbitrary killing of U.S. citizens is such a wonderful, justifiable thing, why does the President need protecting? Because those involved know that they are violating every basic principle of our Constitution and are doing it anyway. They are doing it for political gain and just because they can get away with it.

Of course, if there is a secret committee, there must be a secret memo. The New York Times reports on a 50-page memo, written last year, that laboriously justifies the zero-due-process killing of a U.S. citizen.

“The secret document provided the justification for acting despite an executive order banning assassinations, a federal law against murder, protections in the Bill of Rights and various strictures of the international laws of war, according to people familiar with the analysis. The memo, however, was narrowly drawn to the specifics of Mr. Awlaki’s case and did not establish a broad new legal doctrine to permit the targeted killing of any Americans believed to pose a terrorist threat.”

No broad new legal doctrine for arbitrarily killing us? Right. Read the first sentence of that excerpt again. The murder of Anwar al-Awlaki wasn’t a one-off. What we are witnessing is a new direction for the military/security-industrial complex. The dirty work, or “wet work,” as the practitioners so elegantly call it, is being brought out in the open. Justification is easier and more effective than concealment.

I have written before about the fact that torture is a technique of terrorism. When a government uses torture, the practice is never supposed to be completely secret. A partial disclosure of the horror works to chill opposition. In this case, the arbitrary assassination of a U.S. citizen (and its justification) serves the same purpose. It rallies the bigots and proto-fascists and makes everyone else look over their shoulders.

It’s a grim joke to have to ask the President to live up to his oath of office and uphold the Constitution. It’s another grim joke to see the right wingers discomfited by a Democrat who is willing to outflank them to the right on both militarism and disregard for constitutional law. Obama has tasted the power of the imperial presidency handed over by Bush, and he’s finding it useful.

The question of this administration’s respect for rule of law has been answered in the negative. It is merely a continuation of previous practices under a new headliner. We should not expect the President to change course or suddenly have a change of heart. That is, unless the political realities of the situation change dramatically.

I don’t have any clear or easy answer as to how we change the political reality. Looking at history, such changes have always been a messy struggle. Those involved generally have a well defined goal, but the path and the ultimate destination only reveal themselves in hindsight. It takes longer than expected, and the movement never quite gets there. Liberty is always unfinished business.

In light of these painful, shameful, and frightening developments I can only say, do something. Do what you think is right to reverse this trend. Keep doing it. Either you are doing something against it, or in your silence and passivity you are cooperating with it.

Another Death

I was listening to the clock radio alarm yesterday morning, half asleep, when I heard the news. Osama bin Laden was killed by a small team of U.S. commandos in his walled compound, 30 miles from Islamabad, Pakistan.

Please forgive me, but I did not have the urge to jump out of bed and dance around the room. Yes, he deserved it, but his death is ten years late and our response to his crimes has been self-destructive. Thinking pragmatically, there’s no real win here.

We had the chance to kill him back in the winter of 2000-2001. On November 2, 2000 in a hotel room in Germany, representatives of the Taliban government of Afghanistan met with representatives of the Clinton administration and agreed to help us kill Osama bin Laden. The method of choice was to isolate bin Laden and his followers under house arrest in a compound in a village called Daronta and have the Taliban give us coordinates for a cruise missile strike.

(I picked up this story from Counterpunch in 2006 and interviewed the source in 2007.)

Admittedly, there has been considerable debate as to the intentions of the Taliban in these negotiations. Various diplomats and former intelligence operatives have differed as to the seriousness of Taliban offers. Some thought that the Taliban were stalling. Others thought that the U.S. government was missing opportunities due to cultural ignorance; The Taliban kept dropping broad hints that seemed obvious to them, but blew over our heads. Whatever the truth there, it seems to me that with more determination and imagination we could have decapitated al Qaeda before 9-11 at minimal cost.

 Consider the changes the United States has gone through since bin Laden’s biggest plot came to fruition on September 11^th, 2001.

The U.S. government, with our complicity, has discarded major portions of our constitution. The Orwellian USA-PATRIOT Act, passed in a panic-stricken rush, set the stage for our march towards a police state. We have sunk to third-world dictatorship moral status with our government’s embrace of torture, indefinite detention, rendition, military tribunals, and secret prisons. We are subject to warrantless wiretapping and other arbitrary invasions of privacy. Habeas corpus, a settled point of law for four centuries, has become a quaint anachronism. We have, in general, discarded the 4^th, 5^th, 6^th, and 8^th Amendments in the Bill of Rights (covering unwarranted search and seizure, due process, self incrimination, a speedy and public trial, rules of evidence, and cruel and unusual punishment), and key parts of Article 1, Sections 8 and 9 (war powers and habeas corpus). The executive branch has accumulated dangerous and unconstitutional powers.

We invaded Afghanistan when there was still a chance of surgically killing the object of our pursuit, and we remain there a decade later. We committed the ultimate war crime – invading another country without provocation – and Iraq has suffered beyond even its previous sufferings. The blood of hundreds of thousands of innocent lives is on our hands. We have sunk ourselves in debt by pouring trillions of dollars down the bottomless maw of the military industrial complex. This pipeline of cash has snaked back on itself and further corrupted our electoral system.

The truly perverse part of it all is that bin Laden and his followers just blew up a couple of big buildings. He killed fewer people than die in a month on our highways. They were killed in an especially cruel, horrifying, and dramatic way, and I am not trying to minimize their suffering or the suffering of the victim’s families and friends. But stand back a bit and look at all the painful ways that hundreds of thousands of people die in this country every year.

My point is, bin Laden didn’t depopulate us, he didn’t invade us, he didn’t take over our territory, and he didn’t execute a coup and take the reins of our government. As with the usual automotive carnage, we did the work ourselves. Osama bin Laden didn’t stand at the podium in the House or the Senate, arguing for yet another attack on our fundamental rights. Nor did he vote for the idiots who did. That was the work of U.S. citizens, scared into docility and jingoism, eating up the propaganda and lopping off the best parts of themselves to feed the sharks. The sharks being the opportunist politicians and the corporate sociopaths they serve.

At 54 years old, bin Laden beat the average life expectancy of Afghans by about a decade and came close to that of your average Pakistani. He committed an act of mass murder calculated for its emotional impact and then sat back and watched us as we wrecked the foundations of our own society. We are reduced as a nation, morally, politically, socially, and economically. He probably didn’t have much time to reflect in his last few minutes of life, but if he did, I imagine he died with a certain sense of satisfaction.

Yes, I’m glad he’s dead. No, this doesn’t feel like a victory.