The US Is No Longer the Land of the Free

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http://jonathanturley.org/2012/01/15/10-reasons-the-u-s-is-no-longer-the-land-of-the-free/

The US Is No Longer the Land of the Free
By Jonathan Turley, Jonathan Turley's Blog
15 January 12


below is today's column in the Sunday Washington Post. The column addresses
how the continued rollbacks on civil liberties in the United States
conflicts with the view of the country as the land of the free. If we are
going to adopt Chinese legal principles, we should at least have the
integrity to adopt one Chinese proverb: "The beginning of wisdom is to call
things by their right names." We seem as a country to be in denial as to the
implications of these laws and policies. Whether we are viewed as a free
country with authoritarian inclinations or an authoritarian nation with free
aspirations (or some other hybrid definition), we are clearly not what we
once were.

Every year, the State Department issues reports on individual rights in
other countries, monitoring the passage of restrictive laws and regulations
around the world. Iran, for example, has been criticized for denying fair
public trials and limiting privacy, while Russia has been taken to task for
undermining due process. Other countries have been condemned for the use of
secret evidence and torture.

Even as we pass judgment on countries we consider unfree, Americans remain
confident that any definition of a free nation must include their own - the
land of free. Yet, the laws and practices of the land should shake that
confidence. In the decade since Sept. 11, 2001, this country has
comprehensively reduced civil liberties in the name of an expanded security
state. The most recent example of this was the National Defense
Authorization Act, signed Dec. 31, which allows for the indefinite detention
of citizens. At what point does the reduction of individual rights in our
country change how we define ourselves?

While each new national security power Washington has embraced was
controversial when enacted, they are often discussed in isolation. But they
don't operate in isolation. They form a mosaic of powers under which our
country could be considered, at least in part, authoritarian. Americans
often proclaim our nation as a symbol of freedom to the world while
dismissing nations such as Cuba and China as categorically unfree. Yet,
objectively, we may be only half right. Those countries do lack basic
individual rights such as due process, placing them outside any reasonable
definition of "free," but the United States now has much more in common with
such regimes than anyone may like to admit.

These countries also have constitutions that purport to guarantee freedoms
and rights. But their governments have broad discretion in denying those
rights and few real avenues for challenges by citizens - precisely the
problem with the new laws in this country.

The list of powers acquired by the U.S. government since 9/11 puts us in
rather troubling company.

Assassination of U.S. Citizens

President Obama has claimed, as President George W. Bush did before him, the
right to order the killing of any citizen considered a terrorist or an
abettor of terrorism. Last year, he approved the killing of U.S. citizen
Anwar al-Awlaqi and another citizen under this claimed inherent authority.
Last month, administration officials affirmed that power, stating that the
president can order the assassination of any citizen whom he considers
allied with terrorists. (Nations such as Nigeria, Iran and Syria have been
routinely criticized for extrajudicial killings of enemies of the state.)

Indefinite Detention

Under the law signed last month, terrorism suspects are to be held by the
military; the president also has the authority to indefinitely detain
citizens accused of terrorism. While Sen. Carl Levin insisted the bill
followed existing law "whatever the law is," the Senate specifically
rejected an amendment that would exempt citizens and the Administration has
opposed efforts to challenge such authority in federal court. The
Administration continues to claim the right to strip citizens of legal
protections based on its sole discretion. (China recently codified a more
limited detention law for its citizens, while countries such as Cambodia
have been singled out by the United States for "prolonged detention.")

Arbitrary Justice

The president now decides whether a person will receive a trial in the
federal courts or in a military tribunal, a system that has been ridiculed
around the world for lacking basic due process protections. Bush claimed
this authority in 2001, and Obama has continued the practice. (Egypt and
China have been denounced for maintaining separate military justice systems
for selected defendants, including civilians.)

Warrantless Searches

The president may now order warrantless surveillance, including a new
capability to force companies and organizations to turn over information on
citizens' finances, communications and associations. Bush acquired this
sweeping power under the Patriot Act in 2001, and in 2011, Obama extended
the power, including searches of everything from business documents to
library records. The government can use "national security letters" to
demand, without probable cause, that organizations turn over information on
citizens - and order them not to reveal the disclosure to the affected
party. (Saudi Arabia and Pakistan operate under laws that allow the
government to engage in widespread discretionary surveillance.)

Secret Evidence

The government now routinely uses secret evidence to detain individuals and
employs secret evidence in federal and military courts. It also forces the
dismissal of cases against the United States by simply filing declarations
that the cases would make the government reveal classified information that
would harm national security - a claim made in a variety of privacy lawsuits
and largely accepted by federal judges without question. Even legal
opinions, cited as the basis for the government's actions under the Bush and
Obama administrations, have been classified. This allows the government to
claim secret legal arguments to support secret proceedings using secret
evidence. In addition, some cases never make it to court at all. The federal
courts routinely deny constitutional challenges to policies and programs
under a narrow definition of standing to bring a case.

War Crimes

The world clamored for prosecutions of those responsible for waterboarding
terrorism suspects during the Bush administration, but the Obama
administration said in 2009 that it would not allow CIA employees to be
investigated or prosecuted for such actions. This gutted not just treaty
obligations but the Nuremberg principles of international law. When courts
in countries such as Spain moved to investigate Bush officials for war
crimes, the Obama administration reportedly urged foreign officials not to
allow such cases to proceed, despite the fact that the United States has
long claimed the same authority with regard to alleged war criminals in
other countries. (Various nations have resisted investigations of officials
accused of war crimes and torture. Some, such as Serbia and Chile,
eventually relented to comply with international law; countries that have
denied independent investigations include Iran, Syria and China.)

Secret Court

The government has increased its use of the secret Foreign Intelligence
Surveillance Court, which has expanded its secret warrants to include
individuals deemed to be aiding or abetting hostile foreign governments or
organizations. In 2011, Obama renewed these powers, including allowing
secret searches of individuals who are not part of an identifiable terrorist
group. The administration has asserted the right to ignore congressional
limits on such surveillance. (Pakistan places national security surveillance
under the unchecked powers of the military or intelligence services.)

Immunity From Judicial Review

Like the Bush administration, the Obama administration has successfully
pushed for immunity for companies that assist in warrantless surveillance of
citizens, blocking the ability of citizens to challenge the violation of
privacy. (Similarly, China has maintained sweeping immunity claims both
inside and outside the country and routinely blocks lawsuits against private
companies.)

Continual Monitoring of Citizens

The Obama administration has successfully defended its claim that it can use
GPS devices to monitor every move of targeted citizens without securing any
court order or review. It is not defending the power before the Supreme
Court - a power described by Justice Anthony Kennedy as "Orwellian." (Saudi
Arabia has installed massive public surveillance systems, while Cuba is
notorious for active monitoring of selected citizens.)

Extraordinary Renditions

The government now has the ability to transfer both citizens and noncitizens
to another country under a system known as extraordinary rendition, which
has been denounced as using other countries, such as Syria, Saudi Arabia,
Egypt and Pakistan, to torture suspects. The Obama administration says it is
not continuing the abuses of this practice under Bush, but it insists on the
unfettered right to order such transfers - including the possible transfer
of U.S. citizens.

These new laws have come with an infusion of money into an expanded security
system on the state and federal levels, including more public surveillance
cameras, tens of thousands of security personnel and a massive expansion of
a terrorist-chasing bureaucracy.

Some politicians shrug and say these increased powers are merely a response
to the times we live in. Thus, Sen. Lindsey Graham (R-S.C.) could declare in
an interview last spring without objection that "free speech is a great
idea, but we're in a war." Of course, terrorism will never "surrender" and
end this particular "war."

Other politicians rationalize that, while such powers may exist, it really
comes down to how they are used. This is a common response by liberals who
cannot bring themselves to denounce Obama as they did Bush. Sen. Carl Levin
(D-Mich.), for instance, has insisted that Congress is not making any
decision on indefinite detention: "That is a decision which we leave where
it belongs - in the executive branch."

And in a signing statement with the defense authorization bill, Obama said
he does not intend to use the latest power to indefinitely imprison
citizens. Yet, he still accepted the power as a sort of regretful autocrat.