Sunday, April 15, 2012

Peculiar Times: Political Rights in America Today

### Update (5-19-12):  According to the Los Angeles Times, federal district Katherine B. Forrest has ruled Section 1021 'facially unconstitutional' in the context of the 1st Amendment particularly involving free speech.  The judge issued an injunction against the use of Section 1021.

One of the most important hypotheses I hope to share in the option3 project is that the two party system is an illusion that will not likely serve our understanding of and ability to solve the complex problems of the evolving now.

A growing concern of mine reflects the artificiality and deceptiveness that lies in the division between Republicans and Democrats in relation to the issue of civil liberties; during eight years of Bush and nearly 4 years of Obama, the individual's sphere of influence and sovereignty have diminished.  Not only has the political domain of the individual decreased but the political domain of the corporation and the state have increased.  Below is a low-lying-fruit analysis of the subject in question - not an exhaustive legal account, which would be a valuable document.

Under Bush, we acquiesced (or allowed the Congressional acquiescence) to the Military Commissions Act of 2006 (MCA) as well as an assault on the Foreign Intelligence Surveillance Act of 1978 (FISA).  Certain provisions in the MCA constituted an unconstitutional encroachment on habeas corpus.  For good reason the Supreme Court suspended those provisions in 2008 in Bourmediene v. Bush.  It is worth noting that habeas corpus is a fundamental component of the rule of law.  Furthermore, it is well established that Bush ordered and the National Security Agency implemented domestic wiretapping without the legally required use of FISA courts - perhaps even before 911.  The subject remains largely unresolved today.  

Under Obama, we have acquiesced to the National Defense Reauthorization Act of Fiscal Year 2012 (NDAA), including Section 1021 which constitutes an assault on the Posse Comitatus Act of 1878, habeas corpus, and due process - another fundamental component of the rule of law.  Section 1021 affirms existing authority under the Authorization for Use of Military Force of 2001 (AUMF) to detain via our national military anyone without trial and indefinitely or at least until the end of "hostilities" authorized by AUMF, which has already been 11 years.  (See update below regarding Section 1021.)  

Attorney General Eric Holder has even attempted to argue that the executive can conduct due process itself based on legal theory that he has apparently developed, not unlike the legal methodology of former Department of Justice attorney John Yoo, who some argue committed war crimes during the Bush presidency.  The overall consensus regarding the actions of Holder and Yoo could easily differ overtime.  But the use of new administrative interpretations of law rather than established judicial interpretations transcends presidencies. 

Under both Bush and Obama, we have had to swallow the Patriot Act of 2001 and its reauthorizations as well as assaults on the War Powers Clause of the US Constitution (WPC) and perhaps the War Powers Resolution of 1973 (WPR).*  Ironically, Bush seems to have appealed to these last two pieces of legislation in invading Afghanistan; of course he did not with the Iraq War.  The issue of either legislation barely came up in the context of the Libyan Civil War.  In part as a result, one member of the House of Representatives, Walter Jones (R-North Carolina), has introduced a preemptive presidential impeachment bill given the WPC

The Patriot Act is not an easy subject to deconstruct.  It is a large document that has sunset provisions, has gone under multiple reauthorizations, and also possesses provisions, for example involving "national security letters", that have been partially struck down in federal court.  Nevertheless, some argue that Section 215 is at odds with traditional notions of search and seizure - another fundamental component of the rule of law.  In a provocative letter to Eric Holder, Senators Wyden (D-Oregon) and Udall (D-Colorado) addressed the "problem of secret law" and the "subject of secret legal interpretations" involving 215.  Wyden and Udall wrote we "believe most Americans would be stunned to learn details of how these secret court opinions have interpreted Section 215 of the Patriot Act."  Obama's relationship to the Patriot Act clearly deserves greater attention.  

However, a more exhaustive analysis of the Patriot Act or even Section 215 alone is beyond the scope of this blog; it is worth noting that the act has been more effective in addressing money laundering, immigration, fraud, and drug crimes than terrorism, which brings into focus an important question: what is the relationship between the intention of those who support the act and the actual impacts of the act?  I leave this question for the reader to consider. 

In conclusion, many people have proffered the argument that contemporary security risks require the weakening of certain rights.  To an extent this argument might have validity.  To an extent that argument is still axiomatically false.  To sacrifice our rights is to sacrifice our nature as Americans.  The act of sacrificing our rights is itself a destruction of our content.

As our civil liberties diminish and the technology and practice of surveillance sharpen, the real questions of economic history remain unanswered.  When we consider the above matters along with other cases such as Santa Clara County v. Southern Pacific Railroad** and Citizens United v. Federal Election Commission, we might legitimately speculate that the corporate and political elite have got the average person in a stranglehold today.  It is, however, a semi-conscious stranglehold where the average person has played a role in his own undoing by not voicing more dissent, which I encourage you to do.


*  The WPR has been more or less the the whipping boy of all presidents since its creation.  Perhaps with exceptions of Presidents Nixon, Ford and Carter, all presidents since its creation have largely ignored the WPR.  (I want to acknowledge that the WPR is itself not a cut and dry subject; many people question its own constitutionality.) 

**  This case is the foundation for laws that have established corporate personhood.