We are a nation founded on certain bedrock principles. Among them are the rights guaranteed by our Bill of Rights, which include the free exercise of religion, free speech, free press, the right to keep and bear arms, the right to be secure from unreasonable searches and seizures, and the right not to self-incriminate. These liberties, and others like them, are non-negotiable. They are basic human rights, part of what political theorists (and theologians, for that matter) call the ‘natural law.’ A just government must be their guarantor, and I have always believed that our government is, on the whole, just.
For the first time in my life, I am not so sure any more.
I heard a lot of talk in the 2008 Presidential election cycle (and before) about the supposed erosion of civil liberties under President George W. Bush (R), with accusers often pointing to the Patriot Act and similar anti-terror laws that arose in the post-9/11/2001 world. I had concerns about certain aspects of those laws, but I also recognized the magnitude of the threat and the necessity of strong defensive action. Throughout our national history, our courts have recognized that certain encroachments on civil liberties in times of war are acceptable and even necessary.
None of Bush’s policies were particularly out-of-step with those traditions. Warrantless wiretaps of phone calls to or from overseas numbers are perfectly legal, and always have been. Military tribunals have been used to try war criminals in every war we’ve ever fought—most notably under President Franklin D. Roosevelt (D), who used them to try German saboteurs captured on U.S. soil during World War II (which was upheld by the U.S. Supreme Court in Ex parte Quirin, 317 US 1 (1942)). Guantanamo Bay detention facilities were used to house war criminals who have no standing under our legal system or, in fact, under the Geneva Conventions either (as they do not meet the clearly-stated definition of ‘Prisoner of War’).
When people tell me that our liberty was significantly eroded under Bush, I ask them to point to any concrete examples (besides those already mentioned, which have no merit). So far, I have not seen a single reputable report of any U.S. citizen’s civil rights being violated due to the Patriot Act or other anti-terror laws, excluding the few U.S. citizens who hitched their wagon to al-Qaeda, which (by their own choice) moves them from the civil legal framework to the wartime tribunal framework—no different than if a U.S. citizen had decided to fight against us with the Nazis in World War II.
President Barack Obama (D) campaigned against the Patriot Act, Guantanamo, domestic wiretaps, and military tribunals but, after taking office, left all of them in place (with occasional cosmetic changes). Good. I have little to complain about with regard to Obama’s anti-terror policies, which remain largely un-changed from those of his predecessor. Obama has been criticized by some civil libertarians for signing the National Defense Authorization Act (NDAA) into law, which formally codifies some of these existing war powers. These criticisms are largely unwarranted. In times of war, Presidents have broad authorities to act in the national defense. And make no mistake: though we have been distracted by our economic troubles, the military withdrawal from Iraq, and the upcoming withdrawal from Afghanistan, we are most definitely still at war. We have made serious inroads against radical Islamic terror, but we are not done yet.
Curiously though, the president who promised to ‘restore’ the civil liberties that had supposedly been ‘eroded’ under big, bad President Bush has mounted a number of erosions all his own—and not just theoretical ones like those under Bush, but actual, documented examples of civil rights violations that have actual, real-world victims.
In March 2010, the then-Democratic super-majorities in Congress passed the Patient Protection and Affordable Care Act, colloquially (though inaccurately) known as ‘ObamaCare.’ This euphemistically-named health care reform law will compel all Americans to purchase health insurance, whether they want it or not, in a clear violation of Tenth Amendment limitations on federal authority. You will no longer have the right to choose how you wish to fund your health care (or, for that matter, if you want to fund it at all). Mommy government will tell you what to do, and you’ll comply or face fines and possibly even prison time.
Exercising her new authorities under the same law, Health and Human Services Secretary Kathleen Sebelius (D) has decreed that all health insurance plans will be required to cover certain drugs and procedures that many religious groups find objectionable—including contraceptives, sterilizations, and chemical abortions. Religiously-affiliated groups that find these things abhorrent, including Catholic hospitals and charities, will be required to pay for them. This rule, even in its modified ‘compromise’ form, is a clear violation of the First Amendment right to the free exercise of religion; no religious organization can be compelled to pay for or provide something that violates its beliefs. If an employee doesn’t like it, they are free to find employment somewhere else, buy the drug or procedure out-of-pocket, or obtain their own private insurance to cover it.
In June 2010, the U.S. House of Representatives passed a law called the DISCLOSE Act which would significantly limit the First Amendment free speech rights of political advocacy organizations and even allow the Federal Election Commission (FEC) to regulate political blogs (like this one). It was a direct affront to our free speech, free press, and free assembly rights. Thankfully the bill died in the Senate, but it had the full support of the Obama White House.
Meanwhile, under Obama, the Transportation Security Administration (TSA) has suspended the Fourth Amendment right to be secure in our persons against unreasonable search and seizures for anybody who wants to get on an airplane. I am, as you have already read, a supporter of a strong anti-terror policy, and had little objection to the strengthened airport security measures that went into effect following the 9/11/2001 terror attacks. But now, TSA has begun installing ‘millimeter-wave’ and ‘backskatter x-ray’ devices at our airports, subjecting travelers—quite literally—to being photographed nude through their clothes. If you refuse, you are subjected instead to an invasive ‘pat-down’ that involves a kind of touching that would be illegal in any other non-consensual circumstance. By any definition of the word, these searches are ‘unreasonable.’
If that wasn’t enough, the Immigration and Customs Enforcement (ICE) agency has started ‘enforcing’ copyright law by arbitrarily declaring that web sites are involved in the ‘illegal sale and distribution of counterfeit goods and copyrighted works.’ Operating with no apparent legal authority, they then seize these web sites’ domain names and take them off the Internet. This is another clear violation of our Fourth Amendment protections, and violates the age-old legal doctrine that the accused is innocent until proven guilty. Under ICE’s fictional authorities, the web site comes down first, and then the owner has the opportunity to mount a legal defense.
Two bills designed to codify this domain seizure authority into law, the Stop Online Piracy Act (SOPA) and the Protect-IP Act (PIPA), generated outrage across the Internet—and rightfully so. But there was little discussion of the fact that, even without any extant statutory authority, ICE is already doing what SOPA and PIPA would have ‘allowed’ them to do. It turns out that ICE isn’t alone either; the U.S. Secret Service seems to be joining the party. Many U.S. Internet businesses are already contemplating moving their assets overseas to protect themselves from the American government.
Federal prosecutors in Obama’s Justice Department have also attempted to suspend the Fifth Amendment right not to self-incriminate. In our legal system, the burden of proof is on the accuser: when you are charged with a crime, prosecutors must prove that you committed the crime ‘beyond a reasonable doubt.’ You, as the accused, cannot be compelled to help the prosecution incriminate you. Well, in United States v. Fricosu (10-cr-00509-REB-02), the prosecution argued that the accused must provide a password to allow prosecutors to access encrypted data on her computer—another clear civil rights violation.
Absurdly, Judge Robert Blackburn agreed with the prosecutors and ordered Fricosu to decrypt the laptop. Since Blackburn is a Bush appointee, this might actually be a rare documented case of Obama’s predecessor trampling our civil rights . . . it’s a bit of a stretch though. Blackburn’s idiotic ruling was overturned on appeal, but not until after the accused spent time in a federal prison for refusing to comply with the court order to decrypt her computer and self-incriminate.
And those are just the big, obvious affronts—all of which have happened on President Obama’s watch. Don’t get me wrong; although I have many political disagreements with our president, I also know how our government works. The so-called ‘ObamaCare’ health care law was actually a product of the then-Democratic controlled Congress and was crafted with relatively little White House involvement. The contraceptive mandate comes from Secretary Sebelius’s office. The TSA nude-photo policies come from TSA director John Pistole. The ICE and Secret Service’s Internet censorship come from within those respective agencies. SOPA and PIPA originated out of Republican and Democratic bipartisanship in Congress, although Obama was ‘for them before he was against them’ in the John Kerry style. Federal prosecutors in the Fricosu case almost certainly operate with little or no White House oversight.
What is stunning, however, is the lack of leadership from Obama on these and other issues. If I were the president, and one of my appointees put a proposal an my desk that ran completely counter to the Bill of Rights, I would either stop it or fix it. The president swears an oath to “preserve, protect and defend the Constitution of the United States;” and I, for one, would take that oath seriously.
The more I observe this administration in action though, the more I feel like the bureaucracy and the appointees are running their own shows with little guidance and oversight from the top. A president should surround himself with bright, skilled appointees, but he should also moderate their policies by constantly considering the ‘big picture.’ Of course a hard-liner anti-terror appointee, who is an appropriate choice for an agency like the TSA, will push hard for using all available technology to stop terror attacks. Fair enough. It is the President’s job to take those recommendations and weigh them against other concerns, like the civil rights of travelers, and direct the overall policy. That doesn’t seem to be happening here.
But wherever the policies are coming from, and whoever bears the blame for them, the fact remains that America is very different today than it was only a few short years ago—and not for the better. American religious organizations are finding their most basic ‘free exercise’ rights up for debate. American Internet businesses face arbitrary government shut-downs and censorship, and have to make contingency plans for moving overseas. To get on a plane you have to submit to being photographed nude. Courts order you to self-incriminate. Men and women sworn to uphold the Constitution bring forth bills like DISCLOSE, SOPA, and PIPA that would rip it to shreds. How did we get here? More importantly, how do we get back?
I wish I knew.