Lies the government told you (38 page)
It is clear, then, that the lawyers who wrote the torture memos and facilitated the Bush administration’s torture policy, are not merely guilty of exercising poor judgment; they disregarded their honorable role in our government and involved themselves in a criminal conspiracy. The Department of Justice must investigate and prosecute these lawyers to show that the guidelines they set for the CIA were illegal and essentially worked as a permission slip for CIA agents to violate the law. If we have any respect for our laws or any sense of justice, we must show that this behavior will not be tolerated.
By the way, we also need to prosecute the OLC lawyers. We are legally bound by the Convention Against Torture to submit any case alleging torture by a person within our jurisdiction “to . . . competent authorities for the purpose of prosecution.”
90
Mr. President and Attorney General Holder, what are you waiting for
?
We Allowed It
Depriving people of natural rights without due process is wrong, immoral, criminal, and unconstitutional; torture is the same, except that it can
never
be lawful or moral, since it is even prohibited after or as a result of due process. Yet, it seems that throughout history, we continue to restrict the rights of those who scare us. Bush administration personnel believed they were above the law and did horrible things in the name of “protecting our country.” After the atrocities of September 11th, some people actually agreed with the Bush administration and believed that the terrorists, or even potential terrorists, or even people the President thinks wanted to be terrorists, somehow deserve this treatment. Dick Cheney believes that “enhanced interrogations” were “essential, justified, successful, and the right thing to do.”
Nevertheless, we are country of laws, and not of men. No one in the government can disregard the law because we’re living under special circumstances. Depriving people of due process is against the law. Torture is against federal and state law, and it violates the Natural Law and the Constitution. We must recognize this fact, and prevent the government from doing this again. We must be skeptical of the government,
especially
during times of national crisis or fabricated national crisis.
Imagine living in a world where the police can search your home without your knowledge at any time day or night; where the government listens to your telephone calls, and your mail is customarily opened and read; where even the Internet does not provide a safe haven for you to speak out, because every Web site you visit and e-mail you write and keystroke you press is filed away for the police to reference, as is a record of every book you ever buy or borrow from the library; where even your most private records, like your medical or financial or legal records, are subject to prying eyes.
Now imagine that you could be arrested and held indefinitely based on what you wrote or said, or even on the mere suspicion that you were not wholeheartedly supportive of the current regime. Sounds terrifying? Well, do not breathe a sigh of relief that you are lucky enough to have avoided such fate, because what you are imagining is the United States of America
circa
2010. These imaginings, which invoke memories of Soviet Russia or Nazi Germany or Orwell’s
1984
, are all permitted by provisions in the USA Patriot Act, signed into law by President George W. Bush and enforced by President Barack Obama.
The United States of America is the country that most people around the world associate with freedom. The American Dream is the dream of those in the farthest corners of the world, where countries are run by despots and people fear to speak. The Land of the Free calls to those who dream of a country where freedom still reigns. It is the dream of those who are scared that they might at any moment disappear because they said the wrong thing, because they put forth an opinion that might not have pleased those in power.
As we discussed in Lie #13, unbelievable as it may seem, the benignly titled
Patriot Act has very little to do with patriotism and protection from terrorism and much to do with the grasp for power that the federal government is so fond of. It is perhaps not surprising that the government would miss the irony of entitling this atrocity, which the ultimate patriots, our Founding Fathers, would have revolted against. The American Revolution, after all, was caused by the high rate of taxation imposed on the colonies by England. If taxes incited the Founding Fathers to tarring and feathering, I can only imagine what the agents of the government would be subjected to if they had proposed such a thing as the Patriot Act.
Well, the America of today is quite different than the Founding Fathers would have ever imagined. And it is quite different than what the citizens of this country imagine today. Benjamin Franklin once said, “They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety.” And if he were to take a look at the America of today, he would say that we deserve none of the liberties, which we so easily surrendered in fear, through deception, in the stated purposes of a search for national security.
The government found it so easy to deceive us, found that when we were scared, we would throw ourselves at its mercy, in order to feel safe. National security, they claimed, was attainable and the Patriot Act, which of course would require our patriotism and sacrifice, would help them attain it, never explaining that it would be at the cost of individual fundamental liberties that once made America the dream of the oppressed.
All We Have to Fear Is Fear Itself
(and, of Course, Those Scheming Frenchmen)
Many assume that the power grab and ensuing denials of people’s rights brought by the Patriot Act have no precedents in American history. Sadly, that is not the case. The federal government has used fear to grasp our rights since the dawn of this country, and even John Adams, a Founding Father, used that fear after he became president and signed the Alien and Sedition Acts of 1798 into law. The fear was caused by what is now known as the XYZ affair, a French-American diplomatic incident.
“Fear is the Foundation of Most Governments.”
—President John Adams
The United States government has developed a rich tradition of restricting the freedoms of groups of people that it believes or wants the public to believe pose a security threat, especially during times of war and national crisis. In 1798, the United States was nearing war with France. The Federalists (Washington, Adams, Hamilton, to name a few) controlled the executive and legislative branches of government, but felt threatened by the ideas emanating from the French Revolution. They believed that the Democratic-Republicans, also called anti-Federalists ( Jefferson, Madison, and Monroe, to name a few) who espoused these “French” views, would motivate aliens living in the United States to support the French.
1
To suppress these ideas, Congress enacted the Alien and Sedition Acts over the summer of 1798.
The Sedition Act victimized Matthew Lyon, a Republican congressman from Vermont, during his reelection campaign.
2
Lyon published an article attacking the Adams administration and declaring that “every consideration of the public welfare [was] swallowed up in a continual grasp for power, in an unbounded thirst for ridiculous pomp, foolish adulation, and selfish avarice.” The government made it impossible for Lyon to prevail at his trial. The trial judge instructed the jury that it must find “malicious intent,” an element of the crime,
unless
the statement “could have been uttered with any other intent than that of making odious or contemptible the President and the government, and bringing them both into disrepute.” Lyon could have defended himself by proving the
truth
of his statements, but this was quite the difficult task, as his statement was an
opinion
.
The jury convicted the Congressman and the judge sentenced Lyon to a $1,000 fine and four months in jail. It can be said that Lyon got the last laugh, however, as he was reelected while in prison! The Sedition Act proved to be a disaster for the Federalists politically, as the nation elected a Democratic-Republican by the name of Thomas Jefferson as our third president.
The United States also suppressed the freedom of speech during both the Civil War and World War I. During the Civil War, the Union as well as the Confederacy suppressed opposition newspapers and jailed critics.
3
During World War I, the government passed laws, such as the Espionage Act of 1917, and the Sedition Act of 1918, which criminalized public criticism of the war. German-Americans, labor leaders, and socialists were also subject to government persecution. Moreover, during the Red Scare that followed the Great War, thousands of radicals were arrested, and many aliens were deported.
The Oxymoron of the “Secret” Court of Justice
Following the uproar surrounding the Alien and Sedition Acts, Presidents tended to avoid any public scrutiny of their unconstitutional actions. Rather than attempting to pass unconstitutional laws so that their actions would appear to be legal, some were reckless enough to impair the civil liberties of the people without their knowledge and without the need of Congressional approval and therefore criticisms. Presidents Kennedy and Lyndon B. Johnson routinely wiretapped the telephone calls of those they feared, without search warrants. The most famous example of such action was in the form of President Richard Nixon and the wiretapping of almost anyone of import in Washington, DC. Then he got caught, and his Presidency came to a crashing halt. The permanently upsetting result of JFK’s, LBJ’s, and Nixon’s chicanery is that these illegal actions led to the passage of one of the most intrusive laws in America, the Foreign Intelligence Surveillance Act of 1978, better known as FISA.
The stated purpose of the Act was to protect the citizens of the United States from wiretapping, and it attempted to do this by requiring warrants for any wiretaps. But the warrants were no ordinary warrants from the courts established under the Constitution. Instead, FISA created a new court authorized to approve these wiretap warrants, both the applications for which and orders from would be “maintained under security measures established by the Chief Justice in consultation with the Attorney General and the Director of Central Intelligence.”
4
So, the secret court was created to review secret applications and issue secret decisions. And this was supposed to protect the liberties of the citizens of the United States.
Also, the Act was supposed to be limited to foreign powers and agents of foreign powers, and the primary purpose was to gather foreign intelligence. Well, at least that is how the government sold it, claiming it would protect American citizens from JFK/LBJ/Nixon-like warrantless wiretapping, which would now only be used against foreigners. And it was supposed to provide judicial oversight of the federal government’s surveillance activities while maintaining the confidential nature needed to ensure national security.
The emphasis on oversight and protection of liberties was somewhat tenuous considering that the Act permitted surveillance in the United States without a court order for one year unless the “surveillance will acquire the contents of any communication to which a United States person is a party.”
5
When an American citizen was to be involved, then the government was required to obtain judicial authorization within seventy-two hours
after
the start of surveillance.
So, not only does the Act purport to give the government permission to initiate surveillance against an American citizen without a court order for three days, but once they start surveillance, government agents are not required to provide any federal district court with probable cause of a crime, as the Fourth Amendment requires. Rather, all that is required is that the government go to this secret court and explain that it suspected the American citizen of being involved with a foreigner in potential espionage. The court, which was not required to disclose its records and which would never be open to public scrutiny, was a rubber stamp; a rubber stamp that, between the years of 1979 to 2007, rejected only
nine
of the
25,361
warrant applications submitted to it.
6
Aside from the secrecy granted these FISA courts, the ease with which warrants were granted also stemmed from the much lower threshold for proof that FISA required. Rather than, as in a typical warrant, containing a requirement of probable cause to believe that
the target possesses
evidence of a crime, FISA
only requires that there be probable cause to believe that
the target is an agent of a foreign power
and that the place where the surveillance will be taking place is being used by the foreign power. This means that the only thing the government needs to show is
probable cause
that the target of the surveillance is foreign, not that there is evidence to induce a judicial conclusion that the target is involved in any activity which could be a threat to national security.
The Act also provided the same requirements for physical as well as electronic surveillance. If the requirements for a criminal case were based on FISA, this would mean that if the police wanted to search your house because they suspected you of criminal conduct, all that the officers would have to establish is that there was probable cause to believe that you were you and your house was your house. It would not even have to be certain, just probable, that they were right. Yet somehow, the federal government in the administration of President Jimmy Carter successfully sold the idea to the country that the Act would protect liberties and ensure privacy. And we believed it because of the Cold War, because of the fear of the Soviet Union, because we wanted to be safe, and because we wanted to believe that the government could protect us. We forgot about the right to be left alone.