Preface: Some defendants are no longer allowed to see the "secret evidence" which the government is using against them. See this and this.
The U.S. Supreme Court has ruled that judges can throw out cases because they don't like or believe the plaintiff ... even before anyone has had the chance to conduct discovery to prove their case. In other words, judges' secret biases can be the basis for denying people their day in court, without even having to examine the facts. Judges are also becoming directly involved in politics with the other branches of government.
Claims of national security are being used to keep the shenanigans of the biggest banks and corporations secret, and to crush dissent.
But this essay focuses on something else: the fact that the laws themselves are now being kept secret.
America is supposed to be a nation of laws which apply to everyone equally, regardless of wealth or power.
Founded on the Constitution and based upon the separation of powers, we escaped from the British monarchy - a "nation of men" where the law is whatever the king says it is.
However, many laws are now "secret" - known only to a handful of people, and oftentimes hidden even from the part of our government which is supposed to make laws in the first place: Congress.
The Patriot Act
Congress just re-authorized the Patriot Act for another 4 years.
However, Senator Wyden notes that the government is using a secret interpretation of the Patriot Act different from what Congress and the public believe. Senator Wyden's press release yesterday states:
Speaking on the floor of the U.S Senate during the truncated debate on the re-authorization of the PATRIOT ACT for another four years, U.S. Senator Ron Wyden (D-Ore.) – a member of the Senate Select Committee on Intelligence -- warned his colleagues that a vote to extend the bill without amendments that would ban any Administration’s ability to keep internal interpretations of the Patriot Act classified will eventually cause public outrage.As TechDirt points out:Known as Secret Law, the official interpretation of the Patriot Act could dramatically differ from what the public believes the law allows. This could create severe violations of the Constitutional and Civil Rights of American Citizens.
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I have served on the Senate Intelligence Committee for ten years, and I don’t take a backseat to anybody when it comes to the importance of protecting genuinely sensitive sources and collection methods. But the law itself should never be secret – voters have a need and a right to know what the law says, and what their government thinks the text of the law means, so that they can decide whether the law is appropriately written and ratify or reject decisions that their elected officials make on their behalf.
It's not just the public that's having the wool pulled over their eyes. Wyden and [Senator] Udall are pointing out that the very members of Congress, who are voting to extend these provisions, do not know how the feds are interpreting them:Here's Wyden's speech on the Senate floor.As members of the Senate Intelligence Committee we have been provided with the executive branch's classified interpretation of those provisions and can tell you that we believe there is a significant discrepancy between what most people - including many Members of Congress - think the Patriot Act allows the government to do and what government officials secretly believe the Patriot Act allows them to do.
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By far the most important interpretation of what the law means is the official interpretation used by the U.S. government and this interpretation is - stunningly -classified.
What does this mean? It means that Congress and the public are prevented from having an informed, open debate on the Patriot Act because the official meaning of the law itself is secret. Most members of Congress have not even seen the secret legal interpretations that the executive branch is currently relying on and do not have any staff who are cleared to read them. Even if these members come down to the Intelligence Committee and read these interpretations themselves, they cannot openly debate them on the floor without violating classification rules.
The Surveillance State and Unauthorized Wars
Former constitutional lawyer Glenn Greenwald noted last week:
The government's increased ability to learn more and more about the private activities of its citizens is accompanied -- as always -- by an ever-increasing wall of secrecy it erects around its own actions. Thus, on the very same day that we have an extension of the Patriot Act and a proposal to increase the government's Internet snooping powers, we have this:
The Justice Department should publicly release its legal opinion that allows the FBI to obtain telephone records of international calls made from the U.S. without any formal legal process, a watchdog group asserts.
***The decision not to release the memo is noteworthy... By turning down the foundation's request for a copy, the department is ensuring that its legal arguments in support of the FBI's controversial and discredited efforts to obtain telephone records will be kept secret.
What's extraordinary about the Obama DOJ's refusal to release this document is that it does not reveal the eavesdropping activities of the Government but only its legal rationale for why it is ostensibly permitted to engage in those activities. The Bush DOJ's refusal to release its legal memos authorizing its surveillance and torture policies was unquestionably one of the acts that provoked the greatest outrage among Democratic lawyers and transparency advocates (see, for instance, Dawn Johnsen's scathing condemnation of the Bush administration for its refusal to release OLC legal reasoning: "reliance on 'secret law' threatens the effective functioning of American democracy" and "the withholding from Congress and the public of legal interpretations by the Justice Department Office of Legal Counsel (OLC) upsets the system of checks and balances between the executive and legislative branches of government."
The way a republic is supposed to function is that there is transparency for those who wield public power and privacy for private citizens. The National Security State has reversed that dynamic completely, so that the Government (comprised of the consortium of public agencies and their private-sector "partners") knows virtually everything about what citizens do, but citizens know virtually nothing about what they do (which is why WikiLeaks/CIA specifically and whistle-blowers generally, as one of the very few remaining instruments for subverting that wall of secrecy, are so threatening to them). Fortified by always-growing secrecy weapons, everything they do is secret -- including even the "laws" they secretly invent to authorize their actions -- while everything you do is open to inspection, surveillance and monitoring.
This dynamic threatens to entrench irreversible, absolute power for reasons that aren't difficult to understand. Knowledge is power, as the cliché teaches. When powerful factions can gather unlimited information about citizens, they can threaten, punish, and ultimately deter any meaningful form of dissent ...
Conversely, allowing government officials to shield their own conduct from transparency and (with the radical Bush/Obama version of the "State Secrets privilege") even judicial review ensures that National Security State officials (public and private) can do whatever they want without any detection and (therefore) without limit or accountability. That is what the Surveillance State, at its core, is designed to achieve: the destruction of privacy for individual citizens and an impenetrable wall of secrecy for those with unlimited surveillance power. And as these three events just from the last 24 hours demonstrate, this system -- with fully bipartisan support --- is expanding more rapidly than ever.
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So patently illegal is Obama's war in Libya as of today that media reports are now coming quite close to saying so directly; see, for instance, this unusually clear CNN article today from Dana Bash. As a result, reporters today bombarded the White House with questions about the war's legality, and here is what happened, as reported by ABC News' Jake Tapper:
Talk about "secret law." You're not even allowed to know the White House's rationale (if it exists) for why this war is legal. It simply decrees that it is, and you'll have to comfort yourself with that. That's how confident they are in their power to operate behind their wall of secrecy: they don't even bother any longer with a pretense of the most minimal transparency.
Secret Memos
Secret laws are not a brand new problem.
As I've previously noted:
Scott Horton - a professor at Columbia Law School and writer for Harper's - says of the Bush administration memos authorizing torture, spying, indefinite detention without charge, the use of the military within the U.S. and the suspension of free speech and press rights:
We may not have realized it at the time, but in the period from late 2001-January 19, 2009, this country was a dictatorship. The constitutional rights we learned about in high school civics were suspended. That was thanks to secret memos crafted deep inside the Justice Department that effectively trashed the Constitution. What we know now is likely the least of it.Yale law professor Jack Balkin agrees, writing that the memos promoted "reasoning which sought, in secret, to justify a theory of Presidential dictatorship." Constitutional law professor Jonathan Turley says that the memos are the "very definition of tyranny". And former White House counsel John Dean says "Reading these memos, you've gotta almost conclude we had an unconstitutional dictator."
State of Emergency Cuts the Constitutional Government Out of the Picture
The United States has been in a declared state of emergency from September 2001, to the present. Specifically, on September 11, 2001, the government declared a state of emergency. That declared state of emergency was formally put in writing on 9/14/2001:So continuity of government laws were enacted without public or even Congressional knowledge, and neither the public or even Congress members on the Homeland Security Committee - let alone Congress as a whole - are being informed of whether they are still in effect and, if so, what laws govern.
That declared state of emergency has continued in full force and effect from 9/11 to the present. President Bush kept it in place, and President Obama has also.A national emergency exists by reason of the terrorist attacks at the World Trade Center, New York, New York, and the Pentagon, and the continuing and immediate threat of further attacks on the United States.NOW, THEREFORE, I, GEORGE W. BUSH, President of the United States of America, by virtue of the authority vested in me as President by the Constitution and the laws of the United States, I hereby declare that the national emergency has existed since September 11, 2001 . . . .
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On September 10, 2010, President Obama declared:The Washington Times wrote on September 18, 2001:Section 202(d) of the National Emergencies Act, 50 U.S.C. 1622(d), provides for the automatic termination of a national emergency unless, prior to the anniversary date of its declaration, the President publishes in the Federal Register and transmits to the Congress a notice stating that the emergency is to continue in effect beyond the anniversary date. Consistent with this provision, I have sent to the Federal Register the enclosed notice, stating that the emergency declared with respect to the terrorist attacks on the United States of September 11, 2001, is to continue in effect for an additional year.
The terrorist threat that led to the declaration on September 14, 2001, of a national emergency continues. For this reason, I have determined that it is necessary to continue in effect after September 14, 2010, the national emergency with respect to the terrorist threat.
***Simply by proclaiming a national emergency on Friday, President Bush activated some 500 dormant legal provisions, including those allowing him to impose censorship and martial law.
Continuity of Government ("COG") measures were implemented on 9/11. For example, according to the 9/11 Commission Report, at page 38:
At 9:59, an Air Force lieutenant colonel working in the White House Military Office joined the conference and stated he had just talked to Deputy National Security Adviser Stephen Hadley. The White House requested (1) the implementation of continuity of government measures, (2) fighter escorts for Air Force One, and (3) a fighter combat air patrol over Washington, D.C.***
The Washington Post reported in March 2002 that "the shadow government has evolved into an indefinite precaution." The same article goes on to state:
Assessment of terrorist risks persuaded the White House to remake the program as a permanent feature of 'the new reality, based on what the threat looks like,' a senior decision-maker said.As CBS pointed out, virtually none of the Congressional leadership knew that the COG had been implemented or was still in existence as of March 2002:
Key congressional leaders say they didn’t know President Bush had established a “shadow government,” moving dozens of senior civilian managers to secret underground locations outside Washington to ensure that the federal government could survive a devastating terrorist attack on the nation's capital, The Washington Post says in its Saturday editions.Similarly, the above-cited CNN article states:
Senate Majority Leader Thomas A. Daschle (D-S.D.) told the Post he had not been informed by the White House about the role, location or even the existence of the shadow government that the administration began to deploy the morning of the Sept. 11 hijackings.
An aide to House Minority Leader Richard A. Gephardt (D-Mo.) said he was also unaware of the administration's move.
Among Congress's GOP leadership, aides to House Speaker J. Dennis Hastert (Ill.), second in line to succeed the president if he became incapacitated, and to Senate Minority Leader Trent Lott (Miss.) said they were not sure whether they knew.
Aides to Sen. Robert C. Byrd (D-W. Va.) said he had not been told. As Senate president pro tempore, he is in line to become president after the House speaker.
Indeed, the White House has specifically refused to share information about Continuity of Government plans with the Homeland Security Committee of the U.S. Congress, even though that Committee has proper security clearance to hear the full details of all COG plans.Senate Majority Leader Tom Daschle, D-South Dakota, said Friday he can't say much about the plan.
"We have not been informed at all about the role of the shadow government or its whereabouts or what particular responsibilities they have and when they would kick in, but we look forward to work with the administration to get additional information on that."
Specifically, in the summer 2007, Congressman Peter DeFazio, on the Homeland Security Committee (and so with proper security access to be briefed on COG issues), inquired about continuity of government plans, and was refused access. Indeed, DeFazio told Congress that the entire Homeland Security Committee of the U.S. Congress has been denied access to the plans by the White House (video; or here is the transcript). The Homeland Security Committee has full clearance to view all information about COG plans. DeFazio concluded: "Maybe the people who think there’s a conspiracy out there are right”.
As University of California Berkeley Professor Emeritus Peter Dale Scott warned:
Indeed, continuity of government plans are specifically defined to do the following:If members of the Homeland Security Committee cannot enforce their right to read secret plans of the Executive Branch, then the systems of checks and balances established by the U.S. Constitution would seem to be failing.
To put it another way, if the White House is successful in frustrating DeFazio, then Continuity of Government planning has arguably already superseded the Constitution as a higher authority.
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- Those within the new government would know what was going on. But those in the “old government” – that is, the one created by the framers of the Constitution – would not necessarily know the details of what was happening
- Normal laws and legal processes might largely be suspended, or superseded by secretive judicial forums
See this, this and this.
- The media might be ordered by strict laws – punishable by treason – to only promote stories authorized by the new government
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In 2007, President Bush issued Presidential Directive NSPD-51, which purported to change Continuity of Government plans. NSPD51 is odd because:
- NSPD51 was passed without Congressional input
- Even the New York Times wrote in an editorial:
Beyond cases of actual insurrection, the President may now use military troops as a domestic police force in response to a natural disaster, a disease outbreak, terrorist attack, or to any ‘other condition.’ Changes of this magnitude should be made only after a thorough public airing. But these new Presidential powers were slipped into the law without hearings or public debate.
Postscript: As I've repeatedly noted, economics, politics and law are inseparable and intertwined. As Aristotle pointed out thousands of years ago, "The only stable state is the one in which all men are equal before the law." Without the rule of law, the state crumbles, and the government bonds and other investments crumble with it.
As :
What's the hole that is swallowing up the economy? The failure to follow the rule of law.
The rule of law is what provides trust in our economy, which is essential for a stable economy.
The rule of law is the basis for our social contract. Indeed, it is the basis for our submission to the power of the state.
We are supposed to be a nation of laws, not of men. That's what humanity has fought for ever since we forced the king to sign the Magna Carta.
Indeed, lawlessness - the failure to enforce the rule of law - is dragging the world economy down into the abyss....
I'm just sick and tired of hearing this mantra of service members who have paid the ultimate price for our freedom, etc. etc etc. What freedom is that? Freedom for a few psychopathic bankers and war contractors and their paid off politicians to make trillions off of the lives of our youth and to put us as nation into debt that we can never repay. Stick a Chinese made flag on the graves and falsely think this is a tribute.
Soldiers do fight for one freedom. To try and save their fellow grunts to be free to go back home alive and intact. Sometimes that works, sometimes it doesn't.
How many times do we have to repeat the words of General Smedley Butler that "war is a racket?" You either get it or you don't. Most don't. Many are afraid of this truth, they don't want to know.
I'm not into bashing soldiers.Most were forced into it. My grandfather was in WWI, wounded in the head and gassed. Although not disabled, he received a $4 to $8 check each month for his troubles and for a farmer who often lived from crop to crop in the 20's and 30's, that money was often his only cash flow. He brought home a Luger that he took off a dead German, maybe a farmer like himself and I fondled that pistol hundreds of times as kid. War was cool back then in the imagination of a child.
My father saw the writing on the wall and joined the Army Air Force days after Pearl Harbor. He was placed in a radar outfit, had a couple of close calls with German bombs while in England but made it through unscathed.
Neither of these folks ever wanted to talk about their war experiences, my grandfather especially. He just said it was bad and refused to say anything else. Getting my father to relate his experience was also difficult. What he did say was usually about the 'good times' he had. Both went to their graves after a long life and as far as I know always believed the wars were just. They did not question their government and didn't want me to.
Vietnam was the turning point. We learned to question and were not afraid to do so. By age 14 I already knew something wasn't right. I could see in the faces and eyes of those returning. They were changed forever and not for the best. At age 17 my childhood friend Eric was killed exactly 3 months after setting foot in Vietnam. He got his name on a black wall many years later and that's it. I was pissed in 1969 and have been ever since.
Others I knew also died there or came back without a leg or without a heart. I've outlived many who returned and Vietnam killed them over here as surely as it killed them over there.
And yes, I'll say it. It needs to be said. They died in vain.
Our soldiers still die nearly every day. Still in vain. The myth of "it's for our freedoms" continues to this day and as with all false mythology, it needs to end.
I don't really know what to do about it. Just keep ranting and raving I suppose. Keep talking to our neighbors and friends about it even if they don't want to hear it, even if they are afraid of the truth. And especially try to discourage the kids from following in the footsteps of the deceived.
We can still have our war memorials and Memorial Day but perhaps the focus could be something different ... like Never Again.
Posts
Public declarations of statesman can convey belief and intention. Often, one must strain to discern them as they are hedged by qualifications and contingent references. At other times, the overriding purpose is obfuscation. That becomes the goal when a leader temporizes, is indecisive and disinclined to make decisions on matters that entail risks and costs - be they diplomatic or domestic. Such was the nature of Barack Obama's address on the Middle East last Thursday.
Trying to discern in his remarks the contours of a coherent foreign policy is futile. For the elucidation of a strategic design was not the purpose. Nor was the purpose to stake out a firm position that would be the pivot for future actions re. Palestine, reform movements in those countries where they are being repressed, or Iran. The aim was political – in two senses. The first, primary consideration was to create favorable impressions among the American public - especially the political class – of Obama’s stewardship and the country’s exalted standing in the world. Israel's supporters above all. The secondary objective, I believe, was to shape perceptions of the United States as a sober, responsible and ‘humane’ power whose leadership in the Middle East is indispensable.
Toward that end, Obama took a dual approach. The first element was casting the discourse at a high level of abstraction: "our enduring values and principles," the imperative of economic development, the necessary reconciliation of stability with progressive change. The pronouncement of American commitment to a 'two state' formula to resolve the Palestinian impasse was also abstract even if it had a specific referent. Obama gave no indication of a readiness to alter the servile attitude of the United States toward the willful, unbending Israeli leadership. Words about settlements ring hollow when there is no evident readiness to twist the Israelis’ arms or impose serious sanctions. Reference to a renewed 'peace process' for the umpteenth time is meaningless when there is no plan to include Hamas or even favorable notation of its reconciliation with Fatah. Similarly, a vague passing allusion to Bahrain carries no sign of a shift in priorities that until now has heavily favored reassuring the Gulf autocrats of America's continuing devotion to their partnership.
The other element in Obama's address was stylistic. Rather than formulate an integrated strategy that was politically and intellectually coherent, Obama chose to present a sort of collage or, perhaps more accurately, a modernistic painting a la Kandinsky. That involved displaying on the canvas (the minds of his audience) arresting images in various shapes and splashes of color along with stray lines, vaguely connected to each other, that commented upon the bright passages. All the components were chosen with care to evoke certain impressions and images. Bows to the greatness of the Arab past; conjuring in vivid terms the specter of endless war that must be exorcised; pious allusion to the Divine spark and our eternal longing to comport with our better angels; presenting America in its Sunday best – the virtuous power with the means and will to promote the enlightened interests of everyone in the Middle East. In short, America under the leadership of Barack Obama is the one best hope of Muslims, Jews and Christians alike.
These unoriginal materials were speckled throughout the speech, suitably attired for the grand occasion. They give tone and were meant to be felt as tokens of earnestness while creating a mood of uplift.
We have heard all of this before - in Cairo, at the Nobel ceremony in Oslo. The overall composition, as well as its individual ingredients, is designed to play on feeling rather than to engage thought. Certainly not critical cognition. These are not dots, data points, encouraging you to connect them by your own applied intellect. They are an invitation to see reality in the speaker’s terms without the audience’s sensing the artist’s guiding hand. This is the way non-representational art works, when there is intelligent intent behind its creation.
The tangible recognizable bits (Egypt, Tunisia, a visionary Israel/Palestine) are interspersed throughout not for the purpose of instruction. Rather, they are intended to ensure that your thoughts/feelings about them should be made favorable by the composition of evocative symbols that surrounds them. Oratory of this nature is meant to leave a lasting impression. An impression of the person and his conduct whose afterglow will cast in a becoming light all else that will (or will not) emanate from him. It burnishes his persona. It is but a highlight in a campaign – a campaign to make of a virtual reality to which there is no commitment to make actual, seem genuine.
This is vintage Obama. He sets himself tests not of tangible accomplishment but of rhetorical creation. Gratification comes from assembling the pieces so that seem to hang together- that they make the desired impression, that they punctuate the moment and shape political imagery in the future long enough, and with a deep enough impression, to fend off the critical judgments of initiatives that never come, of half-measures that are never completed, of goals that fade further into the horizon.
This time, it will not work. For those in the vanguard of Middle East reform, we have shown ourselves the well-wisher of democracy but the hand holder of autocracy. We embrace freedom when it is cheap and easy. We speak of self determination, but Palestinians are denied succor except for the stale words that catch in the throat. We pronounce the desire to put the war on terror in perspective, yet we prosecute war unrelentingly in Afghanistan and elsewhere while clumsily intervening in the combustible affairs of Pakistan. We paint pictures of a new era of cooperation, yet balk at even considering possible engagement of the Iranians on anything but our own terms. We speak of regional harmony, while contributing directly and indirectly to a looming war of Armageddon between Sunnis and Shi’ites.
The past five months has seen events of historic importance: the upheavals of the Arab Spring whose repercussions continue to register; the Hamas-Fatah political reconciliation; and the Osama bin-Laden affair. All of American strategy is challenged thereby, its premises undermined, its aims misaligned with new realities, its tactics losing viability, America's standing losing credibility. Yet nothing in Washington's mentality changes. That is confirmed by Obama’s high-minded and high sounding speech that uses the lexicon of change, of resetting, but instead leaves all the essentials in place.