Civil Liberties Should Unite Us

civil liberties post

In a letter to Senator Rand Paul on Monday, March 4th, Attorney General Eric Holder stated:

“[I]t is possible … to imagine an extraordinary circumstance in which it would be necessary and appropriate … for the president to authorize the military to use lethal force within the territory of the United States.” (.pdf link)

without explicitly excluding U.S. citizens under these vaguely-defined “extraordinary circumstances.” All it takes is a Google search of “rand paul” to see the Senator of Kentucky’s reply to this missive. Two days later Rand Paul held an (almost) thirteen hour filibuster against a vote on confirming CIA director John Brennan. Paul demanded a conclusive response to a “hospitably narrow” question: does the executive branch of government really have carte blanche to use drones against an American citizen within U.S. borders? The day after the marathon filibuster Press Secretary Jay Carney stated that the president does not have the power to “kill an American not engaged in combat on American soil” (without addressing what qualifies as “extraordinary circumstances” or “combat” unsurprisingly), and John Brennan was swiftly confirmed as CIA director. Nonetheless, Rand Paul brought the issue our of eroding civil liberties to the attention of the American public, even if only within a narrow hypothetical situation.

Whatever one thinks of Rand Paul as a politician overall, the concepts he touched on during the filibuster do not fall under the usual partisan distinctions. Civil liberties should be a unifying concept for those from the far right to the far left as it applies to all American citizens regardless of party affiliation.

However, these violations of civil liberties that should unite American citizens of all political stripes rarely do. These expansions of government power are not common knowledge. Those who do have the knowledge mainly use alternative internet resources to spread awareness, only to receive push-back from naysayers on both sides.

If Rand Paul’s thirteen hour filibuster accomplished anything even slightly substantial, it was that for that evening the right and the left were briefly united in standing behind the politicians who demanded answers about the exact nature of increased executive powers. The ACLU supported Paul’s filibuster as well as Code Pink and Van Jones, despite disagreeing with Paul on many issues.

I’m cynical enough to expect that this attention to civil liberties violations et al will fizzle away as it has in the past (e.g., the Patriot Act). This cynicism is in of spite the fact that this extreme example of executive power did not pop up out of nowhere without precedent. In ideal circumstances, some form of unity between the left and right would continue so that we could exercise our rights as citizens to demand answers and to push back on government overreach.

Though in a telling anecdote, my own Senator – Chris Murphy (D) of Connecticut – didn’t seem to be on board the #StandWithRand train:

This constituent feels really secure knowing that this guy who’s supposed to be representing my state thinks that wanting answers about whether the president has the power to assassinate U.S. citizens on U.S. soil is mere “background noise.” I really admire his dedication to preserving the guaranteed freedoms of U.S. citizens over partisan politics. If my senator’s tweet indicates a trend, it’s pretty unlikely that these ideal circumstances will unfold.

With regard to the drone strikes on American citizens, the writ of habeus corpus has been suspended before. In fact, President Lincoln did it during the Civil War. Whether one wants to include that as a hard precedent is optional. The Civil War certainly was an “extraordinary circumstance.” We were at war with fellow Americans who seceded from the Union (I’m a Yankee, so sue me). However, President Roosevelt’s orders to relocate over 100,000 Japanese Americans into internment camps in World War II provides a blatant example of undermining civil liberties. Thousands of Japanese Americans thrown into internment camps were stripped of their basic rights merely because they shared the same ethnicity as America’s enemy. Besides, it’s not as if the president hasn’t had the ability to assassinate people for awhile now (the link takes a very left perspective on the events themselves).

So the fact is that the right to due process has some history of being “suspended.” While that history does not provide an explanation for the acts of the past twelve years, it does put them into perspective.

The Patriot Act grants the government the authority to intercept private communications among citizens without needing probable cause to obtain a search warrant. It’s been used in “extracurricular” situations where terrorism is not the threat at hand and was misused in linking Brandon Mayfield to the 2004 Madrid train bombings.

You’ve heard about the indefinite detention of U.S. citizens being implied in the National Defense Authorization Act.

You’ve heard about the restrictions on an open internet proposed by SOPA and PIPA (which was shut down by millions of citizens making their voices heard). Maybe you’ve heard that CISPA has been introduced again.

Maybe you’ve heard about the Foreign Intelligence Surveillance Act (FISA) which allows the government “to tap any conversation involving U.S. citizens without previously obtaining a warrant, as long as officials suspect those talk involve at least one person located outside of the United States.” HR 347 outlines some common sense precautions regarding protests by the White House, but has raised concerns about possibly changing one’s guaranteed right to protest. This administration has assassinated American citizens overseas. One was sixteen years old.

I’m one of those people who holds the “radical” opinion that all Americans deserve some sort of due process, including those overseas who commit treason. A military tribunal would suffice in place of a trial by jury based on the circumstances and charges, but – at the very least – there should be some sort of process by which these assassination calls are made. Turns out that’s not the case. Here’s the memo about it.

We know about the kill list. We know about the vague references in these bills that can be construed to have many meanings, including those that could restrict basic guaranteed rights if that power were to fall into the “wrong hands” so to speak. The fact that it took a thirteen hour filibuster to receive a definitive answer to the question whether the president has the right to call a drone strike on a U.S. citizen on U.S. soil should send shivers down the spines of the American people. Yes, even though Paul did get a response.

Yes, even though the Justice Department only changed – rather than walk back on – its statements. Many acts that slowly erode our civil liberties have already been passed – or will be passed – in a bipartisan manner and are rarely addressed. Look at the voter rolls for the Patriot Act, the votes for NDAA, the SOPA sponsors, the PIPA sponsors, the sponsors and votes for CISPA, the votes for FISA, and the votes for HR 347. This is the time to bring attention to these issues, right after civil liberties took center stage on the Senate floor.

This is as good a time as any to consider the precedents these laws set for future presidents. Even if one does not think there is anyone in the current leadership who would use these measures against the American people in an aggressive way – one has to consider the possibility of a future ruler rising to power ten, twenty, even fifty years from now. These are laws and measures that a tyrant could manipulate to take away the essential guaranteed liberties of American citizens. This is not a precedent either side should want on the books. These are hypotheticals we shouldn’t even have to ask our government about, since these liberties are “guaranteed” after all.

This is not the time to whine about Rand Paul the politician, or even about politics. This is the prime moment to talk about these issues with people on both sides of the aisle, to amplify these issues and raise awareness. This is the time for those of all stripes to unite in being skeptical of leadership. This is the time for all of those who even slightly care about civil liberties to exercise our First Amendment rights to insist the government respond to the very people it is supposed to represent.

That is, if anybody can take down those partisan blinders for even a few moments.

Mother and armchair philosopher. Small-l libertarian and an advocate for pragmatism -- one's political philosophy does not always align with what is feasible. Best described as a right-winger who marches to the beat of her own drum. Analytic, passionate, and often irreverent. For more writings: sevenlayercake.com

35 Comments

  1. Mike Rotch said:

    Individuals should have rights that originate from the government. Prove me wrong.

    • Jay Caruso said:

      You’re making a claim. Therefore, the responsibility falls on you to back it up not for anybody else to “prove” you’re wrong.

        • Old Monkey said:

          Bastiat’s “The Law” in it’s simplicity, makes the most compelling argument today against Socialism, Communism, and Fascism. Produced at his own expense after France’s 3rd revolution, he was fighting the same evils we currently. Legislators by force of law, compelling fraternity on the unwilling; stealing from one to give to another lecturing to those stolen from about philanthropy.

    • LiberTarHeel said:

      In the first place, one cannot disprove a subjective assertion (“should”). And, as already noted, as the initiator of the assertion, the burden of proof falls on you.

    • Rachel Burger said:

      If that is the case, if we lived in a society without government (state of nature), would we have “permission” to do anything?

    • Oldmonkey said:

      If the rights of an individual come from the government:

      The individual Exists at the pleasure of the government
      The government is the abariter of the individual’s thoughts
      The individual Serves the government

      The notion of a kings, tyrants and legislators shaping the individual last century resulted in misery and death of more people than the current population of Japan.

      Lyscurgus turned Sparta into a failed nation where it was impossible to find either a virgin or anyone sutible for employment in the name of morality.

      Mad Max Robespierre and Rousseau used morality as early Proto-Socialists resulting Socialism, Communism, and National Socialism.

  2. LiberTarHeel said:

    “The Civil War certainly was an “extraordinary circumstance.” We were at war with fellow Americans who seceded from the Union (I’m a Yankee, so sue me).”

    Implicitly deriding secession in an article about rallying to support civil liberties? Bold move! Contradictory, but bold! (No lawsuit follows, however. We secessionists are used to being misrepresented.)

  3. A.J. Winkelspecht said:

    “This is not the time to whine about Rand Paul the politician, or even about politics.”

    Yeah, well… when people keep saying “Rand Paul 2016!” you should expect to hear some whining about politics and Rand Paul the politician.

  4. GrenadiAdrian said:

    This was an excellent article and definitely a strong article to get this site’s attention. You’re absolutely right in that political preferences should not get in the way of addressing something that affects us all equally. You made your points and provided ample sources to back it up. What’s sad is that more people stood up and shouted whenever SOPA was brought to their attention yet aren’t concerned in the least about the potential (and dangerous) infringement on our rights as US citizens in regards to using Drone attacks on US soil. Again, incredible work on this subject. Look forward to reading more from you.

  5. Lawful Plunder said:

    The sacrifice of civil liberties for the purpose of “security” always seems like a reasonable bargain. The “enemy” is out there…ready, willing and able to take vengeance on the U.S. Who wouldn’t be willing to sacrifice a small portion of one’s civil liberties to protect one’s life, or the lives of fellow Americans? In the short-run, it seems to make sense, especially when politicians play up the threat, and they’re the ones with the most sensitive information.

    The problem is, while the bargain in the short-run might make sense….in the long run, the sacrifice of civil liberties for security is a Faustian bargain of the worst kind. As you say, precedents matter! Power ceded to the executive…(with the accompanying loss of civil liberties/privacy rights) may not be used benignly in the future. We should govern with an eye towards the future, not just the exigencies of the moment.

    Great article to start the website!

    • Dave Rice said:

      The future seems to be only as far away as the next refresh of one’s twitter timeline. The populace is far too compliant and seems willing to blindly support whatever policy is put forward by whichever party letter follows the name. Critical thinking has gone the way of the Atari 2600 (it’s in a box somewhere, I just know it). I look forward to robust discussion here, off to a great start today.

      • Lawful Plunder said:

        Agree. Lots of low-information voters out there ready, willing and able to be manipulated. And the furthest thing from their minds is to think of policy proposals in constitutional terms.

        I hope this site becomes a place for thoughtful/intelligent/robust debate. It has great potential.

  6. Bill O'Keefe said:

    1) Secession is illegal. The union of the states perpetual, and indissoluble there is no revocation of the union or division of it except through consent of the entirety of the union. This has been settled law for 145 years.

    2) Rights are imprescriptible and come from natural law in all living and sentient humanoid life. Liberty (the condition of human free agency) exists whether states or government or other people say it does.

    3) Government exists only to protect liberty and our rights from being savaged or dissolved by force of a third party or without our consent (fraudulently)

    4) Government cannot take your rights or liberty away. They can inhibit them temporarily until revolution [by force] resumes the natural state of things.

    • Nick Terry said:

      Secession is illegal as it is treason. It invites a logical conundrum in that, if a majority of people do not support the Law, how will you enforce that Law? Civil war ensures in every instance I can think of (I’m no historian). Tibet, Somalia, USA… At what point are you preserving the Union rather than imposing it?

      • John L. Nelson said:

        Second sentence ans: One citizen at a time is how it’s usually done. Third sentence: Civil war ensures(?) (ensues?). Fourth sentence ans: If more than half oppose the Law(?) there is disunion.

  7. Jane said:

    Agree. The fillibuster was a legitimate tool to bring public attention to the creeping lack of due process for citizens. I don’t have to be a Rand Paul supporter to appreciate his non-partisan fillibuster.

  8. LiberTarHeel said:

    If secession is “illegal”, cite the USC. The issue may be settled, but not _against_ secession. Allow me a brief quotation: “When in the Course of human Events, …” Perhaps you recognize it? If secession is “illegal”, then God Save the Queen!

    • Bill O'Keefe said:

      Something doesn’t have to have a United States Code to be illegal. The Supreme Court ruled in Texas versus White that secession is not lawful.

      • LiberTarHeel said:

        A Reconstruction (1869) SC ruling in favor of Union? Shocking! That’s every bit as valid a buttress as US v Miller in 1939. If it’s true that you don’t need it codified to make it illegal, then on what is legality based? And, as I subtly allude above, an SC ruling may very well not be constitutional in the long view.

  9. sqeptiq said:

    Fine article! I think we’ve arrived at a time when people on all sides can begin working together on promoting civil liberties and curbing militarism. The GOP has lost its former advantage on these issues and would do well to adopt some positions from the Pauls. The neocon heavy approach sure didn’t bring McCain or Romney victory over neocon lite Obama.

    For sure it’ll take time though. Democrats long ago gave up their old antimilitarism and scruples on civil liberties as political losers. As the NSFWCorp article notes, Reagan beat Carter in 1980 promising to beef up the CIA and military, and New Right candidates of a similar kidney routed a slew of principled liberal Democrats from the Senate that year, including Frank Church (whom the article mentions), George McGovern, Burch Bayh, John Culver, Gaylord Nelson, and Warren Magnuson. And 1988 was the last election when a Democratic presidential candidate embraced ACLU, and we know where that got Dukakis. Adopting a more hardass approach on crime and civil liberties was a hallmark of the changes Bill Clinton made in the Democratic Party. Bad lessons learned take a while to unlearn.

    It’s encouraging though to see Rand Paul draw more support from rank-and-file conservatives and libertarians on the issue of domestic targeted assassinations than McCain and Graham. The key, as you rightly suggest, is to make this discussion solely about doing something good for the country, not trying to score political points, which leads people in the other party who might otherwise have cooperated, to circle the wagons.

    • Lawful Plunder said:

      The public has definitely tired of war/occupation/nation-building, but that’s not the same as militarism. The public still broadly supports the drone program. And the response that Ron Paul got during the debates when he talked about FP suggests the rank and file GOP voter still rejects anti-interventionism.

  10. MNDuck1990 said:

    Our problem as a country comes down to selfishness. “If it doesn’t affect me in a tangible way, then it doesn’t matter.” People only started whining about the Patriot act after they were felt up at the airport by some ugly dude or dudette. Very few people at the time, or at least not enough to make a difference, put up their collective hands and said, “STOP!”

    This is a perfect description of the frog in the pan of water. Some people either can’t see it or don’t want to see it and eventually we will all pay the price.

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  12. John L. Nelson said:

    In regard to the use of drones to kill “American citizens” who are waging war against the U.S. from a foreign land, I would argue that he has forfeited his citizenship by his treason. He could be tried “in absentia”, and if convicted on evidence be sentenced to death. If he wishes to contest the sentence let him return to this country and defend himself against the charge. Or he could be killed as an enemy combatant without considering his citizenship. If he cannot be apprehended should he be allowed to continue waging war against us unchecked?
    Under no circumstances should drones be employed against American citizens whether for surveillance or for any other purpose.

    • John L. Nelson said:

      I omitted the phrase “in this country” directly following “citizens. Please insert.

    • Tom H. said:

      John,

      For me, there is a huge difference between a U.S. citizen being killed on the battlefield while fighting alongside our enemies and the U.S. Government ordering the assassination of a U.S. citizen through the use of drones.

      Granted, the war on terrorism is an unconventional war and so, our thinking about war and combat have had to change drastically….

      But, the idea that U.S. Federal Government can order the assassination of of its own citizens should give pause to everyone, Left and Right.

      • John L. Nelson said:

        For me there is a huge difference between an individual exercising his rights as an American citizen and one who has abandoned his loyalty to this nation, joining with its enemies to destroy us. If any individual wages war against this nation he is a legitimate target regardless of his citizenship. Since the drone attacks were not limited to American citizens/traitors the issue of citizenship is moot.
        In war, the more significant and effective an enemy is the more desirable it is to eliminate him. It is somewhat ironic that the use of drones abroad is criticized for both specificity and the lack of it. When a drone attack kills individuals who were not targeted their use is condemned even if it is likely that those slain were enemy combatants; If a drone targets and kills one man, an enemy combatant, its use is decried because the target held American citizenship.
        Also, as I attempted to assert previously, I am completely opposed to the use of drones against American citizens in this country for any purpose!

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