Civil Liberties

Dana Perino says, “We did not have a terrorist attack on our country during President Bush’s term." Sean Hannity ignores it. Terrorism is a strategy used by a militarily weak group against a militarily strong one, to create fear, dread, and uncertainty among the general population toward some political or ideological end, such as ending military actions by the strong group against the weak. It’s not clear to me that Major Hasan’s attack at Fort Hood meets the criteria of a terrorist attack, or even a religiously motivated one, though that’s somewhat more plausible. His action did share the element of being an attack by the weak against the strong, but he also appears to have had mental issues and an ongoing battle with the military over his desire to get out and not be sent to Afghanistan. There were clear warning signs that were missed or ignored, but it doesn’t appear that he was part of a broader plot. The Fort Hood shootings were a tragedy, and possibly one that could have been avoided. But it certainly isn’t an event that provides justification for torture, warrantless wiretapping, the revocation of habeas corpus, and the expansion of “homeland security” to the detriment of our civil liberties. Perino and Hannity want to argue that the Obama administration has made us less safe on the basis of this incident, which makes about as much sense as blaming the Bush administration for the Virginia Tech shootings. UPDATE (November 27, 2009): As a couple people have correctly noted, I should also have mentioned the post-9/11 anthrax attacks as another terrorist act Perino forgot about. Richard Reid, the shoe bomber, was another. UPDATE: Hume’s Ghost notes that Perino has said via Twitter that she meant “since 9/11," and correctly points out how absurd it is to discount 9/11 for Bush (as well as these other subsequent events she’s ignored), while blaming Obama for Hasan’s shooting: “…while there were warning signs about Hasan’s fitness for duty that could have been noticed by those around him, this is hardly something that would have been on the President’s radar. No one was briefing President Obama that Major Hasan was determined to strike a military base; however, President Bush was briefed that Bin Laden was determined to strike in the United States prior to the 9/11 attacks.” ...

“It’s important for people to understand that in a democracy, there will be a full investigation. In other words, we want to know the truth. In our country, when there’s an allegation of abuse … there will be a full investigation, and justice will be delivered. … It’s very important for people and your listeners to understand that in our country, when an issue is brought to our attention on this magnitude, we act. And we act in a way in which leaders are willing to discuss it with the media. … In other words, people want to know the truth. That stands in contrast to dictatorships. A dictator wouldn’t be answering questions about this. A dictator wouldn’t be saying that the system will be investigated and the world will see the results of the investigation." And on the treatment of war crimes: “War crimes will be prosecuted, war criminals will be punished and it will be no defense to say, ‘I was just following orders." The former quote is from the video below, the latter quote is from this March 2003 CNN transcript. (First quote via Dispatches from the Culture Wars, second quote via The Agitator.) And, for your edification, please read Scott Horton’s article, “Busting the Torture Myths." ...

June 4 will be the 20th anniversary of the Tiananmen Square massacre. March 10 is the 50th anniversary of the Tibetan uprising that led to the Dalai Lama’s exile. July 22 is the 10th anniversary of the banning of the Falun Gong cult in China. And October 1 is the celebration of 60 years of Communist rule in China. Chinese leaders worry that the first three anniversaries may cause issues for the last, and they are right to worry. This looks like it will be a year for dissidents in China to come forward, and it has already begun with an online petition issued in December called Charter 08 at the 60th anniversary of the UN Universal Declaration of Human Rights. Charter 08 (in English here) was named after Charter 77, a human rights manifesto issued by Czechoslovakian dissidents in 1977. Charter 08, which has been signed by more than two thousand Chinese citizens, calls for recognition of “basic universal values”: ...

For a second time, a U.S. appeals court has found unconstitutional the provision of the USA PATRIOT Act which forbids recipients of National Security Letters from disclosing that they have received them. After the first time around, Congress amended the law to introduce some minimal judicial review, but maintained the burden of proof on the recipient if the government claimed there were national security reasons for the NSL to remain secret. The courts have ruled that this burden needs to fall on the government. If this continues to stand, then perhaps the rsync.net warrant canary will become superfluous.

Kat and I attended Alan Korwin’s Bill of Rights celebration, celebrating the 217th anniversary of the Bill of Rights, which was held this evening at the Wrigley Mansion. There were several hundred people in attendance, mostly civil libertarians of both liberal and libertarian varieties, including people from the Institute for Justice and the ACLU. We were asked in the invitation to think about which Amendment is our favorite–I would probably rank the 1st and 4th at the top of my list, of which the 1st is much healthier than the 4th. I’d also put the 8th and 5th high in importance, both of which have taken some recent hits but are showing signs of recovery. And of course the 6th, and the under-utilized 9th… ah, heck, they’re all important. The crowd seemed dominated by 2nd Amendment fans, not surprising since Alan Korwin is the author and publisher of numerous books on U.S. gun laws. The reading of the Bill of Rights and its preamble was excellent, but I was disappointed that the event included a Patrick Henry impersonator played by Lance Hurley of Founding Fathers Ministries. Hurley is a Christian who endorses David Barton’s works of pseudohistory on his website (for which the antidote is Chris Rodda’s Liars for Jesus), and at the event argued in character, with quotations from Henry, that the 2nd Amendment came from the teachings of Jesus Christ, that the American revolution was fought on Christian principles, and the Constitutional Convention succeeded because of Ben Franklin’s prayer. He also stated, when there were discussions of the health of the first ten amendments to the Constitution, that freedom of religion is in serious danger, because no one can mention God in schools but the Koran can be discussed. This is simply untrue–God and the Bible can be discussed by students, but such discussions cannot constitutionally be imposed by state agents such as teachers and administrators in a way that constitutes an establishment of religion. The Bible can be legally taught as the combination of myth, history, poetry, literature, and religious doctrine that it is, but Christianity cannot be endorsed as true by state agents. The same rules apply to the Koran. Hurley seems not to realize that Madison’s version of the First Amendment won out, not Henry’s. Some Christians–and it appears that Hurley may be one of them–have a view that their freedom of religion is infringed if they are prevented from legally imposing their religion on others through acts of state agents. I’ll find it amazing that Christians consider themselves to be a poor, persecuted minority prohibited from expressing their religious views when they are, in fact, regularly engaging in establishment clause violations, and Congressmen are signing on to bills like last year’s House Resolution 847. Hurley does public speaking as both Patrick Henry and George Washington–I wonder if his George Washington is historically accurate with respect to Washington’s religious views. He’s also an advocate of conspiracy theories (Illuminati, Trilateral Commission, Bilderbergers, etc.) and an advocate of the National Day of Prayer. Further fringe elements were represented at the event by Ernie Hancock of the Ron Paul Revolution, who distributed multiple pieces of literature promoting his Freedom’s Phoenix website, billed as “uncovering the secrets & exposing the lies.” That site also promotes conspiracy theory, including “9/11 truth” conspiracy claims. In the discussions, several people brought up Phoenix’s recently installed freeway traffic speed cameras as evidence of the sickliness of the Bill of Rights, though no one really offered an explanation of how the Bill of Rights is violated by them. And the objection seemed to only be to the cameras, not to speed limit laws. I’m not a fan of speed cameras, and I agree that they are more of a revenue generation method than a safety measure, but I don’t see an obvious case that they violate the Bill of Rights. That’s not to say that the event was entirely dominated by the lunatic fringe–one woman in the audience commented that she was particularly concerned about the 4th Amendment, because she is now regularly stopped at a “border checkpoint” while driving between destinations well inside the U.S. border, because of the 100-mile “Constitution-free zone” that the courts have created around the perimeter of the U.S. And Jennifer Perkins of the Institute for Justice pointed out that even though the U.S. Supreme Court blew a gigantic hole in the 5th Amendment with the Kelo case, nearly all of the states have passed legislation adding further protections against eminent domain abuse (and Arizona’s are the strongest). There was one critical mention of the USA PATRIOT Act (by the Patrick Henry impersonator, to well-deserved applause), but no mention of Guantanamo Bay, the Military Commissions Act, or torture that I noticed. I think concern over traffic cameras is at least a bit lower on the priority list than any of these items. A point in favor of the Patrick Henry arguments is that he correctly identified the risk of expanding executive power and judicial decisions that disregarded basic rights (the fact that the Bill of Rights, as well as the Constitution itself, has many passages that have effectively been written out of it, is testament to the accuracy of that prediction). The First Amendment’s guarantee of free speech, at least, is alive and relatively well. UPDATE (December 16, 2008): Ed Brayton at Dispatches from the Culture Wars points out that Ron Paul introduced the American Freedom Agenda Act which would: Repeal the “Military Commissions Act of 2006” and thereby restore the ancient right of habeas corpus and end legally sanctioned torture by U.S. government agents Restore the “Foreign Intelligence Surveillance Act” (FISA) and thereby outlaw warrantless spying on American citizens by the President of the United States ...

Lest there was any remaining doubt that the 1954 insertion of “under God” into the pledge of allegiance was explicitly religious, the news has covered the death of the Rev. George M. Docherty, a Presbyterian minister from Scotland, noting that it was his sermon heard by President Dwight D. Eisenhower that prompted the change: “I didn’t know that the Pledge of Allegiance was, and he recited it, ‘one nation, indivisible, with liberty and justice for all,’” he recalled in an interview with The Associated Press in 2004. “I came from Scotland, where we said ‘God save our gracious queen,’ ‘God save our gracious king.’ Here was the Pledge of Allegiance, and God wasn’t in it at all."He delivered his sermon calling for “under God” to be added to the pledge first in 1952 with little effect, but delivered it again on February 7, 1954, while Eisenhower was in attendance at the New York Avenue Presbyterian Church in Washington D.C., near the White House. Eisenhower immediately let Congress know he wanted it to happen, and Rep. Charles G. Oakman (R-MI) introduced a bill the very next day to make that addition, which Eisenhower signed into law on Flag Day. Michael Newdow currently has a second lawsuit working its way through the courts to remove “under God” from the pledge on the grounds that Congress’s action was a violation of the establishment clause of the First Amendment. His first lawsuit went to the Supreme Court, where the justices declined to rule on the merits of the argument, and instead reasoned that he lacked standing to bring the suit because he was involved in a custody dispute over his daughter, who was the plaintiff because she was required to recite the pledge in school. That ruling, like Eisenhower’s signing of the original unconstitutional bill, was delivered on Flag Day (in 2004).

The FFRF’s “Imagine No Religion” billboard in Rancho Cucamonga, California, is being removed by General Outdoor Advertising after they received a request to remove it from the city. The city asserts that it requested the removal but did not demand it, and therefore did not violate the First Amendment. The contract no doubt gives General Outdoor the ability to back out of the contract and refund the money in response to controversy. FFRF says the company has agreed to refund the money. The city reports that they received about 90 complaints. Has anyone ever heard of a religious billboard in this country being removed after a government request? UPDATE (November 25, 2008): FFRF plans to sue Rancho Cucamonga for this infringement of its freedom of speech. The city’s Redevelopment Director, Linda Daniels, apparently realizes now that she has done something wrong, and has changed her story: Last Thursday, Redevelopment Director Linda Daniels said a member of her staff had informed the sign company about the 90 complaints the city received regarding the billboard. ...

Day one steps are closing Guantanamo Bay, ceasing and prohibiting torture, ceasing and prohibiting extraordinary rendition; steps for the first 100 days include ending warrantless spying, watch lists, the Ashcroft doctrine on FOIA requests, monitoring of activists, the Real ID Act, the abortion gag rule, the death penalty, and faith-based initiatives. At least one of Obama’s transition teams is, at the very least, reviewing Bush’s executive orders for constitutionality, which covers some elements of the above. Most, however, have been implemented by act of Congress, which will require Congressional action to repeal. ...

From the Iowa State Daily: Audience members escorted out of Sen. John McCain’s, R-Ariz., campaign event in Cedar Falls questioned why they were asked to leave Sunday’s rally even though they were not protesting. David Zarifis, director of public safety for the University of Northern Iowa, said McCain staffers requested UNI police assist in escorting out “about four or five” people from the rally prior to McCain’s speech. Zarifis said while the people who were taken out weren’t protesting or causing problems, McCain’s staff were worried they would during the speech. “Apparently, they had been identified by those staffers as potential protesters within the event,” Zarifis said. … Lara Elborno, a student at the University of Iowa, said she was approached by a police officer and a McCain staffer and was told she had to leave or she would be arrested for trespassing. … Elborno said even McCain supporters were among those being asked to leave. “I saw a couple that had been escorted out and they were confused as well, and the girl was crying, so I said ‘Why are you crying? and she said ‘I already voted for McCain, I’m a Republican, and they said we had to leave because we didn’t look right,’” Elborno said. “They were handpicking these people and they had nothing to go off of, besides the way the people looked.”

Via the Reason blog: The 1976 U.S. Supreme Court case of U.S. v. Martinez-Fuerte established an exception to the Fourth Amendment, allowing the federal government to establish roadblock checkpoints within 100 miles of U.S. borders to stop people and search for illegal immigrants and smuggling. The ACLU notes that 190 million people live within 100 miles of U.S. borders, providing this helpful map. (Although Lake Michigan is entirely within U.S. boundaries, by treaty Canada is allowed full navigation rights to the lake–so it’s not clear if that 100-mile boundary would actually be as in the ACLU’s map around Lake Michigan.) There are currently 33 checkpoints in operation within the boundary area. Here’s some video footage of one of them in Arizona: (Via Checkpoint USA, which has numerous videos of interactions at one of these temporary checkpoints.) ...