Includes commentary from the Washington Post
year, the State Department issues reports on individual rights in other
countries, monitoring the passage of restrictive laws and regulations
around the world.
Iran, for example, has been criticized for denying fair public trials
and limiting privacy, while Russia has been taken to task for
undermining due process.
Other countries have been condemned for the use of secret evidence and torture.
Even as we pass judgment on countries we consider unfree, Americans
remain confident that any definition of a free nation must include their
own - the land of free.
Yet, the laws and practices of the land should shake that confidence.
In the decade since Sept. 11, 2001, this country has comprehensively
reduced civil liberties in the name of an expanded security state.
The most recent example of this was the National Defense Authorization
Act, signed Dec. 31, which allows for the indefinite detention of
citizens. At what point does the reduction of individual rights in our
country change how we define ourselves?
While each new national security power Washington has embraced was
controversial when enacted, they are often discussed in isolation.
But they don’t operate in isolation. They form a mosaic of powers under
which our country could be considered, at least in part, authoritarian.
Americans often proclaim our nation as a symbol of freedom to the world
while dismissing (other) nations as categorically unfree. Yet,
objectively, we may be only half right. Those countries do lack basic
individual rights such as due process, placing them outside any
reasonable definition of "free," but the United States now has much more
in common with such regimes than anyone may like to admit.
These countries also have constitutions that purport to guarantee
freedoms and rights. But their governments have broad discretion in
denying those rights and few real avenues for challenges by citizens -
precisely the problem with the new laws in this country.
The list of powers acquired by the U.S. government since 9/11 puts us in rather troubling company.
Guantanamo Bay - An indelible blot of shame and inhumanity on the USA.
- Assassination of U.S. Citizens - or Anyone, Anywhere
President Obama has claimed, as President George W. Bush did before him,
the right to order the killing of any citizen considered a terrorist or
an abettor of terrorism.
Last year, he approved the killing of U.S. citizen Anwar al-Awlaqi and another citizen under this claimed inherent authority.
Last month, administration officials affirmed that power, stating that
the president can order the assassination of any citizen whom he
considers allied with terrorists.
The only other country to have institutionalised this process is Israel.
Under the law signed last month, terrorism suspects are to be held by
the military; the president also has the authority to indefinitely
detain citizens accused of terrorism.
While the administration claims that this provision only codified
existing law, experts widely contest this view, and the administration
has opposed efforts to challenge such authority in federal courts. The
government continues to claim the right to strip citizens of legal
protections based on its sole discretion.
The president now decides whether a person will receive a trial in the
federal courts or in a military tribunal, a system that has been
ridiculed around the world for lacking basic due process protections.
Bush claimed this authority in 2001, and Obama has continued the
The president may now order warrantless surveillance, including a new
capability to force companies and organizations to turn over information
on citizens’ finances, communications and associations. Bush acquired
this sweeping power under the Patriot Act in 2001, and in 2011, Obama
extended the power, including searches of everything from business
documents to library records.
The government can use "national security letters" to demand, without
probable cause, that organizations turn over information on citizens —
and order them not to reveal the disclosure to the affected party.
It's OK if I do it.
The government now routinely uses secret evidence to detain individuals
and employs secret evidence in federal and military courts.
It also forces the dismissal of cases against the United States by
simply filing declarations that the cases would make the government
reveal classified information that would harm national security - a
claim made in a variety of privacy lawsuits and largely accepted by
federal judges without question.
Even legal opinions, cited as the basis for the government’s actions
under the Bush and Obama administrations, have been classified.
This allows the government to claim secret legal arguments to support
secret proceedings using secret evidence. In addition, some cases never
make it to court at all. The federal courts routinely deny
constitutional challenges to policies and programs under a narrow
definition of standing to bring a case.
The world clamored for prosecutions of those responsible for
waterboarding terrorism suspects during the Bush administration, but the
Obama administration said in 2009 that it would not allow CIA employees
to be investigated or prosecuted for such actions. This gutted not just
treaty obligations but the Nuremberg principles of international law.
When courts in countries such as Spain moved to investigate Bush
officials for war crimes, the Obama administration reportedly
(pressured) foreign officials not to allow such cases to proceed,
despite the fact that the United States has long claimed the same
authority with regard to alleged war criminals in other countries.
The government has increased its use of the secret Foreign Intelligence
Surveillance Court, which has expanded its secret warrants to include
individuals deemed to be aiding or abetting hostile foreign governments
or organizations. In 2011, Obama renewed these powers, including
allowing secret searches of individuals who are not part of an
identifiable terrorist group. The administration has asserted the right
to ignore congressional limits on such surveillance.
- Immunity from judicial review
Like the Bush administration, the Obama administration has successfully
pushed for immunity for companies that assist in warrantless
surveillance of citizens, blocking the ability of citizens to challenge
the violation of privacy.
Not all Americans like losing their basic rights and freedoms.
- Continual monitoring of citizens
The Obama administration has successfully defended its claim that it can
use GPS devices to monitor every move of targeted citizens without
securing any court order or review.
The government now has the ability to transfer both citizens and
noncitizens to another country under a system known as extraordinary
This has been denounced as using other countries, such as Syria, Saudi Arabia, Egypt and Pakistan, to torture suspects.
The Obama administration says it is not continuing the abuses of this
practice under Bush, but it insists on the unfettered right to order
such transfers - including the possible transfer of U.S. citizens.
These new laws have come with an infusion of money into an expanded
security system on the state and federal levels, including more public
surveillance cameras, tens of thousands of security personnel and a
massive expansion of a terrorist-chasing bureaucracy.
Some politicians shrug and say these increased powers are merely a
response to the times we live in. Thus, Sen. Lindsey Graham (R-S.C.)
could declare in an interview last spring without objection that "free
speech is a great idea, but we’re in a war." Of course, terrorism will
never "surrender" and end this particular "war."
Other politicians rationalize that, while such powers may exist, it
really comes down to how they are used. This is a common response by
liberals who cannot bring themselves to denounce Obama as they did Bush.
Sen. Carl Levin (D-Mich.), for instance, has insisted that Congress is
not making any decision on indefinite detention: "That is a decision
which we leave where it belongs - in the executive branch."
And in a signing statement with the defense authorization bill, Obama
said he does not intend to use the latest power to indefinitely imprison
citizens. Yet, he still accepted the power as a sort of regretful
An authoritarian nation is defined not just by the use of authoritarian powers, but by the ability to use them.
If a president can take away your freedom or your life on his own
authority, all rights become little more than a discretionary grant
subject to executive will.
And these are the lies told about the "War on Terror" - the war that will never end because there is no enemy conquer.
The framers lived under autocratic rule and understood this danger better than we do.
James Madison famously warned that we needed a system that did not
depend on the good intentions or motivations of our rulers: "If men were
angels, no government would be necessary."
Benjamin Franklin was more direct. In 1787, a Mrs. Powel confronted
Franklin after the signing of the Constitution and asked, "Well, Doctor,
what have we got - a republic or a monarchy?" His response was a bit
chilling: "A republic, Madam, if you can keep it."
Since 9/11, we have created the very government the framers feared: a
government with sweeping and largely unchecked powers resting on the
hope that they will be used wisely.
The indefinite-detention provision in the defense authorization bill
seemed to many civil libertarians like a betrayal by Obama. While the
president had promised to veto the law over that provision, Levin, a
sponsor of the bill, disclosed on the Senate floor that it was in fact
the White House that approved the removal of any exception for citizens
from indefinite detention.
Dishonesty from politicians is nothing new for Americans. The real
question is whether we are lying to ourselves when we call this country
the land of the free.
Jonathan Turley is the Shapiro professor of public interest law at George Washington University.
Those who think the US values human rights should read the following:
Besides Guantanamo, Afghanistan and Iraq, HRC said the CIA runs scores
of offshore secret prisons in over 66 countries worldwide for dissidents
and alleged terrorists — in Egypt, Algeria, Jordan, Morocco, Syria,
Libya, Tunisia, India, Pakistan, Russia, Uzbekistan, Sudan, Zimbabwe,
Ethopia, Djibouti, Kenya, Poland, Romania, Bosnia, Kosovo, Thailand,
Diego Garcia, and elsewhere.
Post-9/11, "the United States embarked on a process of reducing and
removing various human rights and other protection mechanisms" through
numerous laws and administrative acts including:
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- The September 18, 2001 joint House-Senate Authorization for Use of
Military Force (AUMF) for "the use of United States Armed Forces against
those responsible for the recent attacks launched against the United
- The October 2001 USA Patriot Act (just renewed) that shredded
civil liberty protections, including due process, freedom of
association, and the right to be free from unreasonable searches and
- The October 2002 House-Senate “Joint Resolution to Authorize
the Use of the United States Armed Forces Against Iraq,” even though the
country (and Afghanistan) posed no threat to America, had no ability or
intention to strike, or did so on 9/11 or any other time;
- The November 2001 Military Order Number 1 authorizing the
president to capture, kidnap or otherwise arrest non-citizens (and later
citizens) anywhere in the world for any reason and hold them
indefinitely without charge, evidence, or due process and judicial
fairness protections in a civil court;
- Numerous presidential Executive Orders, memorandums, findings,
National and Homeland Security Presidential Directives, and other
documents authorizing the abduction, detention, torture, and killing of
- National Presidential Directive 51 granting the president
dictatorial power to declare a national emergency, followed by martial
law without congressional approval;
- The February 2002, a presidential memorandum declaring Geneva’s
Common Article 3 (prohibiting torture and other lawless acts) and Third
Geneva, pertaining to prisoners of war, null and void for "al-Qaeda or
- The November 2002 Homeland Security Act creating a national Gestapo;
- The 2005 Detainee Treatment Act denying detainees habeas rights
and authorizing the use of cruel, abusive, inhumane or degrading
treatment in the interests of national security;
- The 2006 Military Commissions Act, known as "the torture
authorization act," granted the executive sweeping unconstitutional
powers to detain, interrogate and prosecute alleged terror suspects and
collaborators (including US citizens), imprison them indefinitely in
military prisons without proof of guilt, and deny them habeas and
judicial fairness protections; and
- Various other actions subverting the letter and spirit of
international and US laws to pursue a global war on terror, including
worldwide detention centers, claiming human rights laws there don’t
"One of the consequences of this policy was that many detainees were
kept secretly and without access to the protection accorded to those in
custody" under international and US laws.