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The Ron Paul Platform: Civil Liberties

Part of a continuing series of excerpts from "The Revolution: A Manifesto."

"Freedom means not only that our economic activity ought to be free and voluntary, but that the government should stay out of our personal affairs as well. In fact, freedom means that we understand liberty as an indivisible hole. Economic freedom and personal liberty are not divisible. How do you plan to exercise your right to free speech if you're not allowed the economic freedom to acquire the supplies necessary to disseminate your views? Likewise, how can we expect to enjoy privacy rights if our property rights are insecure?

Government should respect our right to privacy, rather than invading it on phony pretenses. It should observe traditional legal norms when dealing with criminal suspects. And instead of trying to correct our bad habits at the point of a gun, it should defer to families and the normal channels of civil society to instruct people in moral conduct.

The war on terror has awakened more Americans than ever to the way the government exploits fear, and even its own failures, to justify eroding our civil liberties. Examples are all too plentiful. For instance, only well after the fact did Americans discover that their government had been defying the law by carrying out warrantless surveillance of Americans' international telephone conversations. After sitting on the story for a year, the New York Times went public with the program in December 2005.

That in itself should give us pause: why, in a free society with a supposedly independent media, did arguably the most influential newspaper in the United States keep Americans in the dark about a program like this?

The answer we were given involved unspecified national security concerns that the Times supposedly did not want to jeopardize. But that explanation does not hold water at all. We may safely assume that terrorists are clever enough to realize that our government is listening in on their conversations, even without the Times telling them so. The very name of the Foreign Intelligence Surveillance Act (FISA) of 1978 is a dead giveaway.

As far as we have been told, the only way that this program, administered by the U.S. National Security Agency (NSA), diverged from previous intelligence efforts is that this one operated without FISA warrants -- warrants issued in secret by special courts, in conformity with the 1978 Act. Awareness of this aspect of the program would have done nothing to aid terrorists. FISA warrants are issued in secret anyway, so neither under FISA nor under the NSA program would a terrorist know for sure that the government was eavesdropping on his conversations.

It looks very much like the old story: the government says "national security" and the natural and normal skepticism that our Founding Fathers taught us to have toward the government is promptly abandoned. The simple and straightforward reason the executive branch wanted the program kept secret, its consistent obfuscation notwithstanding, seems to be that it violated the law.

The reasons we were given for why the program was necessary were at least as unconvincing as the Times's defense of concealing it. On the other hand, we were told that the only targets of the program were people with links to terrorist organizations like al-Qaeda. At the same time, we were told that the sheer number of targets made FISA warrant applications impracticable.

I believe that constitutional lawyer Glenn Greenwald has identified a fatal contradiction in these claims. If it is true that the executive branch knew the locations of so many people with al Qaeda links, why were they seeking to merely eavesdrop on their conversations? Why were they not arresting them instead?

This, after all, is an administration that has detained people indefinitely, without charges, on the basis of sometimes shaky evidence of an al Qaeda connection. This time, we are supposed to believe the administration had knowledge of countless al Qaeda figures and decided to let them remain free? Not plausible, and that is why it seems likely that the targets of this surveillance included many Americans who had no ties to al Qaeda or terrorism at all.

Then we were told that the program wasn't lawless after all -- the president had been given this authority by Congress in the 2001 Authorization to Use Military Force (AUMF) that authorized military action in Afghanistan. It seems dubious that anyone in Congress at the time interpreted the AUMF as giving the president the power to engage in warrantless wiretapping in contravention of established law. According to Bruce Fein, deputy attorney general under President Reagan, that interpretation of AUMF would mean that it was also intended to authorize the president to "break and enter homes, open mail, torture detainees, or even open internment camps for American citizens in violation of federal statutes in order to gather foreign intelligence." It is not plausible to suggest that Congress would have intended to authorize such extreme measures by silence or remote implication. If this interpretation of AUMF were correct, moreover, parts of the Patriot Act would have been unnecessary. Finally, given that FISA, the existing law, deals explicitly and specifically with intelligence gathering, FISA would automatically trump AUMF as a matter of legal principle, even if the administration's interpretation were correct.

The administration itself didn't seem to take this argument seriously. When asked why, if the administration considered FISA inadequate to its purposes, it had not sought to amend it, Attorney General Alberto Gonzales frankly testified that they didn't think they would be able to win congressional approval for amendments to FISA. So they proceeded with the program anyway. That's problematic enough, but it also contradicts administration claims that AUMF gave them all the authority they needed. Why did they consider amending FISA in order to give themselves a power they supposedly already had?

Then, in yet another twist, we were told that NSA was carrying out what is known as "data mining," which amounts to combing through the communications of all Americans, and FISA could not accommodate this. Well, no, I should think not.

Finally, there is the argument that the president needs to be able to act with dispatch in order to pursue the targets he seeks. This argument also fails to persuade -- existing law was extremely accommodating on this score, allowing for warrantless surveillance for days at a time in emergency situations.

What was the real reason for the program, then? Who was targeted and why? No answers to these questions have been forthcoming. Bland assurances that our leaders are trustworthy and good, and would never abuse powers they have secretly exercised in defiance of the law, can hardly be taken seriously by those who believe in a free society. Remember Jefferson's cautionary words about confidence in men: we should be on our guard against our government officials, binding them down from mischief by the chains of the Constitution. Government surveillance of individuals has been abused in the past, and it has targeted political opponents and the politically unpopular. That's why the safeguards that were flaunted here were established in the first place. Frank Church, who served as a U.S. senator from Idaho for a quarter of a century and who investigated and led the charge for reform of the surveillance powers of American intelligence agencies, was observing as early as 1975 that the NSA, if it fell into the wrong hands, could enable the government "to impose a total tyranny, and there would be no way to fight back."

This particular program was known as the Terrorist Surveillance Program, and it received a great deal of attention after its existence became public. What was frequently overlooked amid the ensuing controversy was that the executive branch apparently carried out even more invasive activities, but we never got any answers about those.

When asked whether they had engaged in domestic wiretapping or carried out warrantless searches of people's homes or correspondence, officials have responded with carefully worded assurances that these things were not done under the program then under discussion -- i.e., the Terrorist Surveillance Program. But were these things being done pursuant to some other program? No answer.

When then Attorney General Alberto Gonzales testified before the Senate Judiciary Committee in February 2006, for example, he dealt with questions about whether the administration had engaged in warrantless wiretapping of purely domestic calls. "Not under the program in which I am testifying," came the reply. Such activity, the attorney general said, was "beyond the bound of the program which I'm testifying about today."

We do know that for some period of time between September 11, 2001, and March 2004, the executive branch was engaged in a kind of surveillance that was so at odds with American law that then Attorney General John Ashcroft, FBI Director Robert Mueller, and Deputy Attorney General James Comey threatened to resign if it continued. What exactly was the executive branch up to that caused so much dissent even among its own loyalists? Who was victimized during this time? Why are we not hearing the answers -- or even the questions?

The misnamed Patriot Act, presented to the public as an antiterrorism measure, actually focuses on American citizens rather than foreign terrorists. The definition of "terrorism" for federal criminal purposes is greatly expanded, such that legitimate protest against the government could someday place an American under federal surveillance. Similarly, your Internet provider can be forced to hand over user information to law enforcement without a warrant or subpoena.

The biggest problem with these new law enforcement powers is that they bear little relationship to fighting terrorism. Surveillance powers are greatly expanded, and checks and balances on government are greatly reduced. "Sneak and peek" and blanket searches are becoming more frequent every day. Most of the provisions have been sought by domestic law enforcement agencies for years, not to fight terrorism but rather to increase their police power over the American people.

The federal government has not shown us that it failed to detect or prevent the September 11 attacks because it lacked the powers over our lives that it was granted under the Patriot Act.

We now know that plenty of red flags that should have alerted officials to the hijackers plot were ignored. That was a matter of government ineptness, not a lack of surveillance power. Our officials had the evidence. they simply failed to act on it. And they then turned around and exploited their own failure as an excuse to crack down on the American people, demanding new powers that would have done nothing to prevent 9/11. Only government could get away with such a transparent sham.

The Patriot Act violates the Constitution by allowing searches and seizures of American citizens and their property without a warrant issued by an independent court upon a finding of probable cause. Foreign Intelligence Surveillance Courts, whose standards do not meet the constitutional requirements of the Fourth Amendment, may issue warrants for individual records, including medical and library records. It can do so secretly, and the person who turns over the records is muzzled and cannot ever speak of the search. The attorney general is given the power, with no judicial oversight, to write "national security letters" ordering holders of any of your personal records to hand them over for the government to examine -- a power that has already been abused. You would have no way of knowing that this had been done.

Requiring a showing of probable cause before a warrant may be issued would in no way hamper terrorist investigations. For one thing, federal authorities still have plenty of tools available to investigate and monitor the activities of noncitizens suspected of terrorism. Second, restoring Fourth Amendment protections would not interfere with those provisions of the Patriot Act that remove the firewalls that once prevented the government's law enforcement and intelligence agencies from sharing information.

The probable cause requirements will likewise not delay a terrorist investigation. Preparations can be made for the issuance of a warrant in the event of an emergency, and allowances can be made for cases in which law enforcement does not have time to obtain a warrant. In fact, a requirement that law enforcement demonstrate probable cause may help law enforcement officials focus their efforts on true threats, thereby avoiding the problem of information overload that is handicapping the government's efforts to identify sources of terrorist financing.

History demonstrates that the powers we give the federal government today will remain in place indefinitely. How sure are we that future presidents won't abuse those powers? Politically motivated IRS audits and FBI investigations have been used by past administrations to destroy political enemies. Past abuses of executive surveillance are the reason FISA was passed in the first place.

Even some oof the most ardent supporters of the current wave of federal privacy violations and assaults on civil liberties once held -- when Bill Clinton was calling for them, at least -- that these powers were too dangerous to entrust to government. John Ashcroft, attorney general for several years during the Bush administration and a strong supporter of the Patriot Act, was not always so cavalier about civil liberties. While a U.S. senator during the Clinton years, Ashcroft warned about proposed invasions of privacy:

"The Clinton administration would like the federal government to have the capability to read any international or domestic computer communications. The FBI wants access to decode, digest, and discuss financial transactions, personal e-mail, and the proprietary information sent abroad -- all in the name of national security.

The administration's interest in all e-mail is a wholly unhealthy precedent, especially given the administration's track record on FBI files and IRS snooping. Every medium by which people communicate can be subject to exploitation by those with illegal intentions. Nevertheless, this is no reason to hand Big Brother the keys to unlock our e-mail diaries, open our ATM records, read our medical records, or translate our international communications.... The implications here are far-reaching, with impacts that touch individual users, companies, libraries, universities, teachers, and students."

Here is an articulate statement of caution and skepticism. But a Republican administration calls for the same powers, and all these concerns go sailing out the window.

Other conservatives were just as wary of the surveillance powers requested by the Clinton administration, aware that they could easily be abused and employed for partisan or ideological purposes. For instance, "terrorism" could simply be defined as activism on behalf of a cause the current administration in Washington disapproved of. And as far back as the 1970s, the conservative scholar Robert Nisbet was cautioning:

"The day is long past when this phrase ["national security"] was restricted to what is required in actual war. As everyone knows, it has been, since World War II under FDR, a constantly widening cloak or umbrella for governmental actions of every conceivable degree of power, stealth and cunning by an ever-expanding corps of government officials.... As we now know in detail, the utilization of the FBI and other paramilitary agencies by Presidents and other high executive department officers for the purposes of eavesdropping, electronic bugging, and similarly intimate penetrations of individual privacy goes straight back to FDR, and the practice has only intensified and widened ever since. Naturally, all such royalist invasions have been justified, right down to Watergate, under the name of national security. The record is clear and detailed that national security cover-up has been a practice of each of the Presidents since FDR."

Judge Andrew Napolitano recently asked, "Why should government agents spy on us? They work for us. How about we spy on them? On cops when they arrest and interrogate people or contemplate suspending freedom; on prosecutors when they decide whom to prosecute and what evidence to use; on judges when they rationalize away our guaranteed rights; and on members of Congress whenever they meet with a lobbyist, mark up a piece of legislation, or conspire to assault our liberties or our pocketbooks."

For a patriotic American, there is nothing radical about this attitude at all. This is how the Founding Fathers thought. If our critics want to repudiate the Founding Fathers, let them go ahead and do it. If they won't be honest enough to do so, they should at least refrain from condemning those of us who still believe in the wisdom they left for posterity.

Much more is at stake here than privacy violations or unconstitutional searches, important and dangerous as those are. For example, the president has made clear, in one of his signing statements, that he retains the power to engage in torture regardless of congressional statutes to the contrary. Defense Department memoranda say the same thing.

First of all, legal issues aside, the American people and government should never abide the use of torture by our military or intelligence agencies. A decent society never accepts or justifies torture. It dehumanizes both torturer and victim, yet seldom produces reliable intelligence. Torture by rogue American troops or agents puts all Americans at risk, especially our rank-and-file soldiers stationed in dozens of dangerous places around the globe. It is not difficult to imagine American soldiers or travelers being taken hostage and tortured as some kind of sick retaliation for Abu Ghraib.

Beyond that is the threat posed by unchecked executive power. Executive branch lawyers claim that the president's commander-in-chief powers override federal laws prohibiting torture. But the argument for extraordinary wartime executive powers has been made time and again, always with bad results and the loss of our liberties. War has been used by presidents to excuse the imprisonment of American citizens of Japanese descent, to silence speech, to suspend habeas corpus, and even to control entire private industries. That's why it is precisely during times of relative crisis that we should adhere most closely to the Constitution, not abandon it. The Founders were especially concerned about the consolidation of power during war and national emergencies. War does not justify the suspension of torture laws any more than it justifies the suspension of murder laws, the suspension of due process, or the suspension of the Second Amendment.

The hallowed right of habeas corpus has also been a casualty of the war on terror. The Military Commissions Act of 2006 gives the president the power to detain people indefinitely and to deny the accused any real opportunity to answer the charges against them. It is anti-American at its core. The name of the Act can give the misleading impression that anyone targeted under it can at least bring his case before a military commission. That is not so. If the president wants to punish an accused "enemy combatant," he may bring him before such a commission. But he need not, and if he'd rather that the person remain in prison forever, he is free to adopt that course instead.

This legislation gave legal backing to the practices in which the administration had already been engaged. Ali Saleh Kahlah al-Marri, a citizen of Qatar, married with five children, was living in America legally in 2001 when he was charged with making false statements in connection with the investigation of 9/11. He was slated to be tried in July 2003. Whatever the merits of the case against him, what happened next is an astonishing departure from American principles and tradition. Before the case could go to trial, the president suddenly declared al-Marri to be an "enemy combatant," whereupon the charges against him were dismissed by the civilian court and he was sent to a military prison, indefinitely.

We need to come to our senses: it cannot be tolerable for the president to have the right to detain people indefinitely, even for life, and not even permit them to review the charges against them. The argument is not that criminals or terrorists should be let loose. Constitutionalists are merely saying that people are at least entitled to confront the charges against them.

The case of Jose Padilla is especially striking. We first heard that Padilla was planning to set off a radiological bomb (a "dirty bomb") in an American city. The government never wound up charging him with that offense, which it had wrung from him by torture. The charges it did finally bring against him were rather more vague and less interesting.

But the federal government did not bring charges against him right away. Instead, Padilla was declared an "enemy combatant," and therefore sent to prison indefinitely without any charges being brought against him. The only reason charges were finally brought against Padilla some three and a half years later is that the administration was afraid that the Supreme Court would rule against its treatment of him. By hearing his case, the administration could head off the Court by declaring that Padilla had received the trial he sought, and that his complaint were therefore moot.

During the three and a half years he was in custody, Padilla was made to endure various forms of torture. Kept in solitary confinement, Padilla was subjected to variations of sleep deprivation. Noxious fumes were introduced to his cell. His cell was made extremely cold for long periods of time. He was drugged, disoriented and threatened with all manner of gruesome fates.

It is time for us to wake up. We have allowed the president to abduct an American citizen on American soil, declare him an "enemy combatant" (a charge the accused has no power to contest, which is rendered by the president in secret and is unreviewable), detain him indefinitely, deny him legal counsel, and subject him to inhumane treatment. How can we not be concerned about such a thing?

Have we been so blinded by propaganda that we have forgotten basic American principles, and legal guarantees that extend back to our British forbears eight centuries ago? This is an outrageous offense against America and her Constitution. Claims that these powers will be exercised only against the bad guys are not worth listening to.

In April 2006, Pultizer Prize-winning Associated Press photographer Bilal Hussein was detained by the American military in Iraq, joining at least 14,000 others around the world who have been similarly detained by the U.S. government. He has not been charged with a crime, and demnands for information from the Associated Press were met with stonewalling. The AP unsuccessfully demanded his release, or at least that formal charges be filed against him.The AP was finally told that their photographer had been involved in the kidnapping of two journalists in Ramadi, but this story didn't hold water: the journalists in question said that Hussein had actually been very helpful to them after their release, when they had no car and no money. That unpersuasive story did nothing to remove the widespread suspicion that the real reason for the AP photographer's detention involved his photographs of the war zone, which were said to have displeased American officials.

What has happened to our country and its image around the world, and why are we allowing it?

In this book I have tried to make as few references to specific legislation as possible, because my preference has been to focus on ideas rather than minutiae, and I have never had much interest in assembling a policy manual. I need to make an exception here, since a piece of legislation I introduced into Congress in late 2007 concisely reflects my views on civil liberties and executive power in light of the war on terror. I am referring to the American Freedom Agenda Act of 2007.
Among other things, the legislation:

  • repeals the Military Commissions Act of 2006;
  • forbids the use of statements extracted by torture as evidence in any civilian or military tribunal;
  • subordinates the executive's surveillance activities to the requirements of the Foreign Intelligence Surveillance Act (FISA);
  • gives the House odf Representatives and the Senate the legal standing to contest in court any presidential signing statement that indicates the executive's intention to disregard any provisions of a bill; and
  • provides that nothing in the Espionage Act of 1917 prevents any journalist from publishing information received from the executive branch or Congress "unless the publication would cause direct, immediate, and irreparable harm to the national security of the United States."

Additionally, the legislation authorizes the president to establish military commissions for the prosecution of war crimes "only in places of active hostilities against the United States where an immediate trial is necessary to preserve fresh evidence or to prevent local anarchy." He is prohibited from "detaining any individual as an unlawful enemy combatant absent proof by substantial evidence that the individual has directly engaged in active hostilities against the United States, provided that no United States citizen shall be detained as an unlawful enemy combatant." Any individual detained as an enemy combatant by the United States "shall be entitled to petition for a writ of habeas corpus under section 2241 of title 28, United States Code."

The Act also says, "No officer or agent of the United States shall kidnap, imprison, or torture any person abroad based solely on the President's belief that the subject of the kidnapping, imprisonment or torture is a criminal or enemy combatant; provided that kidnapping shall be permitted if undertaken with the intent of bringing the kidnapped person for a prosecution or interrogation to gather intelligence before a tribunal that meets international standards of fairness and due process." Knowing violations of this section are to be punished as felonies.

It amazes me that this kind of legislation should even be necessary in America. These are principles that Americans should insist their presidents not only observe, but actually believe in.

Those of us who still mention the Constitution, even now, and our obligation to observe it, are sometimes answered with the curt reply, "We're at war." We are indeed fighting undeclared wars in Iraq and Afghanistan, and an open-ended war against terrorism worldwide. But if the president claims extraordinary wartime powers, and we fight undeclared wars with no beginning and no end, when if ever will those extraordinary powers lapse? Since terrorism will never be eliminated completely, should all future presidents be able to act without regard to Congress or the Constitution simply by asserting "We're at war?"

Toward the end of 2007, Senator Jeff Sessions declared, "Some people in this chamber love the Constitution more than they love the safety of this nation. We should all send President Bush a letter thanking him for protecting us." What kind of sheep must politicians take Americans for if they expect us to fall for creepy propaganda like this?

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