United States of Homeland Security

President Obama has signed into law the National Defense Authorization Act for Fiscal Year 2012. The signing comes after weeks of equivocation and obfuscation, and a widespread reporting blackout in the major media.

At issue are sections 1031 and 1032, which, in somewhat ambiguous language, seem to provide for the indefinite detention of US citizens without trial, by the military if the government so chooses, if those citizens are classified as terrorists or as terrorist sympathizers.

When it came out of the Senate, the law (then S.1867) was accompanied by Feinstein amendment #1456, which states that the law shall not be "construed to affect existing law or authorities, relating to the detention of United States citizens, lawful resident aliens of the United States or any other persons who are captured or arrested in the United States."

This amendment, however, was a political maneuver to pacify opponents, while proponents believed they already had the ability in question with respect to the detention of US citizens classified as terrorists (which enabled the detention without trial of the US citizen Jose Padilla in 2002, after being classified as an "enemy combatant").

In signing the bill into law, President Obama issued a signing statement clarifying that this current Administration "will not authorize the indefinite military detention without trial of American citizens." This, of course, says nothing about future Administrations, which can reverse signing statements and executive orders at will.

Moreover, the sections in question are blatantly unconstitutional.

Article I Section 9 of the US Constitution says, "privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it."

The Constitution doesn't specify that habeas corpus applies only to citizens of the US, and British legal custom (the American revolutionists were ethnically British) reinforces the claim that this is an "inalienable right."

The Magna Carta says, "No Freeman shall be taken or imprisoned, or be disseized of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed; nor will We not pass upon him, nor condemn him, but by lawful judgment of his Peers, or by the Law of the land." It says, "Freeman" not "subject."

By strengthening the ability of the government to choose by ad hoc action which system of justice applies to which detainees (i.e., the new military established by President George W. Bush under the Military Commissions Act of 2006; or civilian courts), this bill flies in the face of the principle of rule of law, and therefore exemplifies arbitrary government.

In 1944, free market theorist Friedrich Hayek wrote:

"while every law restricts individual freedom to some extent by altering the means which people may use in the pursuit of their aims, under the Rule of Law the government is prevented from stultifying individual efforts by ad hoc action... If the law says that such a board or authority may do what it pleases, anything that board or authority does is legal -- but its actions are certainly not subject to the Rule of Law. By giving the government unlimited powers, the most arbitrary rule can be made legal; and in this way a democracy may set up the most complete despotism imaginable....The Rule of Law thus implies limits to the scope of legislation: it restricts it to the kind of general rules known as formal law and excludes legislation either directly aimed at particular people or at enabling anybody to use the coercive power of the state for the purpose of such discrimination. It means, not that everything is regulated by law, but, on the contrary, that the coercive power of the state can be used only in cases defined in advance by the law and in such a way that it can be foreseen how it will be used."

Language like that contained in this law has no place in American jurisprudence, and President Obama, as a "constitutional scholar" ought to know better.

I guess it takes a constitutional scholar to most effectively dismantle the constitution.

The government's next step is likely to start using this law very selectively and carefully establishing precedent. Then, gradually, the scope of the law will be extended, using legal theories like those advanced by John Yoo under Bush II, or though a classified legal interpretation such as that described by Senators Mark Udall and Ron Wyden.

But Obama is the lesser of two evils, right?

Gitmo '07 for Fun and Profit

In response to Great Britain's formal request that the United States release five British residents from the Guantanamo Bay detention facility, US officials have reiterated that the United States does not want to be the world's jailor.

This is an odd position to take, if one is representing the United States in an official capacity at a time when the United States is seeing dramatic growth in prison populations.

One out of every four people in prison is in the United States. That's no minor accomplishment for a Nation that represents a mere 5% of the World's population.

The USA is #1 in incarcerations, beating out Russia and China. Even if China is under-reporting, the United States is still running in good company.

Whatever cause or purported intent one invokes to account for this phenomenon, the effect disproportionately impacts Black Americans in a variety of ways. For example, 13% of adult Black men cannot vote because of their conviction history.

The Guantanamo Bay detention facility puts a friendly Hollywood face on America's attitude towards imprisonment, but the conditions described as existing there should not seem especially shocking to American sensibilities. Prisons are an awful -- and central -- part of the American Way of Life. For some people, keeping other humans imprisoned is the way to The American Dream.

Americans tolerate a lot of things: not too many inconveniences, but a great many injustices. That prisons represent a struggle against a criminal class is clear. That prisons represent a cultural problem far more significant than street crime is not nearly as often made clear in the popular media.

Prisoners are made by laws. Laws are expressions of cultural values. There have been many generations brought up with the indoctrination of human captivity: what cultural values do Americans hold so as to make so many disrupted lives seem worthwhile, and even lucrative?

Letter to a Representative from a Disaffected Patriot

Dear Sen. X,

With all respect, I appreciate your sincere desire to serve the Nation and our fine State of residence, but I have serious doubts as to whether this can at all be accomplished through political affiliation with the Two-Party System as presently constituted.

When I wrote to you expressing my dismay at the Vice President's arguments concerning the legal classification of his Office (relative to the system articulated by the US Constitution), my concern was not for the timely reconciliation of rhetorical positions among various interested parties.

Perhaps, when I wrote you, my concerns were expressed in a simplistic manner. The content of my correspondence contained only a citation from a White House press conference (referencing the Vice President's recent claims about the legal status of his Office) and the statement "THIS IS FLAT OUT UNACCEPTABLE." The correspondence was not particularly intended to elicit a direct response, but rather to serve as a means by which I, an engaged citizen, might communicate my perceptions to one of my elected representatives in the Federal Government.

You wrote back, "our democracy is not perfect." My concern, Sir, is not whether our Democracy is perfectly implemented, but rather, whether it presently can be said to exist at all.

You wrote, "our government does successfully balance the many interests and concerns of our diverse nation in a manner that is representative and fair," but I see violence in the streets comparable to a theatre of war, increasing numbers of high school graduates sold into indentured servitude to procure funding for college, orchestrated disinformation campaigns by the Federal Government designed to keep the citizenry ignorant or perplexed, more incarcerations than any other country, state socialism for corporations and the fascist sheepherding of individuals. I hear politicians twisting language to serve their ends. I see high crimes and misdemeanors in the White House.

You wrote, "the process works because there are public servants...dedicated to the ideas of democracy." This assumes the existence of an effective means by which Democratic ideals might be implemented; I see diminishing evidence to support the validity of this assumption.

An Administration installed on contentious grounds, which of late appears to have abandoned even the facade of legitimacy, does little to mitigate my concerns. Under such circumstances, neither does a reply from an elected representative to the effect that I ought not worry because this will work itself out do much to instill confidence that our Democracy is functioning as intended.

I regret to inform you that you will not receive my votes in the future. This is due in no small part to your affiliation with the Two-Party System, as I see increasing evidence of late that this System is not operating in the service of individual US citizens. I will use all peaceful and civilized means at my disposal to persuade others of my position.

Sincerely,

XXX

Preemption and the New Kind of War

I was reading a little bit about the US Cold War nuclear planning in the 1960's, and came across these two facts, which really struck me:

1) A PREEMPTIVE nuclear war would attack 1000 targets with 3000 warheads;

and

2) A RETALIATORY nuclear strike would attack 700 targets with 1700 warheads.

These two facts struck me because the attitude that informed this war planning seemed counter-intuitive at first. If somebody hits you, and you're going to hit back, don't you want to hit them with everything you've got?

Part of the difference in the scale of attack is certainly due to war planners anticipating some portion of our capabilities being disabled in the case of a retaliatory strike. But the numbers are incredible: in a full scale preemptive strike, 3 nuclear warheads were to be delivered to each target. That's a lot of redundant destruction. Which got me thinking about the character of preemptive strikes in general.

If you're going to hit somebody first, and you don't know whether they've got a black belt in karate, or a knife, or if somebody's got their back, you drop them quick, and make sure they don't get up. Go for the knees, the throat, the eyes, the groin.

A preemptive strike means targets are hit that don't really need to be hit, because a preemptive strike has a lot of strategic redundancy.

Which got me thinking about the attitude of "our leaders," who launched a preemptive war in Iraq, as part of a larger campaign in our New Kind of War. "Our leaders," who rose to prominence during the Cold War, who built their house of cards during the Cold War, find great value in preemption. Whatever THEY're trying to get at now, it's worth an awful lot to them (look out Iran).

Right now, we're reorganizing our Federal Bureaucracies left and right for the War on Terror, spending blood and dollars hand over fist in our Central Front in the War on Terror, using National Security Letters to draft private citizens into the War on Terror. Imagine what the War on Terror costs in terms of administrative overhead alone. Screw bullets, there are bureaucrats to pay. We're going to be paying this off forever...

OUR POLITICIANS ARE UP TO SOMETHING AND WE DESERVE TO KNOW WHAT.

The War on Terror is a preemptive war. The United States has not seen terror anything like what Northern Ireland or Israel have seen. More people dead in Iraq than on 911. More people dead in car accidents every year than on 911. More people shot to death in the ghetto every year than on 911.

We don't re-organize our society because of car accidents, we build more roads and make it cheaper to drive than to use mass transit.

We don't re-organize our society because of inner city violence, we copyright rap music and sell it to white teenagers who play violent video games and manufacture more guns and sell Army surplus AK47's and crack to gangsters and keep the white kids hooked on speed for their attention defect disorder. We make thieves because the wealthy have more money than they know how to possibly spend. We make weapons for peace, use copyright to sell people their culture, we tell people our culture is a culture of peace and we put them in debt and put them to work and brainwash them into USA #1 because YOUR reality is entertainment for some monarch or oligarch.

OUR POLITICIANS ARE UP TO SOMETHING AND WE DESERVE TO KNOW WHAT.

If the War on Terror is a preemptive war, and the War in Iraq is at all part of the War on Terror, it may not really matter what happens in Iraq.

There's a war on for your mind. Propaganda is marketing. If they don't hook you in with Iraq, they've got something else in the pipe, be sure of it.

Taxation Without Representation

The reason the National Security Agency wants to read your email is because they are trying to use algorithms to detect terrorist activity. This invasion of privacy is based on the assumption that terrorists use the Internet in ways that are statistically distinct from the ways ordinary Americans use the Internet. In order to statistically detect online terrorist activity, the governmet needs a large sample of "normal" Internet use.

Although this may seem reasonable when we are confronted with an indistinct enemy, fighting on ill-defined battlefields, this really amounts to an unconstitutional indirect tax. Just as the Federal government incorporated FEMA into the Department of Homeland Security to hide the cost of creating the largest bureaucracy in the history of civilization, the government's use of private citizens' Internet service for surveillance purposes is used to hide the true cost of the War on Terror.

When the government compels private corporations to comply with national security directives, without compensating these corporations for the cost of implementing such directives, the cost is passed on to consumers.

Because the Administrative branch of government refuses to inform Congress as to the nature of these programs, these programs amount to taxation without representation.

Beyond violating the 4th Amendment right to protection against unwarranted search and seizure, this practice also violates the 5th Amendment, by effectively situating military operatives within private homes, taking private property for public use, and opening up the potential to compel private citizens to, in effect, unwittingly testify against themselves. Not only do these practices appropriate private citizens into the Federal intelligence infrastructure without compensation, but citizens are furthermore charged for this.

Our current Administration has a constitutional duty to either halt these programs, or to fully inform Congress as to their nature. In lieu of such disclosures, we as citizens have a duty to remove these criminals from office.

Diplomacy for the War at Home

If we are to fight a War at Home - waged by the NSA, the FBI, the Pentagon, the DIA - against terrorist threats to our Homeland, are we to do so in such a manner as to deliberately rule out any possible diplomatic solution?

If we are to trust our Government's assertion that a precipitous withdrawal from Iraq would increase the risk of terror attacks on our Homeland, and if it is the goal of our Government to remove our troops expediently and expidiciously, then it follows that a non-military approach to solving our National Quagmire is essential. Distasteful though it may seem, the search for a diplomatic victory may require the formal recognition of Al Qaeda, and a diplomatic relationship with this formal body.

I think it can be taken as obvious by now that Al Qaeda is not some loose band of thugs and theives hiding out in mountain caves, but is a group of individuals who are organized and resourceful, who confess a group identity, and who associate with various similar groups of individuals.

In terms of the phenomenology of the movement, it may be worthwhile to consider nationalism as a mechanism to account for Al Qaeda. If it seems odd to think of Al Qaeda in nationalistic terms - we are, after all, told Al Qaeda is a "network" - it is worth noting that we speak of "the Palestinians" as we speak of nationalities. We hear the President speak of "Palestine," although no such State has yet been established.

Any number of causes can be used to account for the motivations of individual members of Al Qaeda. Some individuals, certainly, are motivated by ideology; some, certainly, are so lost as human beings they hate our Country enough to die just to prove it. Others, likely, are motivated by what they've seen America do in Iraq, Panama, Angola, or the disputed Israeli territories - these latter persons motivated by desperation and the fear they will be assimilated next.

Were America to publicly recognize Al Qaeda as we recognize Nations, and open formal diplomatic negotiations, we could meaningfully ask the question, "How can we help make the Middle East more stable, prosperous, and egalitarian?" The asking of the question in such a context - backed by the demonstrable Will and ability to help carry out positive initiatives - means violence would no longer be a necessary first and last resort.

We must eliminate the need for terror as a political approach by separating terror as a tactic from the ideologies terrorists represent. In the absence of desperation, a radical approach is not necessary. Diplomacy as an outstretched hand gives reason to doubt the need for desperate measures.

Our Government must acknowledge the problematic nature of its present Middle East policy in order to demonstrate our leadership is not so rigid as to be unmoved even in the face of its own citizenry. We must demonstrate that our military presence in the Middle East does not represent a Colonial occupying force. We must demonstrate that our relationship with regional leaders is sufficiently developed as to facilitate regional cooperation.

Because cultural familiarity will be vital to successful diplomacy, we must build enduring ties with regional institutions, such as universities, art and natural history museums, humanitarian and civil liberties organizations, and entreprenurial or trade associations. We must help motivate Europe and China to engage in similar iniatives. We should help facilitate trade between the Middle East, South America, and Africa, possibly by subsidizing transportation or by providing training in management strategies. Al Qaeda must be granted the status of Nation; identified as such, these people will most likely seek to establish a State, and the interest of this people will require legitimate advocacy.

We must bring a truly global body of allies (and the whole array of their interlocked interests) to the negotiation table to produce a consensus regarding the appropriate steps for US troop withdrawal from the Middle East. As the United States Government contemplates new fronts in the War on Terror - from the Middle East to Asia to Africa - truly global negotiations with a formal body representing Al Qaeda are becoming increasingly necessary if we are to avert a global economic and humanitarian disaster.