| Truth: The Manning Trial’s Real Defendant!

The Manning Trial’s Real Defendant ~ Daniel C. Maguire, Consortiumnews.

Exclusive: The trial of Pvt. Bradley Manning for leaking classified documents is a test of values in the American Republic. The case pits a democracy’s need for knowledge against the government’s insistence on secrecy, a moral balancing act assessed by religious ethicist Daniel C. Maguire.

Bradley Manning is the accused but the real question is who is guilty, the accuser or the accused, the truth-teller or the secrecy-keeper, Private Manning or the U.S. government? In this case Manning is charged with truth-telling portrayed as a criminal act.

Intrinsic to a democracy is the tension between openness and concealment. In fairness to the government, truth-telling may be treacherous, even criminal. But in fairness to Private Manning, truth-telling may be an act of heroic patriotism.

Protesters outside Ft. Meade, Maryland, the site of Pvt. Bradley Manning’s court martial for leaking classified material.

The ethical definition of a lie tells why truth-telling is not always a virtue: A lie is when you deny the truth to someone who has a right to it.

Someone who was bringing food to Anne Frank and her family every day is asked by the Gestapo if he knows the whereabouts of the Frank Family. He replies “no” and he even adds his impression that the family left Amsterdam a long time ago. All of that is false, but is it a lie? No, because the Gestapo had no right to the truth regarding the Frank family. Falsiloquium (speaking falsely) is not alwaysmendacium (a lie.) Secrecy and concealment may be necessary to save lives.

In ethics this is called an issue of “supervening value.” In other words, ethics is a venue of competing values. Life-saving is more important than truth-telling in the Gestapo case. Telling the truth to the Gestapo would have been a lethal and immoral act.

When Truth-telling Is Right Even If Illegal

Bradley Manning is not charged with lying; he is charged with truth-telling. The central issue is whether the public has a right to know of war crimes committed by its government. A temptation to despotism lurks in every democratic society; it puts the burden of proof on the whistleblower, not on the classifier especially in matters military. In practice, the whistleblower is presumed guilty (especially if it is clear he violated the letter of a law) and the classifier enjoys an unmerited presumption of innocence..

The assumption is that the classifier saves lives while the whistleblower imperils them, but the very opposite may be and often is the truth. Excessive secrecy takes the leash off the dogs of war and people die unnecessarily.

It is a cliché that truth is the first casualty in war. For that reason, the Founders reserved the right to go to war (and to continue a war) to the Congress. James Madison said that “in no part of the Constitution is more wisdom to be found.” The insight of the Framers was that truth is more likely to be served in the branch of government where open debate isde rigueur.

Truth is more likely to get out and the vox populi is more likely to be informed and heard. That is why, as Professor Bruce Russett has shown, democracies win their wars as much as 80 percent of the time since more truth gets into the cost-benefits analysis that leads to a democratic declaration of war.

The ruling principle is this: There is never a time when citizens should be more informed than when their government is killing people in their name.

Declaring war according to the Constitution has been out of vogue since December 1941. This trashing of the Constitution subverts cleansing transparency and – given the misguided war choices emanating from the Executive Branch since then – post-World War II history vindicates the wisdom of the Founders.

“Debacle,” not “victory,” is applicable to our undeclared military expeditions in Korea, Vietnam, Iraq and Afghanistan. That sorry record owes more to excessive secrecy than to speakers of truth. And now the history of war has turned a corner with the entrance of drones, and again secrecy is dominant, possibly to be institutionalized in a “secret court” which will decide mob-style on who is to be whacked.

Bradley Manning is being tried in a culture that makes a fair trial all but impossible. The reigning jurisprudence – especially in military courts but also in the court of uninformed public opinion – has given the hegemony to secrecy and concealment. The crime of cover-up has been normalized and the truth-teller, like the truth, must be imprisoned.

The arguments in any trial are like waves. What counts are the tides of assumptions that undergird and control the proceedings. A history of hegemonic secrecy beclouds this j’accuse and Private Manning like the young biblical David faces formidable odds. Silence in the face of this makes citizens complicit in the cover-up of crimes against children, women and men who are the bloodied victims of our shrouded militarized foreign policy.

Whistle-blowing as Civil Service

Bradley Manning does not stand alone on the honor roll of patriotic whistleblowers and the good effects of his courageous act are just beginning to ripple out into history. Others have gone before him on this noble path. FBI historian Richard Fid Powers wrote in his book Broken: The Troubled Past and Uncertain Future of the FBI:

“The FBI’s power to conduct secret operations depended on its absolute freedom from any inquiry into its internal operations. On the night of March 8, 1971, that changed forever. A group calling itself the Citizens Commission to Investigate the FBI broke into the FBI resident agency in Media, Pennsylvania. The burglars were never caught.”

In witness to the fevered passion for secrecy, J Edgar Hoover launched the largest hunt in the history of the FBI, involving as many as 200 agents. That hunt failed but the noble burglary did not. It influenced the strengthening of the Freedom of Information Act in 1974 leading to the release of thousands of secret FBI documents. The FBI’s secret harassment of dissenters to the Vietnam War was exposed to disinfectant sunlight.

Military injustice may imprison Bradley Manning for revealing the crimes of our wars but Bradley Manning has served this nation, and the world, by showing again, as the Bible put it, that “you shall know the truth and the truth shall set you free.”(John 8:32)

Daniel C. Maguire, a professor of religious ethics at Marquette University, is author of Ethics: A Complete Method for Moral ChoiceFortress Press, 2010.

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| The 2nd Amendment and the madness of killing kids!

The 2nd Amendment and Killing Kids ~ Robert Parry, Consortium News.

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Exclusive: As Americans reel in shock over the slaughter of 20 schoolchildren in Newtown, Connecticut, defenders of “gun rights” insist, in effect, that such deaths are part of the price of “liberty” enshrined by the Framers in the Second Amendment. But this was not what James Madison had in mind, argues Robert Parry.

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The American Right is fond of putting itself inside the minds of America’s Founders and intuiting what was their “original intent” in writing the U.S. Constitution and its early additions, like the Second Amendment’s “right to bear arms.” But, surely, James Madison and the others weren’t envisioning people with modern weapons mowing down children in a movie theater or a shopping mall or now a kindergarten.

Indeed, when the Second Amendment was passed in the First Congress as part of the Bill of Rights, firearms were single-shot mechanisms that took time to load and reload. It was also clear that Madison and the others viewed the “right to bear arms” in the context of “a well-regulated militia” to defend communities from massacres, not as a means to enable such massacres.

James Madison, architect of the U.S. Constitution and author of the Bill of Rights.

The Second Amendment reads: “A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” Thus, the point of the Second Amendment is to ensure “security,” not undermine it.

The massacre of 20 children in Newtown, Connecticut, on Friday, which followed other gun massacres in towns and cities across the country, represents the opposite of “security.” And it is time that Americans of all political persuasions recognize that protecting this kind of mass killing was not what the Founders had in mind.

However, over the past several decades, self-interested right-wing “scholarship” has sought to reinvent the Framers as free-market, government-hating ideologues, though the key authors of the U.S. Constitution – people like James Madison and George Washington – could best be described as pragmatic nationalists who favored effective governance.

In 1787, led by Madison and Washington, the Constitutional Convention scrapped the Articles of Confederation, which had enshrined the states as “sovereign” and had made the federal government a “league of friendship” with few powers.

What happened behind closed doors in Philadelphia was a reversal of the system that governed the United States from 1777 to 1787. The laws of the federal government were made supreme and its powers were dramatically strengthened, so much so that a movement of Anti-Federalists fought bitterly to block ratification.

In the political maneuvering to assure approval of the new system, Madison and other Federalists agreed to add a Bill of Rights to ease some of the fears about what Anti-Federalists regarded as the unbridled powers of the central government. [For details, see Robert Parry’s America’s Stolen Narrative.]

Madison had considered a Bill of Rights unnecessary because the Constitution, like all constitutions, set limits on the government’s power and it contained no provisions allowing the government to infringe on basic liberties of the people. But he assented to spell out those rights in the first 10 amendments, which were passed by the First Congress and ratified in 1791.

The intent of the Second Amendment was clarified during the Second Congress when the U.S. government enacted the Militia Acts, which mandated that all white males of military age obtain a musket, shot and other equipment for service in militias.

The idea was to enable the young country to resist aggression from European powers, to confront Native American tribes on the frontier and to put down internal rebellions, including slave revolts. There was nothing particularly idealistic in this provision; the goal was the “security” of the young nation.

However, the modern American Right and today’s arms industry have devoted enormous resources to twisting the Framers into extremist ideologues who put “liberties” like individual gun ownership ahead of all practical concerns about “security.”

This propaganda has proved so successful that many politicians who favor common-sense gun control are deemed violators of the Framers’ original intent, as essentially un-American, and face defeat in elections. The current right-wing majority on the U.S. Supreme Court has even overturned longstanding precedents and reinterpreted the Second Amendment as granting rights of individual gun ownership.

But does anyone really believe that Madison and like-minded Framers would have stood by and let deranged killers mow down civilians, including children, by using guns vastly more lethal than any that existed in the Revolutionary era? If someone had wielded a single-shot musket or pistol in 1791, the person might get off one volley but would then have to reload. No one had repeat-firing revolvers, let alone assault rifles with large magazines of bullets.

Any serious scholarship on the Framers would conclude that they were, first and foremost, pragmatists determined to protect the hard-won independence of the United States. When the states’-rights Articles of Confederation wasn’t doing the job, they scrapped it. When compromises were needed – even on the vile practice of slavery – the Framers cut the deals.

While the Framers cared about liberty (at least for white men), they focused in the Constitution on practicality, creating a flexible system that would advance the “general Welfare” of “We the People.”

It is madness to think that the Framers would have mutely accepted the slaughter of kindergarteners and grade-school kids (or the thousands of other American victims of gun violence). Such bloody insecurity was definitely not their “original intent.”

Investigative reporter Robert Parry broke many of the Iran-Contra stories for The Associated Press and Newsweek in the 1980s. You can buy his new book, America’s Stolen Narrative, either in print here or as an e-book (from Amazon and barnesandnoble.com).

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SECOND AMENDMENT ~ Legal Information Institute, Cornell University Law School.

The Second Amendment of the United States Constitution reads: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” Such language has created considerable debate regarding the Amendment’s intended scope. On the one hand, some believe that the Amendment’s phrase “the right of the people to keep and bear Arms” creates an individual constitutional right for citizens of the United States. Under this “individual right theory,” the United States Constitution restricts legislative bodies from prohibiting firearm possession, or at the very least, the Amendment renders prohibitory and restrictive regulation presumptively unconstitutional. On the other hand, some scholars point to the prefatory language “a well regulated Militia” to argue that the Framers intended only to restrict Congress from legislating away a state’s right to self-defense. Scholars have come to call this theory “the collective rights theory.” A collective rights theory of the Second Amendment asserts that citizens do not have an individual right to possess guns and that local, state, and federal legislative bodies therefore possess the authority to regulate firearms without implicating a constitutional right.

In 1939 the U.S. Supreme Court considered the matter in United States v. Miller. 307 U.S. 174. The Court adopted a collective rights approach in this case, determining that Congress could regulate a sawed-off shotgun that had moved in interstate commerce under the National Firearms Act of 1934 because the evidence did not suggest that the shotgun “has some reasonable relationship to the preservation or efficiency of a well regulated milita . . . .” The Court then explained that the Framers included the Second Amendment to ensure the effectiveness of the military.

This precedent stood for nearly 70 years when in 2008 the U.S. Supreme Court revisited the issue in the case of District of Columbia v. Heller (07-290). The plaintiff in Hellerchallenged the constitutionality of the Washington D.C. handgun ban, a statute that had stood for 32 years. Many considered the statute the most stringent in the nation. In a 5-4 decision, the Court, meticulously detailing the history and tradition of the Second Amendment at the time of the Constitutional Convention, proclaimed that the Second Amendment established an individual right for U.S. citizens to possess firearms and struck down the D.C. handgun ban as violative of that right. The majority carved out Miller as an exception to the general rule that Americans may possess firearms, claiming that law-abiding citizens cannot use sawed-off shotguns for any law-abiding purchase. Similarly, the Court in its dicta found regulations of similar weaponry that cannot be used for law-abiding purchases as laws that would not implicate the Second Amendment. Further, the Court suggested that the United States Constitution would not disallow regulations prohibiting criminals and the mentally ill from firearm possession.

 

Thus, the Supreme Court has revitalized the Second Amendment.  The Court continued to strengthen the Second Amendment through the 2010 decision in McDonald v. City of Chicago (08-1521).  The plaintiff inMcDonald challenged the constitutionally of the Chicago handgun ban, which prohibited handgun possession by almost all private citizens.  In a 5-4 decisions, the Court, citing the intentions of the framers and ratifiers of the Fourteenth Amendment, held that the Second Amendment applies to the states through the incorporation doctrine.  However, the Court did not have a majority on which clause of the Fourteenth Amendment incorporates the fundamental right to keep and bear arms for the purpose of self-defense.  While Justice Alito and his supporters looked to the Due Process Clause, Justice Thomas in his concurrence stated that the Privileges and Immunities Clause should justify incorporation.

 

 

However, several questions still remain unanswered, such as whether regulations less stringent than the D.C. statute implicate the Second Amendment, whether lower courts will apply their dicta regarding permissible restrictions, and what level of scrutiny the courts should apply when analyzing a statute that infringes on the Second Amendment.

See constitutional amendment.

 

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Erwin Chemerinsky, Constitutional Law: Principles and Policies 26-28 (2006).

Federal Decisions:

 

Putting all of these textual elements together, we find that [the Second Amendment] guarantee[s] the individual right to possess and carry weapons in case of confrontation. This meaning is strongly confirmed by the historical background of the Second Amendment. We look to this because it has always been widely understood that the Second Amendment , like the First and Fourth Amendment s, codified a pre-existing right. The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it “shall not be infringed.”

District of Columbia v. Heller, 478 F.3d 370 (2008)

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| Bankruptcy Blues + tERRORism: End the war on terror and save billions!

End the war on terror and save billions ~ PAUL WOODWARD, War in Context.

Fareed Zacharia writes: As we debate whether the two parties can ever come together and get things done, here’s something President Obama could probably do by himself that would be a signal accomplishment of his presidency: End the war on terror. Or, more realistically, start planning and preparing the country for phasing it out.

For 11 years, the United States has been operating under emergency wartime powers granted under the 2001 “Authorization for Use of Military Force.” That is a longer period than the country spent fighting the Civil War, World War I and World War II combined. It grants the president and the federal government extraordinary authorities at home and abroad, effectively suspends civil liberties for anyone the government deems an enemy and keeps us on a permanent war footing in all kinds of ways.

Now, for the first time since Sept. 11, 2001, an administration official has sketched a possible endpoint.

In a thoughtful speech at the Oxford Union last week, Jeh Johnson, the outgoing general counsel for the Pentagon, recognized that “we cannot and should not expect al-Qaeda and its associated forces to all surrender, all lay down their weapons in an open field, or to sign a peace treaty with us. They are terrorist organizations. Nor can we capture or kill every last terrorist who claims an affiliation with al-Qaeda.”

But, he argued, “There will come a tipping point . . . at which so many of the leaders and operatives of al-Qaeda and its affiliates have been killed or captured, and the group is no longer able to attempt or launch a strategic attack against the United States, such that al-Qaeda as we know it, the organization that our Congress authorized the military to pursue in 2001, has been effectively destroyed.” At that point, “our efforts should no longer be considered an armed conflict.”

Phasing out or modifying these emergency powers should be something that would appeal to both left and right. James Madison, father of the Constitution, was clear on the topic. “Of all the enemies to public liberty,” he wrote, “war is, perhaps, the most to be dreaded, because it comprises and develops the germ of every other. War is the parent of armies; from these proceed debts and taxes. . . . No nation could preserve its freedom in the midst of continual warfare.”

If you want to know why we’re in such a deep budgetary hole, one large piece of it is that we have spent around $2 trillion on foreign wars in the past decade.

[Continue reading…]

And ending the war on terror wouldn’t just save money — it would allow for the possibility that America as a nation might be able to climb out of one of the most destructive expressions of collective insanity into which any nation has ever fallen.

Politics might dictate that this war can only be ended through some kind of declaration of victory, but an honest reckoning will eventually require acknowledging that this was the greatest blunder in America’s history. A trap was laid, and like a brainless giant, the United States stepped right into it.

Who could imagine that by making the meager investment of a few flying lessons and some box cutters, a small band of fanatics could persuade a country that prides itself as “the greatest nation on earth” to near bankrupt itself, act with such stupidity and inflict such enormous harm?

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| Electoral Reform: Time to end the US Electoral College!

It’s Time to End the Electoral College ~ Katrina vanden Heuvel, The Nation.

America can be a strange place. Tuesday night, after learning that President Obama had won Ohio and thus (what a relief!) secured re-election, many of us went to sleep without knowing which candidate more Americans had voted for.

It turns out Obama won the popular vote too, averting a much-predicted electoral college/popular vote split. Some will argue that winning the popular vote as well as the electoral college gives Obama more of a mandate to govern—and it should. But this election—the latest to be fought out over a dozen counties rather than fifty states—should still offer an inspiration to fix how we pick our presidents.

Some argued in recent weeks that Obama wouldn’t score a “real” win if he secured the electoral college alone. But the real issue wasn’t the legitimacy of a victory—it was the integrity of our democracy. After all, this election was governed by the archaic rules we still use. Both campaigns knew this, and essentially wrote off efforts to win the popular vote for its own sake. A popular vote election would have been a very different election in all kinds of respects (consider the drop-off in Obama’s support in deep-blue states, which neither side had reason to care about).

(Facile comparisons to 2000 were inevitable, and of course that election also illustrated the inanity of the electoral college. But liberal rejection of that election’s legitimacy was based in other outrages: names expunged; voters intimidated; translators denied; recounts halted; malfunctioning machines.)

But what we do know is that every American would have had the chance to participate on an equal basis, in sharp contrast to our current system in which four out of five are absolutely ignored by both campaigns.

Electoral college defenders offer a range of arguments, from the openly anti-democratic (direct election equals mob rule), to the nostalgic (we’ve always done it this way), to the opportunistic (your little state will get ignored! More vote-counting means more controversies! The Electoral College protects hurricane victims!). But none of those arguments overcome this one: One person, one vote.

Our current system has a different pedigree: the “three-fifths compromise” between slave states and free states. As Yale constitutional law expert Akhil Amar has pointed out, James Madison wrote in his diary that the question of counting slaves posed a challenge “of a serious nature.… The substitution of electors obviated this difficulty and seemed on the whole to be liable to the fewest objections.”

The American electorate has been transformed since then. But not the Electoral College. In a 2000 editorial, we called our system “a drafty old house.” Perhaps we were being too generous.

As Harvard historian Alexander Keyssar observed, “It is hardly an accident that no other country in the world has imitated our Electoral College.” Imagine, for a moment, trying to convince constitution-writers in any newly democratic nation that there are more prudent alternatives to one person, one vote. Or proposing that California, which is large and diverse in its own right, assign votes to its various regions rather than to its citizens. Or suggesting that the US choose its president by tabulating who won the battleground age groups, or classes or religions.

So what can be done? Congress could get the ball rolling but, with Republicans holding the House, we shouldn’t hold our breath. Fortunately, we don’t have to. Thanks to Amar’s clever strategy and advocates’ savvy organizing, there’s an alternative, with momentum: state-by-state National Popular Vote (NPV).

The concept is simple: individual state legislatures pledge that they’ll assign all of their electoral votes to whichever candidate wins the national popular vote—conditional on enough other states following suit. Once a majority of the nation’s electoral votes rest in states that have passed NPV measures, the laws go into effect and winning the popular vote becomes the only way to win. This elegantly exploits one of the perversities of our current system—there’s no individual, federal right to have your ballot counted—and turns it against the system itself. It’s a state-based solution that could finally force a federal popular-vote election.

And it’s gaining steam. In fact, it’s almost halfway there. Nine states with 132 electoral votes have already passed NPV (that’s 49 percent of the necessary 270 electoral votes). While opponents claim that popular vote elections (read: democracy) would doom small states to irrelevance, some small states aren’t convinced. NPV supporters include not just California (fifty-five electoral votes), but states like Maryland (ten), Hawaii (four), and Vermont (three). After another election fought out over state like Ohio and Florida, it’s not hard to imagine why. In 2008, Ohio drew more campaign cash and visits than the smallest twenty-five states; this year’s stats will be even worse.

“Whether you pounded the pavement or picked up the phone,” Obama told the crowd late Tuesday night, “whether you held an Obama sign or a Romney sign, you made your voice heard and you made a difference.” It’s time to end the Electoral College, so those words can pack a greater punch.

Obama won the popular vote last night thanks to a diverse coaltion of citizens. Check out The Nationeditors’ take on “A Progressive Surge” in this election.

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| Who is the worst civil liberties President in US history?

Who is the worst civil liberties president in US history? ~ guardian.co.uk.

Where do the abuses of the last decade from Bush and Obama rank when compared to prior assaults in the name of war?

Barack Obama and George Bush at the White House

Barack Obama and George Bush at the White House. Photograph: Jim Watson/AFP/Getty Images

The following interesting question arose yesterday from what at first appeared to be some petty Twitter bickering: who was the worst president for civil liberties in US history? That question is a difficult one to answer because it is so reliant upon which of many valid standards of measurement one chooses; it depends at least as much on the specific rights which one understands the phrase “civil liberties” to encompass. That makes the question irresolvable in any definitive way, but its examination is nonetheless valuable for the light it sheds on current political disputes.

It’s worthwhile first to set forth the context in which the question arose. At their Lawfare blog, Ritika Singh and Benjamin Wittes posted an excerpt of an essay they wrote for a new book on the War of 1812; their essay pertains to the impact of that war on civil liberties and executive power. The two Brookings writers note that despite intense domestic opposition to the war, President Madison “eschewed the authority to detain American citizens in military custody or try them in military tribunals, and more generally, declined to undertake the sorts of executive overreaches we have come to expect – and even encourage – from our presidents in war.”

After Julian Sanchez, I and others tweeted that essay by remarking that Madison refrained from exploiting the war to abridge civil liberties, Slate’s Matt Yglesias’ wrote:

yglesias tweetThat struck me as a cheap and vapid reply. Nobody was suggesting that Madison was the personification of civil liberties nirvana. Rather, the point was a very narrow and discrete one: he largely refrained from exploiting the War of 1812 as a pretext for abridging extant political rights. Whether he owned slaves – or was otherwise the worst monster in history – does not remotely pertain to, let alone negate, that specific and important historical fact about Madison’s presidency.

Moreover, the issue raised by the essay on Madison was about the extent to which presidents use their power to erode civil liberties which exist when they assumed the office, or refrain from attacking those rights despite having the opportunity in the form of war or other crises. That a person is born into a society in which the evil of slavery already exists has little to do with that historical question.

That said, once one posits a president’s personal slavery ownership as inconsistent with a positive civil liberties record – as Yglesias implicitly did – then that must be the number one factor in assessing a president’s place on the civil liberties list. By that metric, all slave-owning presidents, or one whoexpressly endorsed the Dred Scott decision as James Buchanan did, would automatically have to be deemed the worst.

After all, owning human beings as chattel is the supreme civil liberties violation, by far the gravest civil liberties abuse in US history. That goes without saying. It is sui generis.

That’s why it was so bizarre to see that the very same Matt Yglesias, just moments later, pronounced Woodrow Wilson – a president who never owned any slaves and never presided over slavery – to be the “worst-ever president on civil liberties”, even suggesting that Wilson has no “serious competition” for that ignominious title. It was when I pointed out the irony of Yglesias’ selection of a non-slave-owning president in light of his tweet that the interesting question arose of who should be considered the worst civil liberties president in US history.

If one were simply to consider specific acts which constituted grave assaults on civil liberties – narrowly defined as the core political rights explicitly protected by the Bill of Rights: free speech, freedom from deprivation of life and liberty without due process, etc. – one could make a strong argument for several presidents. John Adams signed The Alien and Sedition Acts, which essentially criminalized certain forms of government criticism in preparation for a war with France, a radical assault on the First Amendment.

Abraham Lincoln illegally suspended the core liberty of habeas corpus without Congressional approval. Wilson’s attacks on basic free speech in the name of national security were indeed legion and probably unparalleled. Franklin Roosevelt oversaw the due-process-free internment of more than 100,000 law-abiding Japanese-Americans into concentration camps.

And then there are the two War on Terror presidents. George Bush seized on the 9/11 attack to usher in radical new surveillance and detention powers in the PATRIOT ACT, spied for years on the communications of US citizens without the warrants required by law, and claimed the power to indefinitely imprison even US citizens without charges in military brigs.

His successor, Barack Obama, went further by claiming the power not merely to detain citizens without judicial review but to assassinate them (about whichthe New York Times said: “It is extremely rare, if not unprecedented, for an American to be approved for targeted killing”). He has waged an unprecedented war on whistleblowers, dusting off Wilson’s Espionage Act of 1917 to prosecute more then double the number of whistleblowers than all prior presidents combined. And he has draped his actions with at least as much secrecy, if not more so, than any president in US history.

Ultimately, it is close to impossible to rank these abuses strictly as a qualitative matter, in terms of the powers seized. How does one say that interning citizens in concentration camps (Roosevelt) is better or worse than imprisoning people for dissent (Adams and Wilson), putting people in cages with no charges (Lincoln, Bush, Obama), or claiming the power to execute citizens in total secrecy and without any checks of any kind (Obama)? If anything, one could reasonably argue that the power of due-process-free executions is the most menacing since it’s the only act that is permanent and irreversible.

Certainly, the quantity of abuse matters. In that regard, Roosevelt’s interments and Wilson’s free speech prosecutions would appear worse than, say, Adams’ attacks on dissent, Bush’s indefinite detentions, or Obama’s citizen assassinations.

Moreover, it is one of the ironies of US history that civil liberties erosions are often accompanied by civil liberties progress from the same leader: Adams was integral in the founding of the republic and its rights-enshrining documents; Lincoln freed the slaves; Wilson supported women’s suffrage; Roosevelt appointed two of the most sterling civil liberties advocates to the supreme court; Obama withdrew authorization for some torture techniques (ones that were not in use when he was inaugurated) and banned CIA black sites (ones that were empty when he assumed office).

Ultimately, there are two critical factors that, for me at least, are highly influential if not decisive in determining the proper ranking. The first is the extent to which the civil liberties abuses are temporary or permanent.

Most of the contenders for worst civil liberties abuses were “justified” by traditional wars that had a finite end and thus dissipated once the wars were over. Lincoln’s habeas suspension did not survive the end of the Civil War, nor did FDR’s internment camps survive the end of World War II. The Alien and Sedition Acts were severely diluted fairly quickly, while the bulk of Wilson’s abuses which survived World War I lay dormant until the War on Terror. As horrible as they were, these radical erosions were often finite, arguably by design, since the wars which served as their pretext would foreseeably end at some point.

This is one key factor that distinguishes the War on Terror. By its nature, it will never end, at least not in the foreseeable future. It is a “war” far more in a metaphorical sense than a real one.

Since it began, both administrations who have waged it have expressly acknowledged its virtually indefinite – and thus unique – nature. In May 2009, when Obama unveiled his proposal for “preventive detention”, he said: “Unlike the Civil War or World War II, we can’t count on a surrender ceremony to bring this journey to an end.” He added that we’ll still be fighting this war “a year from now, five years from now, and – in all probability – 10 years from now.”

Just last week, the Washington Post reported that the Obama administration is creating permanent bureaucratic systems to implement its War on Terror powers as it “expects to continue adding names to kill or capture lists for years”. Specifically, “among senior Obama administration officials, there is broad consensus that such operations are likely to be extended at least another decade.” That “suggests that the United States has reached only the midpoint of what was once known as the global war on terrorism.”

Civil liberties abuses justified by a finite war can be awful while they last, but then they cease. Abuses that are systematized based on the premise that they are to be permanent do far more than that: they radically alter the nature of the government and the relationship of the political class to the citizenry.

This, to me, has always been the most uniquely pernicious aspect of the War on Terror civil liberties assaults of the last decade: they will not end when the “war” does because the “war” will have no end. Each new power is embedded permanently into the political framework, incrementally transforming the political culture and the species of government itself.

The second vital factor is the justification used for these assaults. However critical one wants to be of Lincoln, Wilson and Roosevelt – and harsh criticism is appropriate in all three cases – they were actually fighting major wars that had the potential to severely harm if not destroy the US. To the extent that war is a justification for increasing the powers of the executive, those three wars are clearly the most compelling examples.

By contrast, the “War on Terror” is not even legitimately described as a “war”, let alone one anywhere near the magnitude of its predecessors. Shortly after I began writing about politics in late 2005, I examined the inane tactic of Bush-following neoconservatives – one that is, like so many neocon views, now vigorously embraced by many Obama defenders – to cite Lincoln’s civil liberties abridgments during the Civil War to justify abridgments in the name of the War on Terror. The fundamental differences are obvious:

“During Lincoln’s Presidency, the entire nation was engulfed in an internal, all-out war. Half of the country was fully devoted to the destruction of the other half. The existence of the nation was very much in doubt. Americans were dying violent deaths every day at a staggering rate. One million American were wounded and a half-million Americans died (a total which represented 5% of the total population), making it the deadliest war America has ever faced, by far, including all wars through the present. On multiple occasions, more than 25,000 Americans – and sometimes as many as 50,000 – were killed in battles lasting no more than three days. The scope of carnage, killing, and chaos – all within the country, on American soil – is difficult to comprehend.

“Making matters worse – much worse – the country was only 70 years old at the time. And even before the Civil War began, America was teetering precariously from these unresolved internal conflicts. The country then was a shadow of what it is today, with a tiny faction of the strength, stability and cohesion which, 140 years later, characterize the United States.”

It takes little effort to demonstrate that the “War on Terror” is not in the same universe. As Professor Richard Jackson has documented, there is a greater risk of dying from lightning strikes or bathtub falls than terrorism. Professors John Mueller and Mark G. Stewart, writing in the latest issue of International Security, condemned the “extraordinarily exaggerated and essentially delusional response” to 9/11. As Professor Stephen Walt described their article:

“Mueller and Stewart analyze 50 cases of supposed ‘Islamic terrorist plots’ against the United States, and show how virtually all of the perpetrators were (in their words) ‘incompetent, ineffective, unintelligent, idiotic, ignorant, unorganized, misguided, muddled, amateurish, dopey, unrealistic, moronic, irrational and foolish.’ They quote former Glenn Carle, former deputy national intelligence officer for transnational threats saying ‘we must see jihadists for the small, lethal, disjointed and miserable opponents that they are,’ noting further that al-Qaida’s ‘capabilities are far inferior to its desires.'”

To the extent the validity of the proffered justification matters, and it must matter some, the War on Terror abuses are easily the worst for this metric. Unlike the actual, threatening wars of the past, this “war” is pure pretext, a total farce: so out of proportion to the civil liberties assaults employed in its name as to be inconceivable.

As noted, this discussion assumes a rather narrow range of the term “civil liberties”: namely a focus on the original core political liberties expressly guaranteed by the Bill of Rights: freedom of speech, freedom from deprivation of life and liberty without due process, habeas corpus. If one expands the term to include more contemporary debates surrounding issues such as gay equality and reproductive rights, as is proper, then the overall picture meaningfully changes.

The one common strain running through these historic civil liberties assaults is war. War almost always erodes political liberties. That has always been true. Cicero famously observed “inter arma, enim silent leges” (in times of war, the law falls mute).

That fact – that wars maximize a political leader’s power – is a key reason they often crave war and why wars, under the Constitution, were supposed to be extremely difficult for presidents to start. As John Jay wrote in Federalist 4, “absolute monarchs will often make war when their nations are to get nothing by it, but for the purposes and objects merely personal” (that’s also why theabsurd contortions invoked by President Obama to fight a war in Libya not only in the absence of Congressional approval, but in the face of formal Congressional disapproval, belongs high on the list of his worst and likely most enduring civil liberties assaults).

But in terms of the role played by war in enabling civil liberties assaults, at least the exploited wars are usually real. In the case of the “War on Terror”, it is far more illusory and frivolous than real. That – along with their permanence – is a major factor in determining where the civil liberties erosions of the last decade, and the presidents responsible for them, rank in history.

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