Fighting domestic terrorism is necessary and also dangerous to our civil liberties

Today the White House released its "National Strategy for Countering Domestic Terrorism." The promise is that it "lays out a comprehensive approach to protecting our nation from domestic terrorism while safeguarding our bedrock civil rights and civil liberties." But fighting terrorism -- a necessary task -- is in always tension with protecting civil liberties, as should be obvious from our experiences over the last 20 years. It probably won't be different this time -- and the danger is that as a result, the radicals might take the whole thing as proof they're on the right track. (We've seen it before, domestically: Ruby Ridge and Waco led to Oklahoma City.) I'm not sure the right balance can be found.

Bill Barr, civil liberties, and sedition

 It's interesting that this news:

Attorney General William Barr drew criticism after calling lockdown measures aimed at controlling the spread of COVID-19 the worst infringement on civil liberties other than slavery.

Came down at the same time as this news:

William Barr told prosecutors to explore aggressive charges against people arrested at recent demonstrations across the US, even suggesting bringing a rarely used sedition charge, reserved for those who have plotted a threat that posed imminent danger to government authority, according to multiple reports on Wednesday.

Barr's interest in civil liberties is ... situational, shall we say.

There is no right to commit vandalism of and destruction to government property, of course, but there's a reason sedition charges are rarely used: They've often been used in American history to tamp down legitimate dissent.

This was notoriously the case under President John Adams. Jill Lepore, in her book THESE TRUTHS, wrote about his use of a sedition law to punish political opponents:

Sedition laws were also used abusively around World War I.

Though Wilson and Congress regarded the Sedition Act as crucial in order to stifle the spread of dissent within the country in that time of war, modern legal scholars consider the act as contrary to the letter and spirit of the U.S. Constitution, namely to the First Amendment of the Bill of Rights. One of the most famous prosecutions under the Sedition Act during World War I was that of Eugene V. Debs, a pacifist labor organizer and founder of the Industrial Workers of the World (IWW) who had run for president in 1900 as a Social Democrat and in 1904, 1908 and 1912 on the Socialist Party of America ticket.

After delivering an anti-war speech in June 1918 in Canton, Ohio, Debs was arrested, tried and sentenced to 10 years in prison under the Sedition Act. Debs appealed the decision, and the case eventually reached the U.S. Supreme Court, where the court ruled Debs had acted with the intention of obstructing the war effort and upheld his conviction. In the decision, Chief Justice Oliver Wendell Holmes referred to the earlier landmark case of Schenck v. United States (1919), when Charles Schenck, also a Socialist, had been found guilty under the Espionage Act after distributing a flyer urging recently drafted men to oppose the U.S. conscription policy.

I don't envy the politicians who have tried -- not always successfully -- to balance the requirements of public health with the obligations of protecting civil liberties. But they have been working (despite criticisms) to protect public health, not to punish their enemies. Sedition laws are generally used to punish acts committed in the name of some sort of wrongthink. To me, at least, that's a more dangerous kind of civil liberties violation. It also happens to be the kind that Attorney General Bill Barr endorses.

We can use our laws to detain alleged terrorists. They can't use our laws to get undetained.

NYT:

A federal appeals court panel has ruled for the first time that prisoners at Guantánamo Bay, Cuba, are not entitled to due process, adopting a George W. Bush-era view of detainee rights that could affect the eventual trial of the men charged in the Sept. 11, 2001, attacks.

“The Due Process Clause may not be invoked by alien without property or presence in the sovereign territory of the United States,” Judge Rao wrote, a position also taken by Judge A. Raymond Randolph.

The reach of American courts extends throughout the world. The reach of America's rights before a court does not. 

How to solve the problem of bathrooms and gender: Privacy for everybody!

My memories of sixth grade: Moving to a new town, starting middle school, and being herded into group showers with a bunch of naked boys I’d just met.

It’s not a pleasant memory. After a lifetime of being educated on modesty, I suddenly found myself thrust into the most immodest of situations: The requirement that we take showers at the end of our P.E. classes. The boy’s locker room at my new middle school was cramped and had one big shower with a half-dozen nozzle for considerably more than a half-dozen boys. Exacerbating the discomfort? Some of us were hitting puberty faster than others.

Some of us, like me, were hitting it a little later.

That wasn’t the only upsetting feature of the experience. There was the kid who, after showering, put his socks on before putting his underwear. Who does that? Worse yet: My experience with an older kid — I think he’d been held back at least once — who had, to my tender eyes, the body of man: He loomed over me, freakishly hairy in all the spots you’d expect, with muscles that God never quite chose to bestow upon me. Whichever nozzle I managed to claim, even briefly, was the one he decided should be his own.

Ever had to fight naked in the showers? There’s nothing good about it.

All this makes me think that we’re trying to answer the wrong question in the current debate over what bathrooms should be used by which people of which gender identities. The real question is this: Why do we expect people of any gender or orientations to place themselves in a situation where they might be regularly expected to see somebody else’s genitals — or be seen?

Why should anybody have to give up that privacy?

After New York: A question about police, protests, and the limits of politics

Since it now seems to be a common theme on the right that critics of police practices enabled the (horrible, awful, only-to-be-condemned) murders of two New York cops, a question:

What is a permissible level of protest regarding police activities?

What is a permissible level of criticism?

Are any protests or criticisms permissible, or do they by definition contribute to a lawlessness that endangers police lives and thus our civic order?

As long as Obama approves of drone strikes on American citizens, it's OK

Greg Sargent:

Depressingly, Democrats approve of the drone strikes on American citizens by 58-33, and even liberals approve of them, 55-35. Those numbers were provided to me by the Post polling team.

It’s hard to imagine that Dems and liberals would approve of such policies in quite these numbers if they had been authored by George W. Bush.

That's right. I've already written about my angst about President Obama and the way he's gone against my hopes and expectations, where civil liberties are concerned. But Sargent is right: If George W. Bush was commanding drones to assassinate American citizens, the left would be up in arms. But somebody from our tribe is pulling the trigger now, so no big thing, right?

If you trust Obama with that power, liberals, understand: Eventually there will be another Republican president. Maybe not in 2012. But it will happen. Will you trust that president—Rick Santorum, say, or Paul Ryan—to use that power in a way that you also trust? And if not, how do you craft a reasonable rule that gives Obama the go-ahead while leashing President Bachmann? It's probably not possible. If you roll over for Obama, you'll have little standing to complain a few years from now. I certainly won't want to hear it.

Obama, civil liberties, and security

Over at No Left Turns, Bill Voegeli offers a thoughtful response to my Philly Post piece decrying President Obama's signing of the NDAA. I suggested Obama had betrayed the cause of civil liberties; Voegeli sees it a bit differently. If I'm reading it correctly, his argument is two-fold:

• The now-bipartisan embrace of once-unthinkable security measures represents a considered response to the terror threat that the United States faces. "National security is a hard, grave business. Candidates who spoke as glibly as bloggers and editorialists about respecting boundaries regardless of the consequences become far less categorical when they're in important positions of national power and must confront just how horrific those consequences might be."

• Secondly, that we're at war, and sometimes during war the Constitution is set aside in order to save it. "Drawing the lines and rightly understanding the nation's exigencies is not merely a post-9/11 problem. The most famous example is Abraham Lincoln suspending the writ of habeus corpus - first by executive order, later according to congressional enactment - as secession and civil war consumed the nation in 1861. He defended his actions in a message to Congress: 'The whole of the laws which were required to be faithfully executed, were being resisted, and failing of execution, in nearly one-third of the States. Must they be allowed to finally fail of execution, even had it been perfectly clear, that by the use of the means necessary to their execution, some single law, made in such extreme tenderness of the citizen's liberty, that practically, it relieves more of the guilty, than of the innocent, should, to a very limited extent, be violated? To state the question more directly, are all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one be violated? Even in such a case, would not the [president's] official oath [of office] be broken, if the government should be overthrown, when it was believed that disregarding the single law, would tend to preserve it?'"

Let's take the second point first. More than a decade after 9/11, it seems apparent to me that a "war" framework for dealing with terrorism badly serves the United States and its citizens. War, after all, is an emergency: Lincoln had a sense that the emergency would end when he set aside habeas corpus; FDR had the same sense when he gave Nazi saboteurs a kangaroo trial during 1942 and confined Japanese-Americans to prison camps.  Sooner or later, the war would be over—and eventually the excesses undertaken in the national defense would recede into a half-embarrassing history generally understood to be at odds with the longer, stronger narrative of American liberty. It's a pattern that's repeated itself over and over again throughout the country's history.

America has spent more days at war with Al Qaeda than we did enmeshed in the Civil War and World War II combined. There is no end in sight. I have no reason to believe that the "emergency" represented by the War on Terror will end in my lifetime. So the "temporary" excesses—the setting aside of certain Constitutional safeguards—doesn't appear to be temporary at all. It's the new normal, one that is a clear departure from 200 years of an American journey toward greater-liberty.

What's remarkable about the NDAA and its expanded detention powers for government is that it comes at a time when Al Qaeda has essentially been defeated. To use Voegeli's Civil War reference, it's as though General Robert E. Lee had surrendered at Appamattox—and then the federal government decided it was really, really time to get serious about cracking down on insurgents. And it's a further indication that the war will go on forever, even when the men and group that initiated have vanished from both the earth and operational effectiveness.

But there are, clearly, still bad men out there who will try to do bad things to America. Given the current dynamics of American politics and law, as long as there is even one non-state terrorist attempting to harm the United States, we remain at war. Our laws and policies—our Constitution—can be held hostage by a few people with bad intent. That's where we're at. Whatever the deficiencies of the "crime" approach to terrorism, it at least didn't trap us in an unending emergency. To use an old trope: "Tell me how this ends." If you can, I might be more sympathetic to the excesses, knowing eventually they'll end. But nobody really can, and I'm not.

Which leads us to the behavior of the political establishment.

One might see the bipartisan consensus for the NDAA as proof of its wisdom. But one might also take a look at how political incentives have developed since 9/11, where even unsuccessful attack attempts have been used as proof of a president's supposed weakness. The president and Congress have decided they have more to lose, politically, by not being "tough" than they do by being steadfast about America's history of civil liberties. That, of course, means they've judged the American public is more interested in safety than civil liberties.

At some point, I guess, I have to accept that. My viewpoint on these matters probably isn't the majority viewpoint.

But I remain irritated, to say the least, that there are many people in American politics who see creeping tyranny in EPA regulations but are happy to support indefinite detention. Kim Jong-Il, after all, isn't reviled because he made North Koreans fill out paperwork on toxic chemical spills.

And given the eternal nature of the War on Terror, we shouldn't fool ourselves that we're on the same path of liberty that Americans have imperfectly been trodding for a couple of centuries. We're choosing a slightly different path, in the name of security. Most of us might not even notice the difference in our daily lives—we probably won't see the differences except in occasional Pulitzer-winning newspaper stories about how "other" people have been made to suffer—but it will be different all the same. We're not setting aside the Constitution and law in order to save them; we're simply setting them aside.

Maybe we'll be safer. We'll certainly be less free. When the next attack succeeds—somewhere, eventually, it will—the laws will be tightened even further. And so on and so forth, with cries of "freedom" escaping our lips the whole time, even as we forget what we once thought that word meant.

Updated: I misspelled Voegeli's name in the first edition of this post. My apologies.

On gay marriage: Civil liberties are not a zero-sum game

I respect Rod Dreher's work on most things, even though I disagree with much of it, because he's thoughtful and eloquent and tries to think outside his own biases. Except when it comes to matters of sexuality: Then turns a bit shrill. So it is today, when he posts the story of a U.K. "housing manager" who received a demotion for criticizing gay marriage—on his own time. Says Dreher: "Move along, nothing to see here. It didn’t really happen, and if it did, this man, History’s Greatest Monster, must have deserved it for his thoughtcrime."

This is part of the argument made by Dreher—and anti-marriage conservatives more generally—that allowing gay marriage will necessarily entail a restriction on the rights of Christians to hate gay marriage. There's just one problem with the evidence they marshal in support of the argument: It's almost always from Europe, and Europe has a very different tradition with regards to civil liberties than the United States.

For example: I’m from Kansas, home to the notorious Fred Phelps family—the folks who display a kind of homophobia far beyond what’s on display in Dreher's example. And a number of family members have been employed over the years as state or county civil servants—despite the fact that the family is held in very low esteem by the community at large. The state doesn't have the right to boot them for privately held opinions—even those that are publicly expressed—that don't interfere with the performance of their duties. What's more, we're the same country where the ACLU defends the rights of racists to march in public.

This isn't to say Dreher's nightmare scenario can't happen here: We must always be vigilant in defense of our rights. But it's much, much, much less likely to happen—and it's unlikeliness makes Dreher's concerns seem desperate instead of considered. The great thing about the First Amendment is that it protects people with wildly differing—even diametrically opposed—outlooks on life. In the United States, at least, civil liberties aren't a zero-sum game. In my ideal future, homophobic old housing managers will be able to keep their opinions and their jobs in the same society in which gays, lesbians, and transgender people are free to exercise their rights to marry each other. The day can't come too soon.

John Yoo's red herring

The former Bush Administration torture advocate thinks Obama is a wuss for actually trying to justify the assassination of an American citizen:

It may be that the Obama administration thinks that U.S. citizens who join the enemy are entitled to special rules — like those that apply to the police, instead of those that apply to the military. But this would be wrong too. As I explained in the Wall Street Journal last week, ever since the Civil War, our national leaders and the Supreme Court have agreed that a citizen who joins the enemy must suffer the consequences of his belligerency, with the same status as that of an alien enemy. Think of the incentives that the strange Obama hybrid rule creates. Our al-Qaeda enemy will want to recruit American agents, who will benefit from criminal-justice rules that give them advantages in carrying out operations against us (like the right to remain silent, to Miranda and lawyers, to a speedy jury trial, etc.). Our troops and agents in the field may well hesitate in the field, as they will not be able to tell in the heat of the moment whether an enemy is American or not.

I call BS. Nobody—nobody—disputes the right of American troops to engage enemy combatants in battle on an actual battlefield. If that's what Yoo means by the heat of the moment—and it seems so—then there's no dispute. If Anwar al-Awlaki had been charging against American troops in Afghanistan, AK-47 in hand, there would be no debate to be had. The chance that an American soldier will hesitate in that moment, wondering if the enemy is an American citizen, is virtually nil. And Yoo—once again—is disingenuous for suggesting so.

The debate comes in murkier areas. If reports are to be believed, al-Awlaki was tracked by American drones for weeks while officials waited to get a clear shot at him that wouldn't result in massive collateral damage. That's admirable if true, but it's also something less than a "heat of the moment" situation: American officials were able to make a considered decision to assassinate the man. And because of that, it's more than fair to question the process by which al-Awlaki was targeted.

But this is the world Yoo inhabits. There are precious few ticking time bombs, yet they always justify extreme action where considered processes might serve Americans better.

President Obama, and the assassination of an American citizen

Ben and I talk about the killing of Anwar al-Awlaki in this week's Scripps Howard column. Rather than do our usual point-counterpoint thing we did something new and rare for us: We agreed, and combined a single column explaining our shared civil liberties concerns. An excerpt:

How was al-Awlaki marked for death? According to the Washington Post, the Justice Department wrote a secret memorandum authorizing the lethal targeting of al-Awlaki. Reuters reports that al-Awlaki was then targeted by a secret White House committee -- and that the president's role in ordering the decision is "fuzzy."

If killing al-Awlaki was justified, then why is both the process and the justification for this killing secret? As the Atlantic's Conor Friedersdorf observed, "Obama hasn't just set a new precedent about killing Americans without due process. He has done so in a way that deliberately shields from public view the precise nature of the important precedent he has set."

There is a precedent for letting the government operate quietly on matters of national security, while ensuring a minimal level of due process. In 1978, Congress -- reacting to Watergate-era scandals -- established the Foreign Intelligence Surveillance Court, empowering the judicial branch to monitor and approve of wiretapping against suspected foreign intelligence agents in the United States. That court has rarely denied a wiretapping warrant, but it has served as the public's check against executive branch overreach. That's an example Congress might contemplate anew.

Perhaps al-Awlaki deserved to die. But the best way to ensure the government doesn't abuse its power -- or use it later on merely to silent inconvenient critics -- is to provide checks, balances, and some level of transparency.

Where is the 'battleground' anyway?

Mario Loyola knows:

For purposes of combat actions such as the targeted killing of Awlaki, the battleground in our war against al-Qaeda is not “everywhere.” It is in those few countries that either willingly or unwillingly provide significant safe havens for al-Qaeda. Yemen is in the first rank of that group of countries, along with Pakistan, Afghanistan, and Somalia. 

All I can say is: Germany, we're coming for you. London, you might see some Predator drones in your skies. Toronto, get ready for some Hellfire missiles.

If you care about civil liberties, can you vote for Barack Obama?

I wrote this in April. Given today's assassination of a U.S. citizen with Al Qaeda ties, it's a good time to restate it.
First, do no harm.

That's where I start with my philosophy of governance. Maybe it sounds conservative. I don't think conservatives would have me as one of their own, though, because I think it is also wise—where possible—for republican government (as the servant of the community) to provide services we can't otherwise provide for ourselves. A safety net for the poor. Universal healthcare. NPR. Stuff like that.

But a government charged with providing such services to—and on behalf of—the citizens has a basic obligation that supersedes those: Do no harm.

Do not torture people.

Do not lock away people without due process of law.

Do not eavesdrop on people without a warrant.

Do not subject people to cruel and unusual punishment.

Do not deprive people of their rights to life, liberty, and the pursuit of happiness.

If a government cannot do those things, the rest—the social services, the safety net—is just a payoff. If a government cannot do those things, then it is probably no longer a government that derives its power from its citizens, but instead is (or is on its way to becoming) a government that rules its citizens. It's not always easy to tell the difference between the two, but the distinction is there—and it is important.

I have lost confidence in the ability of Barack Obama to first do no harm.

He is in charge of a government that—despite promises to end torture—is clearly trying to break the will of one of its own citizens in a military brig.

He is in charge of a government that prosecutes suspected terrorists in whichever format seems most likely to guarantee a win for prosecutors, instead of giving every suspect equal access to the law.

He is in charge of a government that seeks ever more-expansive ways to spy upon its citizens. He is in charge of a government that claims the right to kill a citizen without any kind of legal proceeding. He is in charge of a government that proclaims itself legally immune from efforts to hold it accountable for transgressions. And he is in charge of an administration that reserves to itself the right to make war without permission from Congress.

I voted for Barack Obama in 2008 because I was mad. I was mad at George W. Bush for doing everything I've listed above, plus a few other things. I was kind of mad about Republican governance that seemed interested, mainly, in catering to the interests of the rich, but I was mostly mad about how the Bush Administration had reserved to itself unlimited, abusive wartime powers—in the name of prosecuting a war without end. Obama seemed to promise more than that.

He has delivered, on these matters, almost exactly what came before. I can no longer trust Barack Obama, or the Democratic Party, to be truly on the side of civil liberties.

Adam Serwer, a liberal, wrote: "Point is, though, if you voted for Obama in 2008 expecting a restoration of the rule of law, a rejection of the Bush national-security paradigm or even a candidate who wouldn't rush headlong into wars in Muslim countries expecting to turn back the current of history through mere force of will, then you don't have a candidate for 2012. You probably don't have a party either." He is right.

Conor Friedersdorf, a conservative, wrote: "Since his January 2009 inauguration, President Obama has embraced positions that he denounced as a candidate, presided over a War on Drugs every bit as absurd as it's always been, asserted the unchecked, unreviewable power to name American citizens enemy combatants and assassinate them, and launched a war without seeking Congressional authorization. His attorney general's efforts to live up to his boss' campaign rhetoric have been thwarted at every turn. And presiding over the disgraceful treatment of Bradley Manning, he has lost the right even to tout his record on detainee policy. On civil liberties, President Obama cannot be trusted." He is right.

For a long time, I have paused before the decision I find I must make. Democrats are awful, but Republicans are worse. They'll do all of the above—gleefully, without any pretense of a furrowed brow—and they'll do it while doing everything they can to exacerbate inequality between the very rich and the rest of us.

After the darkness of the Bush years, I came to convince myself that the lesser evil is, well, less evil. At some point, though, the lesser evil is still too evil to support. I don't believe Barack Obama is evil. I believe he is better than his opponents—but not in the critical realm where the "do no harm" rule applies. And I do not believe he is good enough.

The president has announced his re-election campaign. At this point, he will not have my vote. He has until November 2012 to earn it back. I do not expect he will.

The ACLU and Jonah Goldberg's Assassination Straw Man

Jonah Goldberg's debating partner.

Toward the end of an otherwise-modest column on the government's plan to assassinate an American citizen affiliated with Al Qaeda, Jonah Goldberg stacks the deck:

Some civil libertarians seem to think we can never, ever kill an American citizen without a trial by jury (and perhaps not even then). That would have been silly during the days of conventional warfare. Now it's plain crazy.

Perhaps "some" civil libertarians believe that, but it's not the position of the ACLU, which has brought the lawsuit challenging the government's plan. In its complaint (PDF) asking for an injunction, the organization acknowledges there are times when due process will be skipped:

Outside of armed conflict, both the Constitution and international law
prohibit targeted killing except as a last resort to protect against concrete, specific, and
imminent threats of death or serious physical injury. The summary use of force is lawful
in these narrow circumstances only because the imminence of the threat makes judicial
process infeasible.

In other words, you can kill your enemy on the battlefield, when he's also trying to kill you. Not even the ACLU is against that.

That's not what the government is doing. It is reserving to itself the right to kill an American citizen who -- for all we know -- might be sitting peacefully in a kitchen somewhere in Yemen, presumably able to be captured if he's spotted. And that's where, at the very least, the government wanders into gray area. The ACLU, noting that the "right to life" is fundamental for U.S. citizens under the Constitution, wants that area to be a little less gray.

The government’s refusal to disclose the standard by which it determines
to target U.S. citizens for death independently violates the Constitution: U.S. citizens
have a right to know what conduct may subject them to execution at the hands of their
own government. Due process requires, at a minimum, that citizens be put on notice of
what may cause them to be put to death by the state.

The weird thing is, that's not so different from Goldberg's own conclusion. "So, let's have Congress and the president come up with some clear, public rules," he writes. "Better to start the debate over an easy case than a hard one." Sure. So why knock people who share your position? Can there never be a cease-fire in the war against liberals?