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Bruce Fein

Bruce Fein

Posted: December 10, 2010 02:42 PM

The state of civil liberties and national security in the United States is alarming.

In the American Empire, the former are routinely crippled or lacerated in the false name of the latter. Trust in government plunges. Dangers are magnified manifold to wound constitutionally venerated freedoms. International terrorist suspects who have never attempted to kill an American are treated as existential threats to U.S sovereignty. Predator drones employed off the battlefield in Afghanistan, Pakistan, or Yemen are spawning more enemies than are killed. Habeas corpus is suspended. Military commissions denuded of due process and which combine judge, jury, and prosecutor in a single branch of government are substituted for independent civilian courts. Time-honored privacy rights are trampled. Torture or first cousin enhanced interrogation techniques are endorsed. Congressman Peter King (R. N.Y.), slated for the chairmanship of the Homeland Security Committee, insists that prosecutions of alleged international terrorists in civilian courts are intolerable because guilty verdicts are not guaranteed. The worst violations are dared by few, willed by more, but tolerated by virtually all.

The nation needs a new birth of freedom dedicated to the proposition that the life of a vassal or serf -- even in absolute safety -- is not worth living.

At present, procedural safeguards against injustice are jettisoned for the counter-constitutional dogma, "Better that many innocents suffer than that one culprit eludes punishment." A craving for a risk-free and comfortable existence fuels the nation's war on individual freedom. Acceptance of risk, however, is the lifeblood of a free society. Every human sports DNA capable of anti-social behavior -- even the saintly. The United States is headed for the same ruination as Athens for the same reasons penned by historian Edward Gibbon: "In the end, more than they wanted freedom, they wanted security. They wanted a comfortable life, and they lost it all -- security, comfort, and freedom. When...the freedom they wished for was freedom from responsibility, then Athens ceased to be free."

Contrary to longstanding orthodoxies, civil liberties and national security are more aligned than opposed. Scrupulous respect for freedom works hand-in-glove with national security by evoking unbegrudging loyalty among citizens eager to risk that last full measure of devotion to foil opponents and to maintain government of the people, by the people, and for the people. Patriotic soldiers are superior to mercenaries. Hessians were no match for the Minutemen in the American Revolutionary War. A military that fights more for love of country than fear or money will triumph. And love of country is elicited by the government's securing unalienable rights to life, liberty, and the pursuit of happiness.

Crushing civil liberties may enhance immediate safety, but future calamity is likely to ensue. The British believed that Writs of Assistance, denial of jury trial, quartering soldiers, and impressing American seaman to fight against American colonists would make them safer. And then came the Declaration of Independence and the beginning of the end of the British Empire.

Prevailing legal doctrines and practices in the United States bear the earmarks of tyranny deplored by the Founding Fathers and hauntingly evocative of The Soviet Union or The People's Republic of China.

The president is empowered to target American citizens off the battlefield for assassination abroad who have not engaged in hostilities against the United States on his say-so alone.

Citizens and non-citizens may be detained indefinitely without accusation or trial at Bagram prison in Afghanistan or in undisclosed locations abroad on the president's say-so alone.

Predator drones kill civilians off the battlefield in Afghanistan, Pakistan, and Yemen. The protocols for targeting decisions are secret.

Military commissions are established for the trial of alleged war crimes that may be equally prosecuted in civilian courts, for example, material assistance to a foreign terrorist organization. Military commissions combine judge, jury, and prosecutor in a single branch -- the very definition of tyranny according to the Founding Fathers.

State secrets are invoked by the president to prevent victims of constitutional wrongdoing, including torture or kidnapping, from judicial redress for their injuries.

Telephone calls and emails are intercepted by the government without probable cause to believe the target is connected to international terrorism.

Lawyers who defend alleged international terrorist organizations are vulnerable to prosecution under the material assistance law.

The Patriot Act authorizes the FBI to obtain business, bank, or other records by unilateral issuance of national security letters alleging a relationship to a terrorist investigation.

Extraordinary rendition is employed to dispatch detainees to countries notorious for torture.

Individuals or organizations are designated as "terrorists" and quarantined from human intercourse based on secret evidence.

Government crimes -- including torture, illegal surveillance, obstruction of justice, and war crimes -- go unprosecuted despite the President's constitutional obligation to take care that the laws be faithfully executed.

The United States was founded on the idea that the individual was the center of the nation's universe; and, that freedom was the rule and government restraints grudging exceptions. The right to be left alone was cherished above all others. The national purpose was not to build an Empire by projecting military force throughout the planet, but to revere due process and the blessings of liberty at home.

These ennobling ideas have been abandoned for the juvenile thrill of domination for the sake of domination and a quest for absolute safety that elevates vassalage to the summum bonum.

Where are the leaders to awaken America to its philosophical peril? Who has the courage to preach, "Better free than safe," "As we would not be tyrannized, so we shall not be tyrants," and, "due process is a higher life form than vigilante justice?"

If not us, who? If not now, when?