National Security: The Last Refuge of Scoundrels
Posted by Kevin Carson on Apr 10, 2009 in Commentary • 7 commentsIf the Obama Justice Department’s legal doctrine is allowed to stand, there will be absolutely no way of holding government officials civilly or criminally accountable for violating the rights of American citizens, short of a foreign power conquering the United States and putting its officials on trial. Barring a new Nuremberg trial, the officials of the United States government are above the law when it comes to “National Security.”
That’s the necessary implication of the Justice Department’s call to dismiss Jewel v. National Security Agency, a lawsuit on behalf of Americans who were subjected to warrantless–and hence illegal–surveillance by the National Security Agency.
The administration, in calling for dismissal, advanced two morally repellent arguments.
First, it used the “state secrets” argument: that any such lawsuit would compromise the “sources and methods” of the NSA, and in particular whether the agency had relationships with any particular telecommunications company (a disclosure, in particular, which would cause “exceptional harm to national security”). The claims of the plaintiffs, it said, “would require or risk the disclosure of information properly protected by the DNI’s assertion of the state secrets privilege.” The “very subject matter” of the lawsuit “would inherently risk or require the disclosure of state secrets.” (Thanks to Glen Greenwald, by the way, for posting the document with the money quotes highlighted.)
Second, the Justice Department claimed sovereign immunity for the government.
The first argument is, of course, complete and utter nonsense. The NSA’s technical capabilities for surveillance of domestic communications are notorious matters of fact, as is its pattern of relationships with AT&T and other telecom companies. So translated out of legalese, the argument is simply that a lawsuit would embarrass some bureaucrats.
The second argument is utterly pernicious. It means, in essence, that government officials cannot legally be held accountable for violating our liberties, because–wait for it!–they’re government officials.
Think about that for a moment. If the government cannot be held liable for violating constitutionally defined rights, then what mechanism exists for enforcing those rights? Apparently, not much–aside from another country conquering the United States and putting its officials on trial. You know, like the Nuremberg trials.
That claim, the bald assertion that the government can’t be called to account for violating our rights because IT’S THE GOVERNMENT, rivals Nixon’s claim that “if the President does it, it’s not illegal.” Such sheer executive chutzpah hasn’t been matched since Charles I met writs of habeas corpus with the reply that the prisoner “is being held at the King’s good pleasure.”
A high school civics textbook parody by Doug Kinney, published in National Lampoon back in the 1970s, mentioned that the Bill of Rights was “kept around mainly as an example of good penmanship.” That wasn’t much of a joke, even back then. Today, things are even worse. We’ve got a Bill of Rights which is unenforceable because exposing the cockroaches of the police state to the light of day might be bad for “national security.” That’s about as bad as the insurance policy on Monty Python, with the clause in fine print reading “No claim made by you will be paid.”
The accretion of war powers around the office of President, over the past century or so, has resulted in legal claims resembling the prerogatives of a Stuart monarch. The Obama administration seems to have reined itself in a bit compared to Bush; it isn’t matching Cheney, Yoo et al in the sheer grandiosity of claims entailed in “Unitary Executive” doctrine. But anyone who expected a serious scaling back of executive national security powers, comparable to what happened under the post-Watergate Church Committee, is probably in for a disappointment.
There are two lessons to be drawn: First, the upward ratcheting of executive “national security” powers, unfortunately, is very much a bipartisan phenomenon. And second, under Democrats as well as Republicans, “National Security” is the last refuge of scoundrels.
C4SS (c4ss.org) Research Associate Kevin Carson is a contemporary mutualist author and individualist anarchist whose written work includes Studies in Mutualist Political Economy, Organization Theory: A Libertarian Perspective, and The Homebrew Industrial Revolution: A Low-Overhead Manifesto, all of which are freely available online. Carson has also written for such print publications as The Freeman: Ideas on Liberty and a variety of internet-based journals and blogs, including Just Things, The Art of the Possible, the P2P Foundation and his own Mutualist Blog.
I was almost certain that this would happen. I could not imagine somebody riding a tidal way of acclaim and not being being tempted to cling to the power, like Isildur keeping Tolkien’s ring of power instead of destroying it.
But we need not hope for conquest from without. It is (remotely) possible that the people will reclaim the country for ourselves.
About fifteen years ago, I decided I would never again vote in an American election, a decision I have never regretted. With each new group of cretins that comes in, I'm like, "Thank God I didn't vote for these turds." Hopefully, someday all of these folks will meet the fate of Pinochet or Fujimori.
If this stands, we'll still have options. Unfortunately, they'll be tar and feathers or a lynch mob. Maybe the administration should reconsider leaving those as our only options.
The United States can still prosecute domestic war criminals, since most war crimes are also violations of American law. As a practical matter, it is not likely to happen – although Congressional investigations may lead to it. I have not yet given up hope of seeing Addington, Libby, Gonzalez and Cheney in the docket. As I understand it, the statute of limitations on some of these matters never runs out, so in four, eight and twelve years you may very well see some of these jokers on trial. This is all the more reason to form a liberal libertarian party or create a faction thereof in another party. It would be extremely odd but quite satisfying to take over the Republicans and put a former Republican Vice President and his staff on trial. Not bothering with Bush would be a bigger insult to him than arresting him – especially if convictions resulted – as the evidence is likely to suggest.
UPDATE – It looks like we are going down the road of at least hanging the lawyers. If they go after the lawyers, guess who they will get?
Remember who ratted out Nixon?
His lawyer. The quickest way to get Cheney is to go after the Justice Department lawyers who wrote the memos justifying torture at his behest. Put them on the stand and they will sing like birds. If Cheney lives, Cheney goes to jail. I am quite sure they made certain that Bush was given some way to maintain plausable deniability – however every time Cheney opens his sanctimonious yap he gets one step closer to Allenwood.
Please, no one shut Tricky Dicky II, this will be fun to watch. We will see either a state funeral with unflattering history to follow or a perp walk in the near future.
Works for me either way.
It does my heart a world of good to imagine Cheney spending the last years of his life in prison. He’d better hope they keep him segregated from the general population; those guys will be lined up to ride him in hopes that his defibrillator will go off and give them an extra thrill.
[...] are actually worse than the ones liberals complained of under Bush, particularly his invocation of State Secrets to throw cases against the government out of court. And that list of actions Bush took to expand [...]