Freedom Day and Secret Courts

The U.S. Constitution was signed on September 17, 1787 but the Bill of Rights (1st 10 amendments) was not ratified until December 15, 1791. James Madison proposed amendments to the Constitution to settle a conflict between the Federalists and Anti-Federalists. The Federalists believed that the Constitution, by separating the government into three branches, was adequate to protect individual rights. The Federalists were also concerned that a listing of Rights could prove dangerous, serving to limit rather than protect such rights. The Federalists believed the Constitution did not require amending. Others, including Thomas Jefferson, argued that the Constitution failed to adequately protect individual rights. They believed the “necessary and proper clause” of the Constitution gave Congress too much power. This group became known as the Anti-Federalists, who insisted there be limitations of power placed on the Federal Government to protect individual freedoms.

Out of this struggle was born the Bill of Rights which has been the foundation of a free society for more than two centuries. These amendments protect freedoms of speech, press, religion and assembly, the right to keep and bear arms, the denial of unreasonable searches and seizures, cruel and unusual punishment and no compelled self incrimination. In short, Life, Liberty and Property may not be deprived without “due process of law.”

Justice Clarence Thomas states: “We should always start, when we read the Constitution, by reading the Declaration . . .”i Justice Thomas, as well as other unitary judges, contends that the Declaration of Independence contains the structure of the Constitution. The weight of historical scholarship rejects any hint that the Declaration of Independence was ever considered part of the legal foundation of the new nation. Instead, it was written to justify separation from England. It was a revolutionary polemic, not law. In writing the Declaration, Jefferson invoked the “Laws of Nature” and “Unalienable Rights” which are derived from “Nature’s God.” He includes among these Rights “Life, Liberty, and the Pursuit of Happiness (Property).” Furthermore, he proposes that the Government derives its power from “the consent of the governed.” Jefferson didn’t invent this theory; it came from the pen of the humanist philosopher John Locke (1632-1704). Locke proposed that “The State of Nature” was governed by the “Laws of Nature” so that humans are “by nature” “free, equal and independent.” He therefore proposes that humans are granted “Life, Liberty and Property” by the Laws of Nature – NOT by the government.

To Jefferson and other Founding Fathers, it was not only necessary to establish a system of checks and balances in the Constitution but to establish a Bill of Explicit “Rights” to prevent the government from infringing on the “Natural Rights” granted to the citizenry directly from “Nature” and “Nature’s God”.

The Dire Effects of Disaster

9/11 has immersed the nation in a climate of change. Disaster creates conditions particularly fitted to foster change and alter belief systems. Every politician knows disaster can be manipulated to abandon previously held values. Following 9-11 fifty seven per-cent of the population expressed a willingness to exchange their civil liberties for security. In the name of security, Americans have been surrendering the right of habeas corpus, the right to be secure in one’s home and person against unreasonable searches and seizures; the obligation to obtain a search warrant only upon the basis of probable cause, and the right to a speedy trial and due process of law.

These are the principles which have established the United States as a leader among nations and in part have become known as the “Rule of Law.” This is what all Presidents and Legislators are sworn to uphold and defend. This is the subject Judge Ramirez addressed. The Constitution does not recognize a war time exemption from respecting individual rights. No branch of government is above the law, or has the right to trample on individual rights in the name of national security. A functioning Democracy must have in place procedures for proper transparency, verification and accountability.

Virtually every president since Washington has justified the withholding of information from Congress. Congress often fails to exercise its Constitutional power of oversight, and has knowingly granted the President some of its power. The War Powers Act of 1973 is a classic example, wherein Congress delegated some of its authority with respect to declaring war to the Executive. Currently, a bipartisan committee is recommending new legislation, since the War Powers Act “has failed to promote co-operation between the executive and legislative branches.”ii

Three times in the past the government, during a time of war, has temporarily altered Habeas Corpus to prevent potential perils. A nation that operates within the rule of law expects the Executive to perform according to the bounds of those rules or be held accountable. “We the people” have a right to expect a reasonable working relationship between Congress and the Executive – especially in a time of war. The Executive branch, however, has informed us that the war on Terror presents a permanent crisis. The language of National Survival is raised to justify incursion into civil liberties protections. Every submission to these strategies leads to increased executive power. Secrecy is routinely but wrongly invoked in the name of national security. Secrecy is the enemy of democracy, which requires transparency, verification and accountability.

These tactics have led to an inordinate increase of executive power and provided an avenue to circumvent both Congress and the courts. A “war model” which presumes a permanent condition of war and a constant threat to National Security makes “aggrandizement of the Presidency urgently necessary.”iii Congress enacted The Federal Register Act of 1935, The Administrative Procedures Act of 1946, and the Freedom of Information Act of 1978 to insist on proper oversight and publication of proceedings because secret laws are the antithesis of a free and open society.

The Creeping Culture of Secrecy

In recent years there has been an increase of unpublicized secret laws, and secrecy has become a central issue. In 1997 “The Executive Branch assumed authority both for structuring and classification systems and for deciding the grounds upon which secrets should be created and maintained.”iv This has resulted in the ability of the Executive to classify information as Top Secret or Secret and make the process of transparency, verification and accountability either difficult or altogether impossible. In the case of Valerie Plame it was impossible to proceed because the evidence had been classified and was unavailable – no evidence no case!

When it comes to the process of transparency Sean Gonsalves states: “We’re talking everything from secret interpretations of the Foreign Intelligence Surveillance Act and opinions from the Office of Legal Counsel (OLC) to secret Presidential directives and transportation security orders.”v

In August of 2007 the court was petitioned to make public the rulings of the FISA Court, which implicates the privacy of American citizens, after redacting classified information. The court claimed it didn’t have the expertise to decide what information should be redacted! There has also been a decline in the publications of the Office of Legal Counsel (OLC). “One secret OLC opinion . . . holds that executive orders, which are binding on executive branch agencies and are published in The Federal Register, can be unilaterally abrogated by the President without public notice."vi Such orders undercut the power of Congress to respond to the charge and exercise its own power. “Worse, the OLC policy ... implies a right to actively mislead Congress and the public."vii On April 30, 2008 a Judiciary subcommittee held a hearing on “Secret Law and the Threat to Democratic and Accountable Government” in which Steve Aftergood, director of the Project on Government Secrecy at the Federation of American Scientists, a non-governmental policy research and advocacy organization testified. Here is a summary of his testimony:

Secret law that is inaccessible to the public is inherently antithetical to democracy and foreign to the tradition of open publication that has characterized most of American legal history. Yet there has been a discernable increase in secret law and regulation in recent years. This testimony describes several of the major categories of secret law, including secret interpretations of the Foreign Intelligence Surveillance Act, secret opinions of the Office of Legal Counsel, secret Presidential directives, secret transportation security directives, and more. Legislative intervention may be required to reverse the growth of secret law. viii

Secret Laws are growing and they seriously affect fundamental political controversies over such issues as domestic surveillance, torture and a host of other issues.

The FISA Act

Congress enacted the FISA Act in 1978, largely in reaction to the abuses of the Nixon administration. It restricted domestic spying, and laid down rules and procedures to protect the privacy of Americans. In the CRS Report for Congress, Attorney General Griffin Bell testified: “President Carter stated it very well in announcing this bill when he said that ‘one of the most difficult tasks in a free society like our own is the correlation between adequate intelligence to guarantee our nation’s security on the one hand, and the preservation of basic human rights on the other.’”ix

In the wake of 9/11, the Executive Branch, its attorneys and lawyers from the Justice Department and National Security Agency authorized a program to go around the FISA court without FISA court knowledge. The FISA court was established to handle the most sensitive national security issues but it required the inspection and order of a judge which protected “privacy rights”. The reason offered for going around the FISA Court was “the need for speed.”x Judge Ramirez especially discussed the legal difficulty that going around FISA law had created.

The Patriot Act and FISA

The Patriot Act introduced sweeping changes to U.S. Law which included amendments to FISA and more than a dozen other privacy laws. In this article we will consider only changes to FISA laws. It must be recalled that the President ordered wireless wiretapping prior to the Patriot Act. Section 215 of FISA under the Patriot Act expands the power of the FBI to spy on ordinary people living in the U.S. including U.S. citizens.

• The FBI need not show probable cause if the person they seek to investigate is involved in criminal activity
• The FBI can investigate persons because of the improper use of Freedom of Speech
• People may be investigated because of the books they read or because of the web sites they view
• Those served with Section 215 orders are prohibited from disclosing the fact to anyone else – this affects Freedom of Speech guaranteed in the 1st amendment
• Subjects of surveillance are never notified that their privacy has been compromised.

When President Bush signed the reauthorization of the USA Patriot Act, he added an addendum stating that “he did not feel obliged to obey requirements that he inform Congress about how the FBI was using the Act’s expanded powers.” After reporters left the White House signing, he issued a “Signing Statement”. A “signing statement” is an official document in which a President lays out his interpretation of a new law. In this signing statement he states: “He did not consider himself bound to tell Congress how the Patriot Act powers were being used and that despite the laws’ requirements, he could withhold the information if he decided that disclosure would impair foreign relations, national security, the deliberative process of the executive, or the performance of the executive’s constitutional duties.” xi

Warrantless Wiretap

Few would dispute that some laws needed updating to meet the changing world situation which 9-11 presented. The President, however, considered himself, “above the existing FISA Law.” Ultimately the President publically admitted to a “demonstrably impeachable offense,” in fact, it was the same offense that was in the impeachment charges against President Nixon. The President also stated that he had authorized such surveillance “more than 30 times since the September 11th attacks”. Now here is a very startling thought for the public to ponder. The President stated that he also informed leading members of Congress. This becomes a very important issue. Did the Congress consent when they were informed that the President and The National Security Agency (NSA) were about to intentionally disregard FISA law and the 4th amendment?

In order to circumvent the disastrous legal outcomes of this warrantless wiretapping and secret presidential order, the communication companies involved are seeking legal immunity in the courts. This wiretap affected the privacy rights of perhaps millions of citizens. While this case was pending, Congress approved a bill granting retroactive immunity to the phone companies, AT&T and Verizon. Qwest, to its credit, listened to its general counsel who stated that what the President and NSA wanted done was illegal.

U. S. Judge Anna Diggs Taylor ruled that (Warrantless wiretapping) “undisputedly violates the 4th amendment . . . Violates the 1st amendment, and violates the Separation of Powers . . . The Constitution itself has been violated.”xii

What you don’t know will hurt you so here is a further list of secret acts which have been created by the Executive since September 11.

• Secret military tribunals have been created
• Secret court proceedings closed to the public have been ordered
• A massive detention of aliens has been directed
• Detainees have been denied access to counsel and courts. Secrecy has been exercised for an astounding array of material and operations since 1997
• Response to Congressional inquiries has been refused
• Intrusive investigation of citizens (wireless wiretapping) has been ordered in contradiction of FISA demands

“These secret actions have created a fundamental constitutional shift in favor of Presidential power.” xiii

Glen Greenwald, a constitutional and civil rights lawyer quotes the President as stating: “The executive branch shall construe the provisions . . . that call for furnishing information to entities outside the executive branch. . .in a manner consistent with the President’s constitutional authority to supervise the unitary executive branch and to withhold information . . .” This accounts for the reason Harriet Myers, Carl Rove and others, when subpoenaed, have refused to appear to testify but instead have invoked Executive privilege. We may conclude that any limits Congress attempts to place on the use of executive power will likely be ignored. It is small wonder that Judge Ramirez spent much of his time dealing with secrecy and the effect it exerts on the Rule of Law.

The Supreme Court Restores Habeas Corpus and the "Rule of Law"

The laws of the Constitution were designed to remain enforced even in extraordinary circumstances, [such as terrorism]. Liberty and security can only be reconciled in a democracy within the bounds of "rule of law" and our founders decreed that habeas corpus was a rite of primary significance.

In 2006, in the case of Hamdan vs. Rumsfeld, the Supreme Court held that military commissions set up by the Bush Administration to prosecute detainees at Guantánamo Bay “lacks the power to proceed because its structure and procedures violate both the Uniform Code of Military Justice and the four Geneva Conventions signed in 1949. Pp. 49-72” xiv

“On June 29, 2006, the Court issued a 5-3 decision holding that it had jurisdiction, that the administration did not have authority to set up these particular military commissions without Congressional authorization, . . .”xv

The failure of transparency and verification finally reached the court in the case of Lakhdar Boumediene a naturalized citizen of Bosnia and Herzegovina who was held in detention at Guantánamo Bay. His case challenged the Military Commissions Act (MCA) of 2006. Justice Kennedy wrote the majority opinion upholding the Habeas Corpus Laws of The Constitution. A reading of Justice Kennedy’s opinion is highly recommended. It takes a much needed step in alleviating the concerns of Judges such as Judge Ramirez.

In the decision of Boumediene vs. Bush June 12, 2008, the court upheld the long-standing principle of Habeas Corpus for the detainees in Guantánamo. Habeas Corpus is the right to challenge detention before a judge and to seek due process which is at the heart of the Rule of Law.” “Rule of Law” makes it plain that jailers do not determine one’s fate nor does the Executive Branch. It is the law of Habeas Corpus which upholds the belief expressed in the Constitution that “all men are created equal and are endowed . . . with certain unalienable rights.” This law separates a civilized society from “the rule of the jungle” and from the “might makes right” philosophy. It helps us understand that ethics is not a law of black and white, of us and them. In fact, the world’s greatest ethicist proclaimed that “we should treat others as we wished to be treated.”

Will Rogers once quipped “I’ve traveled a long way and some of the roads weren’t paved” The road to effectively deal with terrorism and maintain individual freedoms was not and is not currently paved - but the process to pave the road has been invented. The road paving process includes transparency, verification and accountability through the legislative and court systems. The secrecy road leaves only the illusion of freedom.

So the next time you consider the barbaric acts of a nation which marches to the tune of a different drummer – remember this – the world wants to know if we believe what we have declared in our Declaration, our Constitution and our Bill of Rights or if we are just expedient empiricists – true proponent of philosophy “might makes right” who at will deprive the “natural rights” granted to all by “Nature’s God”.

In the next article we will consider the role technology plays in a secret society. Judge Ramirez correctly referred to this as “Big Ears.”

i) “A Conversation with Justice Clarence Thomas” - Imprimis, Oct. 2007, Vol. 36, Number 10
ii) Flaherty, Ann: Panel calls for new war power legislation. Associated Press. July 8, 2008. http://www.examiner.com/a-1477622~Panel_calls_for_new_war_powers_legislation.html
iii) Pallitto, Robert M., and William G. Weaver. Presidential Secrecy and the Law. Maryland: The John Hopkins Press, 2007, 3.
iv) Ibid.
v) Gonsalves, Sean. “How the Government is Passing Secret Laws.” AlterNet. 19 May. 2008. http://www.alternet.org/story/85807
vi) Ibid.
vii) Ibid.
viii) Subcommittee on the Constitution Of the Committee on the Judiciary United States Senate Hearing. Referenced in Gonsalves, Sean. “How the Government is Passing Secret Laws.” AlterNet. May 19. 2008. http://www.alternet.org/story/85807
ix) Bazan, Elizabeth B.: CRS Report for Congress. The Foreign Intelligence Surveillance Act: A Brief Overview of Selected Issues. http://leahy.senate.gov/issues/Eavesdropping/CRSBriefOverview020808.pdf
x) Ryan, Jason: Going Around the FISA Court. ABC News. Jan 24. 2006. http://abcnews.go.com/Politics/story?id=1537691
xi) Greenwald, Glenn. The FBI’s lawbreaking is tied Directly to President Bush. March 9, 2007. http://www.salon.com/opinion/greenwald/2007/03/09/fbi/
xii) Rothschild, Matthew. “Is Martial Law Around the Corner?” The Progressive, June 9, 2007 http://www.alternet.org/story/53213
xiii) Pallitto & Weaver, 11.
xiv) Supreme Court of the United States Syllabus. “Hamdan v. Rumsfeld,” United States Secretary of Defense, (Argued March 28, 2006, Decided June 29, 2006). Case Number (05-184). Cited as 548 U.S. 557 (2006). http://www.supremecourtus.gov/opinions/05pdf/05-184.pdf. Pg. 4, Point 4.
xv) Hamdan v. Rumsfeld. http://en.wikipedia.org/wiki/Hamdan_v._Rumsfeld