In the last decade, since 9/11, we have witnessed the successive erosion of the civil rights of American citizens on a scale never thought to be possible. Most surprisingly, the weight of the Obama adminisration has collectively reaffirmed and extended the most objectionable laws, sweeping away constitutional guarantees framed by our forefathers. Legal concepts as fundamental as Habeus Corpus, with its beginning that pre-dates the Magna Carta, are gone, perhaps forever. Now, in newly proposed legislation, the government and copyright holders assume the authorization to summarily censure the World Wide Web under the guise of taking steps to eliminate internet piracy. However, Americans appear to be not standing passively by and allowing that. A huge collective voice has been raised, in a chorus of objections. What might we learn about these circumstances that continue to play out as I write?
Anyone who depends on the internet for social contacts, work, research, news, or entertainment should take a high level of interest in the controversial The House' Stop Online Piracy Act (SOPA) and sister act, Protect Intellectual Property Act (PIPA) in the Senate. These two acts represent a continuation of a progressive and dramatic loss of personal freedoms that have been occurring in the United States since 9-11-2001. Together they constitute what I am calling a Continuum Of Loss. Since the most recently proposed legislation will almost certainly be consolidated into a single act, I will confine my reference to SOPA. The bill, intended to help stem online piracy and backed by companies like Disney, Viacom, and Time Warner, has set off the alarms of many sites and companies on the internet because it essentially allows the government and private corporations to censor entire sites, up too and including delisting DNS names, when they fear that the site is illegally distributing copyrighted material. Many companies and organizations - including Google, Twitter, Facebook, AOL, Zynga, Mozilla, LinkedIn, and Ebay, which took out a full-page ad in the NYTimes with a letter to the congressmembers involved—and numerous sites and civil-liberty groups—including the Electronic Frontier Foundation, Demand Progress, Creative Commons, Wikimedia, and others—have spoken up against the act. In a nutshell, if enacted, the bills would extend the powers of US law enforcement agencies and copyright holders over copyrighted material sold or distributed online. There are substantial arguments about how such legislation could technically harm the internet. Of course, concerns have been raised that the legislation could have a serious impact on the freedom of expression enshrined in America’s First Amendment by allowing US authorities to shut down any website and its source of revenue. They also say it could have a negative impact on whistleblowing and people trying to highlight human rights abuses. The Center for Democracy and Technology’s David Sohn says that SOPA carries “dangerous consequences for innovation in online communications tools, for online free expression and for cybersecurity”. A very long list of organizations and prominent people have voiced their objections. Fortunately, last weekend the white house issued a statement of concerns about the pending legislation:
"While we believe that online piracy by foreign websites is a serious problem that requires a serious legislative response, we will not support legislation that reduces freedom of expression, increases cybersecurity risk, or undermines the dynamic, innovative global internet."In the last few days it has begun to look as though the uproar over the online-piracy bill is having a real impact. With the statement quoted above, the White House strongly hinted that it would oppose the current legislation. That was a huge shift, and it came in response to a petition asking President Obama to veto the law if submitted by congress. In addition, even key sponsors are edging away from the bills’ most controversial features in the last few days. The bill's primary sponsor, Lamar Smith (R-Tex.), has said he’d remove the DNS-blocking provisions from his bill outright, pending further review. It is too early to call it a victory for free speech and Smith has indicated he will not give up the DNS delisting feature in the remedies described, only that he would study it further. Even if it were a victory over the proposed infringements we still have the problem of internet piracy as well as other cyber crimes to deal with. There is no question that copyright holders have legitimate issues with piracy on the internet. However, it would appear that the outcry of people, specifically those that voiced their objection to the pending bill through the White House web site called We The People have accomplished, at minimum, a temporary deterrence of the unwelcome legislation until modifications are made to assure the bill of rights and freedom of speech stay intact.
How sad is it that we did not react with similar vision and rise to action when even greater threats to our freedoms were enacted in recent history.
National Defense Authorization Act
In an unprecedented action the National Defense Authorization Act(2) was signed into law by Obama on Dec. 31st. It is an odious and draconian piece of legislation that extends the reach of detention without trial to include US citizens arrested in their own country without access to outside contacts. "It's something so radical that it would have been considered crazy had it been pushed by the Bush administration," said Tom Malinowski of Human Rights Watch. "It establishes precisely the kind of system that the U.S. has consistently urged other countries not to adopt. (3) "At a time when the U.S. is urging Egypt, for example, to scrap its emergency law and military courts, this is not consistent."
In its final form the new act dispenses with the legal concept and protection of Habeus Corpus, a legal concept that pre-dates the Magna Carta. History students may recall that the 1215 charter required King John of England to proclaim certain liberties, and accept that his will was not arbitrary, for example, by explicitly accepting that no "freeman" (in the sense of non-serf) could be punished except through the law of the land, a right which is still in existence in the laws of England today. At what point does the reduction of individual rights in our own country change how we define ourselves? Is that point now before us, as a fait accompli? I believe so. In fact, I believe we have done so before this act was signed into law. However, the act is part of a succession of steps that the government has used to eliminate civil rights under the guise of providing for our security. Americans may now be summarily imprisoned, without access to counsel, without assurance of a speedy trial, without even in so much as a phone call. Such a misfortunate soul will simply disappear from his place on earth and his loved ones are not assured of any knowledge of his whereabouts. Furthermore, it will be up to the authorities to decide if the detainee is given a trial by our court system or by military tribunal. All it takes, for that to happen, is any one of several federal agencies, to decide to act on the slightest suspicion of terrorism. There is no civil or judicial review required. No warrants signed. No "show cause" stipulations. No Miranda Rights. Senator Carl Levin, Chairman of the Armed Services Committee, has revealed that it was Obama's administration itself that lobbied to remove language from the bill that would have protected American citizens from being detained indefinitely without trial. However, the encroachment on our civil liberties is far more advanced and worse than even that. White house lawyers have asserted the President's "right" to order the extrajudicial assasination of American citizens (as well as foreign nationals). CIA and Defense Dept. attorneys argued that The White House has asserted the right to carry out state-sponsored assassination anywhere in the world without having to provide any evidence or go through any legal process. The administration merely has to state that the target is a terrorist and it doesn’t matter whether they are an American citizen or not. Again, no judicial review is required. All the President has to do is assert that the targeted individual is allied with terrorist. Section 1031 of the act is explicit about this. On Thursday, December 1st, 2011, CIA counsel Stephen Preston and Pentagon counsel Jeb Johnson stated at a national security conference that U.S. citizens do not have immunity when they are "at war" with the United States. Of course, the problem is in the determination of whether a citizen is "at war" with the United States. That determination is left entirely to the President and the Executive Branch of our government. I shudder to imagine such powers had they existed during the Nixon White House years while under the sway of people like G. Gordon Liddy.
To be sure the National Defense Authorization Act was delivered with some sense of urgency as it authorized the expenditure for our defense for the year 2012. To a citizenry much pummelled by fear mongering politicians over the last decade that must have seemed like an imperative of extraordinarily high urgency. It is. We cannot, nor should not, allow a lapse in the funding for our defense. We live in a world of real dangers, no one would deny that. But we should not allow our elected officials to dally, whther in arguments of principles or not, and then attach riders to proposed bills as we sensse a growing urgency. Apparently not only from without, but also from within.
Of course, upon signing the bill the President said “I have signed this bill despite having serious reservations with certain provisions that regulate the detention, interrogation, and prosecution of suspected terrorists,” Obama went further and offered more assurances to dissuade the alarms that must have been ringing in the heads of many Americans that can read and have a will to do so. “I want to clarify that my Administration will not authorize the indefinite military detention without trial of American citizens. Indeed, I believe that doing so would break with our most important traditions and values as a Nation” he said. That seems all well and good to some appparently, and perhaps some trust President Obama to use this new stipulated power wisely, but what about his successors? Would I, say for example, just as willingly give up my constitutional rights of due process to Rick Perry, the GOP candidate from Texas? Back to the point, would I give them up to President Obama? No.
National Patriot Act
The president may now order surveillance, without judicial review of court ordered warrants, including a new capability to force companies and organizations to turn over information on citizens’ finances, communications and associations. Bush inititially asserted these executive power under the Patriot Act enacted in 2001. However, in 2011, Obama extended the powers, which included searches of everything from business documents to library records. The government can use “national security letters” to demand, without probable cause or judicial warrants, that organizations turn over information on citizens — and can order those organizations, under penalty of law, not to disclose the breach to the subject party. Furthermore, the president alone is left to decide if a detainee is tried in a court of law or by a military tribunal, if the susppect is to receive a trial at all. These summary actions are more reminiscent of the laws of the lands in Saudi Arabia, or Pakistan, or China.
For liberal democrats especially, a real dillema exist here. In the past we have celebrated President Obama's presidency and defined it is our strongest line of defense against the very constructs of the Bush years that we bitterly railed against. As such we are prone to not vociferously criticize the man, as to do so is to relinquish our hopes to eradicate the legacies of the Bush years as welll as risk our ridicule by those we openly opposed. Even GOP loving friends will likely not restrain themselves. If we consider this for a moment, isn't that tendency to a pre-disposition in fact a very vulnerable position for us to indulge in? Some of us may go so far as to openly rationalize that "Obama would never abuse such a power". Ever heard of Pandora's Box? We would be doing so at our own peril. I am very close to recanting my support, in hopes that I am not too late. Certainly harm has been done. The extension of the Patriot Act and the Nat'l DefenseAuthorization Act are enacted with full force of law. We are not discussing "what if". We are alarmingly drawing attention to "WHAT IS".
It is time for us to consider what is happening regarding SOPA today, and how a unified voice can deter what is clearly bad moves on the part of government. Again, while it is too early to guess where the discussion over freedom of speech and the efforts to weigh against internet piracy, we could at least claim that we have slowed the process and provided pause to think it through. However, given what has happened, we mst draw a line here. Then we need to go back to the Patriot Act and the National Defense Act and lobby hard for whatever we might do to neuter them.
The question that arises in me, in a bitter voice of irony, is whether such a collective hue and cry has arisen over SOPA because we value our pirated copy of a Grateful Dead song over our fundamental rights to due process?
I truly hope not. As always, I welcome your unvarnished but polite thoughts.
(1) Washington Post Op Ed: "10 reasons the U.S. is no longer the land of the free"
(2) CRS Report: The Patriot Act (pdf).
(3) The Guardian, Dec 15, 2011 "Military given go-ahead to detain US terrorist suspects without trial"
