An
Objective Comparison of the U.S. to Regimes that Everyone Labels Repressive.
How Does America Compare to China, Iran, Saudi Arabia and Other
Repressive Regimes?
Posted on January 16, 2012
by WashingtonsBlog
Top constitutional law expert Jon Turley notes in a must-read Washington Post article
called “We are no longer the land of the free” (I have edited slightly to
remove parentheses in several places):
Americans
often proclaim our nation as a symbol of freedom to the world while dismissing
nations such as Cuba and China as categorically unfree. Yet, objectively, we
may be only half right. Those countries do lack basic individual rights such as
due process, placing them outside any reasonable definition of “free,” but the
United States now has much more in common with such regimes than anyone may
like to admit.
These
countries also have constitutions that purport to guarantee freedoms and
rights. But their governments have broad discretion in denying those rights and
few real avenues for challenges by citizens — precisely the problem with the
new laws in this country.
The list
of powers acquired by the U.S. government since 9/11 puts us in rather
troubling company.
Assassination
of U.S. citizens
[The
U.S. assassinates its own citizens.]
Nations
such as Nigeria, Iran and Syria have been routinely criticized for
extrajudicial killings of enemies of the state.
Indefinite
detention
[The
U.S. has passed a law allowing indefinite detention of American citizens.]
China
recently codified a more limited detention law for its citizens, while countries such as
Cambodia have been singled out by the United States for “prolonged detention.”
Arbitrary
justice
The
president now decides whether a person will receive a trial in the federal
courts or in a military tribunal, a system that has been ridiculed around the
world for lacking basic due process protections. Bush claimed this authority in
2001, and Obama has continued the practice. (Egypt and China have been
denounced for maintaining separate military justice systems for selected
defendants, including civilians.)
Warrantless
searches
[The
U.S. routinely conducts warrantless searches.]
Saudi
Arabia and Pakistan operate under laws that allow the government to engage in
widespread discretionary surveillance.
***
War
crimes
[The
U.S. has committed various war crimes, then refused to hold the actors to
account.]
Various
nations have resisted investigations of officials accused of war crimes and
torture. Some, such as Serbia and Chile, eventually relented to comply with
international law; countries that have denied independent investigations
include Iran, Syria and China.
Secret
court
[The
U.S. uses secret courts under the guise of national security.]
Pakistan
places national security surveillance under the unchecked powers of the
military or intelligence services.
Immunity
from judicial review
Like the
Bush administration, the Obama administration has successfully pushed for
immunity for companies that assist in warrantless surveillance of citizens,
blocking the ability of citizens to challenge the violation of privacy.
(Similarly, China has maintained sweeping immunity claims both inside and
outside the country and routinely blocks lawsuits against private companies.)
Continual
monitoring of citizens
The Obama
administration has successfully defended its claim that it can use GPS devices
to monitor every move of targeted citizens without securing any court order or
review. It is not defending the power before the Supreme Court — a power described by Justice Anthony Kennedy as
“Orwellian.” (Saudi Arabia has installed massive public surveillance
systems, while Cuba is notorious for active monitoring of selected citizens.)
Extraordinary
renditions
The
government now has the ability to transfer both citizens and noncitizens to
another country under a system known as extraordinary rendition, which has been
denounced as using other countries, such as Syria, Saudi Arabia, Egypt and
Pakistan, to torture suspects. The Obama administration says it is not
continuing the abuses of this practice under Bush, but it insists on the
unfettered right to order such transfers — including the possible transfer of U.S.
citizens.
Professor
Turley stresses the fact that it is the ability of powerful men to make
arbitrary decisions which defines an authoritarian country:
An
authoritarian nation is defined not just by the use of authoritarian powers,
but by the ability to use them. If a president can take away your freedom or
your life on his own authority, all rights become little more than a
discretionary grant subject to executive will.
The
framers lived under autocratic rule and understood this danger better than we do.
James Madison famously warned that we needed a system that did not depend on
the good intentions or motivations of our rulers: “If men were angels, no
government would be necessary.”
In fact,
we go from the land of the free to tyranny the moment we go from a nation of laws to a nation of powerful men
arbitrarily making laws in secret.
Indeed,
Bush and Obama have claimed some tyrannical powers that even Hitler and Stalin never claimed.
As I pointed out last month, many American leaders
appear to be consciously copying China:
The
American copyright bill is modeled after the Chinese system. As I noted
Monday:
Given
that Joe Lieberman said that America needs
an internet kill switch like China, that the U.S. economy has turned socialist (at least for friends of
those with control of the money spigot), and that the U.S. government used communist Chinese torture techniques specifically
designed to produce false
confessions in order to sell the Iraq war, I guess that the
bill’s Chinese-style censorship is not entirely surprising.
---------------------------------------------------
Here's
the original Turley 1/13/12 article from the Washington Post at:
http://www.washingtonpost.com/opinions/is-the-united-states-still-the-land-of-the-free/2012/01/04/gIQAvcD1wP_print.html
10 reasons the U.S.
is no longer the land of the free
By Jonathan Turley,
Published: January 13
Every year, the State
Department issues reports on individual rights in other
countries, monitoring the passage of restrictive laws and regulations around
the world. Iran, for example, has been criticized for denying fair public
trials and limiting privacy, while Russia has been taken to task for undermining
due process. Other countries have been condemned for the use of secret evidence
and torture.
Even as we pass
judgment on countries we consider unfree, Americans remain confident that any
definition of a free nation must include their own — the land of free. Yet, the
laws and practices of the land should shake that confidence. In the decade
since Sept. 11, 2001, this country has comprehensively reduced civil liberties
in the name of an expanded security state. The most recent example of this was the National Defense Authorization Act, signed
Dec. 31, which allows for the indefinite detention of citizens. At what point
does the reduction of individual rights in our country change how we define
ourselves?
While each new
national security power Washington has embraced was controversial when enacted,
they are often discussed in isolation. But they don’t operate in isolation.
They form a mosaic of powers under which our country could be considered, at
least in part, authoritarian. Americans often proclaim our nation as a symbol
of freedom to the world while dismissing nations such as Cuba and China as
categorically unfree. Yet, objectively, we may be only half right. Those
countries do lack basic individual rights such as due process, placing them
outside any reasonable definition of “free,” but the United States now has much
more in common with such regimes than anyone may like to admit.
These countries also
have constitutions that purport to guarantee freedoms and rights. But their
governments have broad discretion in denying those rights and few real avenues
for challenges by citizens — precisely the problem with the new laws in this
country.
The list of powers
acquired by the U.S. government since 9/11 puts us in rather troubling company.
Assassination of
U.S. citizens
President Obama has
claimed, as President George W. Bush did before him, the right to order the killing of any citizen
considered a terrorist or an abettor of terrorism. Last year, he approved the
killing of U.S. citizen Anwar al-Awlaqi and another
citizen under this claimed inherent authority. Last month, administration
officials affirmed that power, stating that the president can order the assassination of any
citizen whom he considers allied with terrorists. (Nations such as Nigeria,
Iran and Syria have been routinely criticized for extrajudicial killings of
enemies of the state.)
Indefinite
detention
Under the law signed
last month, terrorism suspects are to be held by the military; the president
also has the authority to indefinitely detain citizens accused of terrorism.
While the administration claims that this provision only codified existing law,
experts widely contest this view, and the administration has opposed efforts to
challenge such authority in federal courts. The government continues to claim
the right to strip citizens of legal protections based on its sole discretion.
(China recently codified a more limited detention law for its citizens, while
countries such as Cambodia have been singled out by the United States for
“prolonged detention.”)
Arbitrary justice
The president now
decides whether a person will receive a trial in the federal courts or in a
military tribunal, a system that has been ridiculed around the world for
lacking basic due process protections. Bush claimed this authority in 2001, and
Obama has continued the practice. (Egypt and China have been denounced for
maintaining separate military justice systems for selected defendants,
including civilians.)
Warrantless
searches
The president may now
order warrantless surveillance, including a new capability to force companies
and organizations to turn over information on citizens’ finances,
communications and associations. Bush acquired this sweeping power under the
Patriot Act in 2001, and in 2011, Obama extended the power, including searches of
everything from business documents to library records. The government can use “national security letters” to demand, without
probable cause, that organizations turn over information on citizens — and
order them not to reveal the disclosure to the affected party. (Saudi Arabia
and Pakistan operate under laws that allow the government to engage in
widespread discretionary surveillance.)
Secret evidence
The government now
routinely uses secret evidence to detain individuals and employs secret
evidence in federal and military courts. It also forces the dismissal of cases
against the United States by simply filing declarations that the cases would
make the government reveal classified information that would harm national
security — a claim made in a variety of privacy lawsuits and largely accepted
by federal judges without question. Even legal opinions, cited as the basis for
the government’s actions under the Bush and Obama administrations, have been
classified. This allows the government to claim secret legal arguments to
support secret proceedings using secret evidence. In addition, some cases never
make it to court at all. The federal courts routinely deny constitutional
challenges to policies and programs under a narrow definition of standing to
bring a case.
War crimes
The world clamored for
prosecutions of those responsible for waterboarding terrorism suspects during
the Bush administration, but the Obama administration said in 2009 that
it would not allow CIA employees to be investigated or prosecuted for such
actions. This gutted not just treaty obligations but the Nuremberg principles
of international law. When courts in countries such as Spain moved to
investigate Bush officials for war crimes, the Obama administration reportedly
urged foreign officials not to allow such cases to proceed, despite the fact
that the United States has long claimed the same authority with regard to
alleged war criminals in other countries. (Various nations have resisted
investigations of officials accused of war crimes and torture. Some, such as
Serbia and Chile, eventually relented to comply with international law;
countries that have denied independent investigations include Iran, Syria and
China.)
Secret court
The government has
increased its use of the secret Foreign Intelligence Surveillance Court, which
has expanded its secret warrants to include individuals deemed to be aiding or
abetting hostile foreign governments or organizations. In 2011, Obama renewed
these powers, including allowing secret searches of individuals who are not
part of an identifiable terrorist group. The administration has asserted the
right to ignore congressional limits on such surveillance. (Pakistan places
national security surveillance under the unchecked powers of the military or
intelligence services.)
Immunity from
judicial review
Like the Bush
administration, the Obama administration has successfully pushed for immunity
for companies that assist in warrantless surveillance of citizens, blocking the
ability of citizens to challenge the violation of privacy. (Similarly, China
has maintained sweeping immunity claims both inside and outside the country and
routinely blocks lawsuits against private companies.)
Continual
monitoring of citizens
The Obama
administration has successfully defended its claim that it can use GPS devices to monitor every move
of targeted citizens without securing any court order or review. (Saudi Arabia
has installed massive public surveillance systems, while Cuba is notorious for
active monitoring of selected citizens.)
Extraordinary
renditions
The government now has
the ability to transfer both citizens and noncitizens to another country under
a system known as extraordinary rendition, which has been denounced as using
other countries, such as Syria, Saudi Arabia, Egypt and Pakistan, to torture
suspects. The Obama administration says it is not continuing the abuses of this
practice under Bush, but it insists on the unfettered right to order such transfers
— including the possible transfer of U.S. citizens.
These new laws have
come with an infusion of money into an expanded security system on the state and
federal levels, including more public surveillance cameras, tens of thousands
of security personnel and a massive expansion of a terrorist-chasing
bureaucracy.
Some politicians shrug
and say these increased powers are merely a response to the times we live in.
Thus, Sen. Lindsey Graham (R-S.C.) could declare in an interview last spring without objection
that “free speech is a great idea, but we’re in a war.” Of course, terrorism
will never “surrender” and end this particular “war.”
Other politicians
rationalize that, while such powers may exist, it really comes down to how they
are used. This is a common response by liberals who cannot bring themselves to
denounce Obama as they did Bush. Sen. Carl Levin (D-Mich.), for instance, has
insisted that Congress is not making any decision on
indefinite detention: “That is a decision which we leave where it belongs — in
the executive branch.”
And in a signing
statement with the defense authorization bill, Obama said he does not intend to
use the latest power to indefinitely imprison citizens. Yet, he still accepted
the power as a sort of regretful autocrat.
An authoritarian
nation is defined not just by the use of authoritarian powers, but by the
ability to use them. If a president can take away your freedom or your life on
his own authority, all rights become little more than a discretionary grant
subject to executive will.
The framers lived
under autocratic rule and understood this danger better than we do. James
Madison famously warned that we needed a system that did not depend on the good
intentions or motivations of our rulers: “If men were angels, no government
would be necessary.”
Benjamin Franklin was
more direct. In 1787, a Mrs. Powel confronted Franklin after the signing of the
Constitution and asked, “Well, Doctor, what have we got — a republic or a
monarchy?” His response was a bit chilling: “A republic, Madam, if you can keep
it.”
Since 9/11, we have
created the very government the framers feared: a government with sweeping and
largely unchecked powers resting on the hope that they will be used wisely.
The
indefinite-detention provision in the defense authorization bill seemed to many
civil libertarians like a betrayal by Obama. While the president had promised to veto the law over that provision,
Levin, a sponsor of the bill, disclosed
on the Senate floor that it was in fact the White House that
approved the removal of any exception for citizens from indefinite detention.
Dishonesty from
politicians is nothing new for Americans. The real question is whether we are
lying to ourselves when we call this country the land of the free.
Jonathan Turley is the Shapiro professor of public interest law at
George Washington University.
