Bill of Rights Day was December 15, a time to reflect on constitutional freedoms. And as we enter the tenth year since 9/11, it’s hard to be optimistic about the state of civil liberties and human rights in the United States.
The executive branch remains primarily responsible for many of our vanishing rights. While laws such as the USA Patriot Act may have emerged under the Bush administration, President Obama has flip-flopped on most major issues affecting fundamental human rights. Despite his campaign rhetoric criticizing a “false choice between liberty and security,” he decided, in summer 2008, to support the Bush approach to massive warrantless surveillance, along with immunity for the telecommunications companies that had illegally cooperated with the secret program.
Since then, and contrary to campaign promises, the Obama administration has supported reauthorization of the Patriot Act; the “extraordinary rendition” program of kidnapping terrorism suspects and sending them to other nations to be tortured; continuing use of military commissions; and invocation of the “state secrets” privilege to dismiss lawsuits seeking accountability for illegal surveillance, rendition and torture. The administration has also famously failed to close Guantanamo, and expanded FBI crackdowns on peaceful activists.
Perhaps most galling, the Obama administration is also responsible for the Transportation Security Administration’s (TSA) “full body scanners.” These scanners don’t work to detect the plastic explosives that were their main justification, but do subject the entire traveling public to the choice of a humiliating digital strip-search or a grope. In many ways these control methods go beyond even the Bush administration’s approaches in scope and apparent permanence (as with the military commissions and planned indefinite detention of suspects).
The legislature has been a willing partner in these intrusions, as politicians of all stripes have rushed to cover their flanks from the allegation that they are “soft on terrorism.” Thus, US citizens have received such gifts as the Foreign Intelligence Surveillance Amendments Act (essentially ratifying the Bush approach to massive warrantless surveillance), the Military Commissions Act and the continued renewal of the Patriot Act (which will be up for Congressional authorization again in February 2011).
Despite a few landmark decisions from the US Supreme Court resisting executive branch excesses, such as the attempt to utterly deny meaningful habeas corpus or other legal review of the status of detainees suspected of terrorism, judges have proven only a weak shield for rights when the executive and legislative branches join forces to oppose them.
Earlier this year, a divided US Supreme Court decided in Holder v. Humanitarian Law Project to allow what were previously First Amendment-protected activities, such as legal or technical assistance to certain organizations, to be potentially deemed criminal “material support” of terrorism – even if the efforts in question aim to promote peace. Thus, activities such as the Carter Center’s election monitoring or assistance with peace negotiations could be subject to prosecution if they involve dealings with political parties such as Hezbollah or Hamas (or previously, Nelson Mandela’s ANC).
This recalls one often-overlooked reason to respect rights: they enable socially constructive progress among individuals and groups who may disagree – even violently – with each other, by providing a common standard or baseline beneath which no one may stoop. Widespread violations of rights, such as the undercover infiltration of law-abiding activist and religious groups, inevitably produce backlash and violence.
As an alternative to violence, rights empower individuals to be free from discrimination, to read and gather information in private, to peacefully assemble, to express themselves, to seek peaceful solutions, to have their claims heard in court and be free from arbitrary public or private power. Rights, thus, have an indispensable role to play in political disputes here at home as well as in effective counterterrorism globally.
Today, it would behoove all Americans and our leaders to remember the rights that have been so important to our national history and success, and to commit ourselves to concrete actions that will help restore them in the new year.