Repeal laws that violate our constitutional, human rights

Friday, January 2, 2015 Repeal laws that violate our constitutional, human rights By James P. Gray Millions of people all around the world still love America – and Americans. They may not always be wild about some of the actions our government takes, but many of us here are not either. But what is it that makes our country so special – even exceptional? The soul of our great country is our liberty and our freedoms. And today our very soul is under attack by our own government.

As legal professionals, we cannot allow this to continue. The temptation to deprive people of their liberties in the name of their own security goes back throughout history to Ancient Greece and before. The Founding Fathers of our country (and Mothers, because women like Abigail Adams must be included) were keenly aware of this tradeoff. This caused them to try to combat it by drafting our Constitution and Bill of Rights, so our country would be a bastion of individual freedom from government encroachment. Tragically those protections have been eroded substantially since that time – mostly by keeping our country in a constant state of war. James Madison’s warned us that “No nation can preserve its freedom in the midst of continual warfare … If tyranny and oppression come to this land, it will be in the guise of fighting a foreign power.” We should keep his warnings forefront in our minds, because that is what we are now facing.

The justifications for the main present attacks upon our liberty by our government come from several statutes passed by Congress in the name of keeping us safe, with the largest impetus being from the so-called War on Terror. In its name Congress passed the National Defense Authorization Act, which allows our government to detain (i.e., arrest) any of us, citizens or not, and hold us indefinitely without charges or a trial, merely by the executive department labeling us as suspected terrorists. This statute has turned our traditional concept of due process on its head. The same rationale was also used for Congress to pass the so-called PATRIOT Act, which has been used to justify government snooping upon our private telephone calls, email messages, and bank records. That same legislation was also used to justify the torture (often labeled as “enhanced interrogation”) of people in our custody. And yes, that includes waterboarding. Did you ever think that our country would even debate whether we should waterboard someone in our custody? Acts like these were seen by George Washington as such a blight upon the honor of our country that he threatened death during the Revolutionary War to any of our troops who mistreated British prisoners of war. When it comes down to it, there probably is no power more complete than the ability to torture captive human beings, or more despicable. So these laws must be repealed. Why? Because we are better than this. Sen. John McCain, who was tortured continually while being held captive in North Vietnam, put it best when he said torture “compromises that which most distinguishes us from our enemies.” And our country officially recognized this reality in the 1980s when we joined most of the civilized world in signing a treaty committing us to refrain from torture under any circumstances, and to prosecute any of us that did so. An additional reason to repeal these laws is practical. The goal of most terrorist organizations is to show the world that, contrary to its preaching, the government of the United States of America is no better than any other. So every time our government acts to violate anyone’s human or constitutional rights, it is helping the terrorists to achieve their goal. The same analysis and reality should keep our government from killing people with missiles launched from drones. This is not only a violation of our principles, but, at least in countries like Pakistan and the Sudan where we don’t even claim we are at war, is probably also a violation of international law. And besides, just like with torture, it probably doesn’t work. Put yourself in the place of a son or brother of someone killed by one of our drones, you would probably vow revenge. We are almost surely recruiting more terrorists than we are killing. Without a doubt radical groups in the world today are doing monstrous things to innocent people, like shooting students in their schools, bombing devout people while in prayer, and kidnapping and executing women and children. But the scenario that there is a “ticking time bomb” about to explode, and the only way to keep innocent people from being killed is to torture the information out of a terrorist, basically only happens in Hollywood. Furthermore, as if we needed any other reason but the moral one, tortured information is typically unreliable. There is also another important reason for repeal: Requiring government agents to procure a judicial warrant based upon probable cause will not compromise our security. Federal judges are fully as concerned about terrorist threats as the rest of us are, and they will surely sign arrest and search warrants as the circumstances and the law allow to enable government agents to keep us safe. But enforcing the constitutional requirement of procuring those warrants will seriously reduce the risks of abuses in the process itself. Finally, when it comes down to it, we, as adults, must be realistic enough to realize there is only so much that our government can do to keep us safe from wanton acts of terrorism. Yes, we can concentrate our security forces on airline terminals, but what about train stations or bus terminals? Or bridges or tunnels on our nation’s highways? Movie theaters, sports stadiums or crowded beaches? We should take a lesson from the people of London during World War II’s Battle of Britain when hell was literally reigning down from the skies during the frequent German Luftwaffe bomber attacks. When the air raid sirens went off, people did what was necessary to protect themselves by going down into bomb shelters. But after the all-clear was sounded, they went back to their regular lives without living in fear. We should do the same. So let us all stand up and work actively to repeal all of our country’s laws that allow human and constitutional rights to be violated. It is the right thing to do for simple justice. More importantly, our country’s soul is at stake.

Judge Jim Gray (Ret.)