The very definition of tyranny is when all powers are gathered under one place.
– James Madison
On September 20, 2001, then president George W. Bush laid out his vision for America’s response to the terrorist attacks on US soil, defining the parameters of the so-dubbed War on Terror during a nationally televised speech before Congress. Here is part of what he said:
Americans are asking: How will we fight and win this war? We will direct every resource at our command – every means of diplomacy, every tool of intelligence, every instrument of law enforcement, every financial influence, and every necessary weapon of war – to the disruption and to the defeat of the global terror network.... Our response involves far more than instant retaliation and isolated strikes. Americans should not expect one battle, but a lengthy campaign, unlike any other we have ever seen. It may include dramatic strikes, visible on TV, and covert operations, secret even in success. We will starve terrorists of funding, turn them one against another, drive them from place to place, until there is no refuge or rest. And we will pursue nations that provide aid or safe haven to terrorism. Every nation, in every region, now has a decision to make. Either you are with us, or you are with the terrorists. From this day forward, any nation that continues to harbor or support terrorism will be regarded by the United States as a hostile regime.1
Tough words, and years later his promise still holds true: the war against terrorism has most certainly been a lengthy campaign. Moreover, it’s one that’s resulted in much head-butting among the branches of government, with the judiciary slapping back the perceived constitutional encroachments by the executive, and the legislative mired in political infighting, trying to strike balance with laws that secure the nation yet uphold God-given individual rights.
In the 2004 case Hamdi v. Rumsfeld, the Bush administration went to battle with the court system over the classification of a US citizen as an “enemy combatant” when the Louisiana-born Yaser Hamdi was accused of fighting for the Taliban in Afghanistan. The US military captured him in Afghanistan and the government subsequently kept him imprisoned for about three years without charge, mostly at the Guantánamo Bay, Cuba, camp. Civil rights activists rallied and attorneys filed motions on Hamdi’s behalf, arguing he was entitled to his constitutional birthright protections.
The US District Court for the Eastern District of Virginia ruled that Hamdi was entitled to due process under the Constitution, and that the US government was wrong in holding him without charge and without access to his attorney. The US Court of Appeals for the Fourth Circuit reversed that ruling and sided with the government – that the president has constitutional war powers and that part of those powers allows for the imprisonment of those deemed dangerous “enemy combatants” to the United States. The case then moved to the US Supreme Court, where the majority reversed the Fourth Circuit.2
In the end, the government and Hamdi struck a deal. He would renounce his US citizenship and the United States would deport him to Saudi Arabia, the country where he was raised. But the case highlighted a growing unrest among liberals and libertarians over the War on Terror. Gone were the days of Democrats joining Republicans on the steps of the Capitol to sing “God Bless America.” Roughly three years into the PATRIOT Act, with the War on Terror’s end nowhere in sight, Democrats and antiwar activists were finding their voice again. The Hamdi case, to many, was a pure example of government run amok and of executive overreach, and liberals ran with it as proof positive of the Bush administration’s saber-rattling love for war.
Rumsfeld v. Padilla, also 2004, was no less contentious. That’s the case where FBI agents arrested Brooklyn resident José Padilla in 2002 at Chicago O’Hare International Airport on charges of plotting a dirty bomb attack.3 The government then deemed him a material witness, a classification that let them get by with detaining him for further questioning. A month later, President Bush stepped in and declared him an enemy combatant, and Padilla was whisked away to a naval station in South Carolina and held behind military bars for the next three-plus years, largely without benefit of legal representation.4
Again, civil rights groups rallied for his release from military custody, accusing authorities of illegally torturing and interrogating him and demanding he be given his constitutional right to a civilian court trial and to an attorney. The government finally acquiesced, and in 2006, Padilla was sent to a Florida jail on conspiracy charges.5 He was ultimately convicted of waging a jihad overseas and of aiding in overseas terrorism – but never of the dirty bomb charges that set his arrest in motion.6 Nevertheless, in 2008, Padilla was sentenced to more than seventeen years in prison – a term that was later deemed too short and landed him back in court.7
The question loomed: does the president of the United States have the lawful authority to detain an American citizen on US soil, miles away from the actual combat field?
The Court of Appeals for the Second Circuit said no. The US Supreme Court reversed that decision, but only because it decided that the named defendant – Rumsfeld – wasn’t the proper respondent. Unlike in Hamdi, the Supreme Court didn’t clarify the president’s powers of using military rather than police force to detain US citizens on US soil.
For Americans concerned about the state of our nation’s Constitution, the bigger issue is this: Padilla may very well deserve the treatment he received. But did the Founding Fathers envision a president with power to throw a civilian citizen behind military bars without benefit of charge, attorney, or trial? Years later that same question still nags at our conscience.
Hamdi, at least, was captured in Afghanistan, allegedly in the throes of fighting American forces alongside the Taliban. Padilla was grabbed at a US airport and was accused only of plotting a bomb attack on American interests. Both were American citizens, both were declared illegal enemy combatants, both were tossed into military prisons, and both were denied normal constitutional legal processes – the rights to an attorney, to be informed of the charges, and to a speedy trial. Is this the American way?
Bereft of the behind-scenes intelligence investigations and revelations that would lead a president and his administration to make such a call, the American public has been forced to adopt a more “trust me” approach of government when addressing that question. No wonder the head-butting among the branches of government – and with the American public – never ends. At present the issues over the War on Terror are still pitting entire branches of government against each other.
In May 2013, it was Congress and the White House – rather than the executive and judiciary branches – that were hitting at each other’s brick walls. The issue? The fate of the 2001 Authorization for Use of Military Force (AUMF) joint resolution and the War on Terror that the document essentially declared.
The AUMF, approved just a few days after the September 11, 2001, terrorist assault on America, gives the president the congressional stamp of approval to take all “necessary and appropriate force” against any and all “nations, organizations, or persons” he finds who have “planned, authorized, committed, or aided” in the attack.8 One pertinent section of the document makes clear that the president can take action against even those who are believed to have “harbored such organizations or persons.”9 It was this AUMF that gave President Bush the power to declare and detain Hamdi as an illegal enemy combatant. After a court ruled that Bush in that case did indeed utilize “necessary and appropriate force” by declaring him an enemy combatant – that the label and ensuing detention were legal and congressionally authorized – then the AUMF also became the justification for future detainments of prisoners at Guantánamo Bay.10
But the AUMF grants government broad powers.
It was this same AUMF that was cited as justification for the executive branch to use electronic surveillance absent FISA court authorization.11
In 2001, President Bush authorized the National Security Agency to conduct a top-secret operation with other intelligence agencies to uncover and halt terrorist attacks in the country – a general directive that included a range of spy activities, all under the dubbed umbrella of the President’s Surveillance Program. The President’s Surveillance Program eventually gave the NSA the authority to tap into all communications flowing in and out of the United States believed to be tied to al Qaeda or a similar terrorist group. This part of the program was called the Terrorist Surveillance Program, and in 2005, it became the talk of the media town.12
The then-ranking Democrat on the Senate Intelligence Committee, John D. Rockefeller, expressed concerns that these surveillance activities were unlawful. The New York Times, meanwhile, said it had known about the NSA spy program for a year, but declined to publish a story about it because the administration had asked for media silence, citing national security reasons.13
From there, national outcry only grew.
Answering critics of the government program of spying on US citizens, President Bush and his attorney general, Alberto Gonzales, claimed the joint resolution AUMF gave the White House the authority to conduct the surveillance. However, in 2006 the Congressional Research Service – the nonpartisan investigative arm of Congress – said the AUMF did not give the president the power to secretly spy on Americans.14 And the Senate introduced a resolution to clarify that the original AUMF from 2001 did not authorize any warrantless government surveillance of American citizens.15
Predictably, privacy advocates were outraged.
Yet in 2013, this highly contested AUMF for the War on Terror was still in use. And it was still setting up a significant stumbling block between Congress (primarily the Republicans) and the White House.
In May 2013, President Obama wanted to outright declare an end to the War on Terror, repeal the 2001 joint resolution AUMF, and finally make good on his campaign promise to close down Guantánamo Bay.16 But many in Congress, especially conservatives, saw the president’s push to call off the War on Terror as premature and balked at the repeal of the AUMF.17
Meanwhile, Sen. Saxby Chambliss, R-GA, summed up the conservative response to the idea of closing Gitmo with a statement that characterized the president’s plan as an irresponsible notion that would unleash 166 of the world’s most violent criminals onto innocent Americans. Other Republicans in the House agreed.18
So did the Pentagon, setting the stage for an interesting division between the president and commander in chief and the military forces he supposedly leads. In testimony before the US Senate Committee on Armed Forces in May, a top Pentagon official suggested that America’s best course of action would be to keep the AUMF intact for ten or twenty more years, as a solid means of continuing to root out terrorism and battle suspected terrorists.19
Doubtless, the fate of the national war on terror will take twists and turns in the coming years, based on political winds and directed largely by which party happens to hold White House and congressional control. But there’s a darker side to the fight for freedom, one that’s not going to lighten anytime soon. Undercutting all this political bickering is the fact that this perpetual War on Terror has created a trickle-down effect with significant impact on average Americans – the serious militarization of civilian police forces.
Before September 11, small-town police were more often than not armed with pump-action shotguns and high-powered rifles. Some were lucky enough to scrounge a stray M16 or two, but for the most part, the weaponry was of a decidedly civilian make and model. A decade later, and these same small police stations are often outfitted with top-of-the-line, military-grade assault weapons, the very type used on the battlefields of Iraq and Afghanistan.20
Officers, meanwhile, now don full-battle dress – from Kevlar helmets to body armor to high-tech bulletproof vests – for routine beat patrol. They ride Humvees and scour for suspects from their helicopters. And even small-town police departments house fully trained special weapons and tactics (SWAT) teams – the kind who used to work primarily at big, inner-city police units on violent and dangerous investigations.21 Moreover, these SWAT teams aren’t just responding to terrorist-related investigations. Some now perform the most routine of police duties, like serving warrants or making minor drug arrests.
The outcomes are not always peaceful.
In May 2011, Jose Guerena, a twenty-six-year-old Marine and Iraq war veteran, was killed in a hail of gunfire from SWAT officers who broke into his Pima County, Arizona, home on the belief he was a key player in an ongoing marijuana and drug investigation. Guerena thought he was being robbed, or worse, and moved to protect his wife and four-year-old son by hiding them in a closet and grabbing his rifle. Authorities saw the rifle and fired, ultimately shooting him between sixty and seventy times. Guerena didn’t even get a shot off, and police found his rifle on the floor next to his body, with the safety still in the on position.22
Guerena’s family subsequently filed a $20 million lawsuit against the county, seeking redress to a key question that undercut the entire fiasco: why would the county send SWAT agents to serve a warrant in the first place?23
That’s hardly the only case of police overkill.
In August 2013, a Florida couple told a local newspaper they were awakened by the sound of their barking pit bulls and gunshots. They said they opened the bedroom door and were startled to find six officers pointing guns and flashlights, ordering them to the floor.24
What was going on?
The police said they had been investigating an aggravated assault complaint and saw an open window on a house near where they last saw their suspect, so they entered the home. After climbing through the window, the officers encountered two pit bulls coming at them, defending the home against the intruders. After a brief scuffle with the dogs, one of the officers shot them. The police said they then searched the rest of the house and found the couple in bed. They handcuffed and interviewed them, but as it turned out, the couple had nothing to do with the assault incident. The police had stormed the wrong home.25
Head north to Virginia, where former Marine Brandon Raub was arrested in August 2012 by a swarm of federal agents and Chesterfield police and forcibly sent to a psychiatric ward for a mental health evaluation. His crime? Posting antigovernment messages and controversial song lyrics on his private Facebook page. While Raub sat in a mental hospital, his family scrambled to find legal representation. The circuit court judge who finally heard his case called the government’s claims 100 percent folly and totally unjustified, and ruled for his immediate release. Raub was let go and shortly after filed a civil rights suit for wrongful arrest.26
Cases like these are becoming all too commonplace. And given the military-type training that’s becoming normal for police around the nation, it’s more than likely that civilian law enforcement is only going to get more hard-charging, more “arrest first, ask questions later.”
The New York Police Department now has officers “stationed in London working with New Scotland Yard; in Lyons at the headquarters of Interpol; and in Hamburg, Tel Aviv, and Toronto.” The department has also sent its detectives to Afghanistan, Egypt, Yemen, Pakistan, and Guantánamo Bay, Cuba, to learn how to properly interrogate a prisoner.27
The technology police now receive as part of their crime-fighting tools of the trade is the stuff of science fiction. Police departments across the country are trying out guns that fire darts equipped with GPS technology. The darts are capable of attaching to bumpers and are supposed to be used by police involved in high-speed vehicle chases. Instead of endangering residents and other drivers, police simply take the data from the attached GPS device, plot the suspects’ travels via a digital mapping system, and intervene at a choice location or follow them home.28 Other high-tech gadgets include surveillance cameras that mount on officers’ ears and special cameras on patrol vehicles that scan license plates and search a database for outstanding violations.29
In September 2013, police were treated to even more high-tech gear at the annual Police Innovation Conference in Cambridge, Massachusetts. Amid the glitz of developing surveillance gear and the technological wizardry of iPad and iPhone tracking apps was information about a shocking new data program: a system to help law enforcement predict crimes before they even occur and identify suspects before they’re even suspected – a sort of community policing to the tenth degree.30 This latest trend in law enforcement is a potential civil liberties nightmare that twists traditional policing by sending cops to crime scenes before, not after, incidents occur. The software takes past crime statistics, analyzes them, and uses them to predict the direction crime is moving.31 By mid-2013, police in Los Angeles had incorporated the technology into their department to help with community policy efforts.32 Around the same time, law enforcement in Seattle wanted to test out the software’s ability to stave off gun-related violence.33
Think about the repercussions of that software for a minute. What will be law enforcement’s new boundary line, in terms of questioning, detaining, or even outright arresting citizens who may not even be suspected of a crime? It’s sometimes hard enough to strike an agreeable balance between police work and constitutional rights – as seen in the mad law enforcement swoop in Watertown, Massachusetts, to root out the two Boston Marathon terrorist suspects. But armed with software and technological data that could actually lead to the prevention of a crime, police may soon run roughshod over the Fourth and Fifth amendments with both regularity and abandon. After all, if you thought you could prevent a crime before it happened, wouldn’t you try?
Add to that software the likes of drones, and suddenly it’s like Hollywood out there.34
Drones are the new, to-die-for police tool, seen as cost-efficient, safe, and dependable ways of conducting surveillance operations in dangerous and life-threatening situations. They can help locate stranded mountain climbers or forest hikers just as easily as they track and monitor violent offenders who break out of jail, or armed suspects trying to flee police. But the creepiness factor of a law enforcement eye in the sky can’t be disregarded. City council members in Charlottesville, Virginia, disturbed by the prospect of police trolling the airspace with small, unmanned data recorders, actually voted in February 2013 to ban local law enforcement from using drones for criminal investigations – the first local government body in the nation to do so.35
But the technology isn’t going away. Police in Seattle considered drones for surveillance, and went so far as to purchase two in early 2013. But the mayor’s office was besieged with complaints from residents concerned about their privacies, and the local government banned their use.36 In Oakland, California, meanwhile, police pressured the board of supervisors to accept federal dollars and buy a four-pound drone to use to fight crime in the community. The public rallied in outrage, and the American Civil Liberties Union mounted a protest.37 Such shows of opposition aren’t so successful elsewhere in the nation, however. By June 2013 the Mesa County Sheriff’s Department in Arizona had embraced drone technology so tightly that officials had sent its two aircraft into skies to help with police chases and crime scene investigations a total of 171 hours over the course of three years. One sheriff reportedly said that the drones had been originally purchased to help with search-and-rescue missions, but that law enforcement basically used them however they wanted.38
It’s that attitude that’s a recipe for disaster for the fate of our Constitution. Good intentions – rooting out crime – often go awry when the government and police are involved. For a stark example, look at Fort Worth, Texas, and the partnership police forged with the National Highway Transportation Safety Administration, all in the name of maintaining a safe environment for drivers.
In November 2013, police in that community set up a roadblock and directed select drivers to a staged area, in a nearby parking lot. Once the motorists pulled into the lot, they were asked to provide a Breathalyzer reading, or give up samples of their saliva or blood – $10 for a cheek swab or $50 for a bit of blood. The reason? The NHTSA, in conjunction with a research company and partnering law enforcement agencies, was trying to collect data on drivers who operated vehicles under the influence of drugs and alcohol. Ostensibly, the DNA requests were just that – requests. And the NHTSA itself put out that all participation was voluntary, and that all DNA samples would be processed by an independent lab, anonymously. But some drivers said they felt intimidated by the whole affair. Others, including at least one local lawyer schooled in civil rights law, questioned the constitutional right of police to randomly select drivers and delay their travels for what amounted to a data collection drive.39
In the end, Fort Worth’s police chief actually apologized for pulling over motorists and promised that his force would not take part in any similar DNA collections in the future.40
But here’s the kicker: the NHTSA has conducted this same survey about every ten years for the past four decades at select spots around the nation.41 Its last drug and alcohol survey reined in about nine thousand drivers to participate.42 The latest leg that included Fort Worth was only a small part of a three-year effort to collect the same DNA data in sixty cities around the nation.
Is this really where we want our nation to head?
Armed with data and provided with the best technological advancements taxpayer money can buy, the government will eventually become the master and the individual, the servant. And when those government agents take the form of uniformed police, the intimidation factor on innocent civilians will be chilling.
Moreover, saying it’s all for our security or claiming it’s for the good of our nation is hardly a comfort – especially once it’s realized how much policing nowadays is done for profit, not protection.