Don’t Forget To Check Your Liberties Along With Your Luggage

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When will it end?  The Transportation Security Administration, the organization that mans the airport security checkpoints, appears to be just throwing new regulations and procedures at us, the American public, with the usual national security excuse.  Seriously, the conduct that the TSA now considers Standard Operating Procedure is so offensive, it was difficult to think of a title for this post that wasn’t equally outrageous.  Remember those new enhanced scanners that I wrote about several months ago?  They’re rolling out nationwide, and contrary to what I thought would happen back in January, the controversy just seems to be spreading.

In fact, I think we’re at the point where the snowball effect is starting to kick in; when I was originally trying to write this earlier this week, the outcry was largely limited to the blogosphere and other internet communities.  Now, however, it’s hit the mainstream media, and it doesn’t show any sign of slowing down any time soon.  Given that they are subjected to the scanners much more frequently than you or I, the airline pilots have a slightly different, and perhaps slightly stronger, argument than the general public.  However, the peoples’ argument is just as strong, and just as insidious.  Just how big?  Read on, my friend, read on…

In Defense of The Constitution

By now, I’m sure you’ve heard of the Cordoba House, the name of the proposed mosque and community center near Ground Zero.  What began as a simple local zoning matter became the latest flash point in our post-9/11 society almost overnight.  What’s striking to me isn’t the fact that some religious organization wants to build a house of worship near the site of the greatest tragedy in recent American history, but rather I’m shocked by the nationwide reaction to the proposal.  Then again, I suppose I should have seen this coming.  Ever since 9/11, American Muslims have been demonized to the point where we’ve alienated the very community that could prove instrumental in stopping the next 9/11.  This point has been hammered by many more-influential voices than mine over the years, but it just keeps getting worse.

Now, we’re at the point where we are compromising our own core values as Americans just out of fear of something different.  What really strikes me as hypocritical is that most of the inflamed rhetoric is coming from the conservatives – people who, at least in theory, should be supporting the mosque as a defense of the Constitution.  After all, anyone who knows even one fact about the Constitution knows about the First Amendment.  Culturally, we have come to view the First Amendment solely in terms of freedom to say whatever the heck we want to say.  However, there’s another piece to it; here’s the complete text of the First Amendment from the National Archives (emphasis mine):

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” – Amendment I, United States Constitution

Technically, yes, the text of the Amendment refers to Congress, however nearly 220 years of legal decisions and Congressional legislation have extended the protection of religion to apply to all parts of American society.  That fact alone makes this even more surprising: according to the New York Times, New York State Governor David Patterson has offered to pay the institute behind this controversial cultural center to move to state-owned land.  Not only is this a cowardly move by Gov. Patterson, but it is also blatantly unconstitutional!

The Fix to the Citizens United Ruling?

It’s been a crazy week in politics, particularly in Texas; the “silly season of politics”, as various people have called it, is in full swing.  Unfortunately, as much as I’d love to repost that video, I have no activists in chicken suits, nor do I have anything connecting certain politicians to chickens at all.  As much as I’d like to lazily put up a hilarious video on a Friday night, I’m not going to do that; plenty of people have already talked about that particular story, so I’ll give it a rest.  You might have heard about the recent Supreme Court case Citizens United v. Federal Election Commission; decided in January, this case effectively eviscerated the existing McCain-Feingold campaign finance restrictions and has remained controversial since.

Finally, a proposed solution is almost done making its way through Congress.  According to the Huffington Post, the bill known as the DISCLOSE Act, or for those of you who love these crazy acronyms as much as I do, the Democracy Is Strengthened by Casting Light On Spending in Elections Act, is intended to fix the mess that the Supreme Court started.  On a side note, if there’s one thing I particularly love about Congress, it’s when they come up with these epic acronyms.  Of course, the Patriot Act is still the reigning champion of legislation having an acronym as its name, but this one is still pretty good.

Anyway, campaign finance regulations: the details pertinent to this discussion is that in ruling for Citizens United, the Supreme Court essentially enabled the corporations and special interests to spend money on campaigns without restriction, whereas before there was a forest of restrictions that more or less was effective at keeping corporate and special interests at the very least regulated, if not outright restricted.  Faced with the possibility of unlimited spending in an election-year free-for-all, Congress came up with this legislation to try and plug the holes.

A Startling Civil Liberties Twist

Well, this is a dangerous ruling.  Today, The District of Columbia Circuit Court of Appeals ruled that the Presidential power to detain terrorists goes beyond even the Geneva Convention and other “rules of war”, according to the New York Times.  This is especially interesting in that it was just about a unanimous decision; two of the judges agreed on the same opinion, but even though the third agreed with them in the ruling, he wrote his own concurring opinion.  This judge, Stephen F. Williams, argued that the scope of the President’s power “goes beyond even what the government argued.”  According to the Times, these judges are the most conservative of all the Federal judges; the two writing the majority opinion were appointed by President George W. Bush, while Judge Williams was appointed by the President who is now revered by the GOP as being the model conservative, Pres. Ronald Reagan.  Political orientation aside, this is potentially one of the scariest rulings to emerge from the American courts in recent memory.

The decision itself was upholding a lower court ruling that a Guantanamo detainee, Ghaleb Nassar al-Bihani, should not be released under a habeas corpus petition.  That lower decision and the appeal were based on a 2008 Supreme Court decision, Boumediene v. Bush, which allows detainees to challenge their detention.  According to this decision, while Guantanamo detainees can challenge their detention in Federal court, there are limits placed on it, which have largely been left to be defined to the courts.  The decision in this later case, al-Bihani v. Obama, is among the first to apply this ruling.  It can still be reheard by the full Appellate Court, or it can be overturned by the Supreme Court, but this decision is enough to give civil libertarians pause.

Judge Brown also wrote a concurring opinion, in addition to signing on to the majority.  In it, she suggests that the war has brought America “past the leading edge of a new and frightening paradigm, one that demands new rules be written.  War is a challenge to law, and the law must adjust.”  Wow.  Civil Liberties proponents had a field day with the Patriot Act; this decision should be challenged ASAP.  In essence, Judge Brown legitimizes the entire Bush doctrine regarding enemy combatants.  It is a step backward if this decision is allowed to stand, especially because of the venue.  As the New York Times points out, the District of Columbia Circuit would be the primary legal venue for many of the Guantanamo cases.  Therefore this ruling will have a major influence.  Assuming at least one of the civil-liberties-related interest groups is not asleep at the wheel, this story is not over.