From Liberty to Leviathan: The War on Freedom



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From Liberty to Leviathan: The War on Freedom
Lee Penn
Fall 2006, Journal of the Spiritual Counterfeits Project (SCP)
© SCP, 2006-2008
By courtesy of the SCP, this article has been released for posting on the Internet. Readers may order the magazine containing an illustrated version of this story by visiting the SCP web site, at http://www.scp-inc.org, or by calling the SCP office in Berkeley, California, at 510-540-0300, between 9am and 5pm Pacific Time. This magazine, Volume 30:2-30:3 (2006), also includes two articles on the “Emerging Church” (by D. A. Carson and by Tal Brooke), and a story by Brooks Alexander on Wicca and Neopaganism.

A Global War – Against Freedom
In the United States and around the world, would-be authoritarians continue their assaults on individual freedom. In the US, Canada, Great Britain, the European Union, the former Soviet Bloc, China, the Islamic nations, and the rest of the Third World, the trend is the same. At the same time, Western religious and secular pundits – mainstream “liberals” and “conservatives” alike – denounce what they call “radical individualism” and call for a reassertion of the “common good” rather than a defense of human rights. As in the 1930s, virtually everywhere the trend of the times is strongly against liberty.
As the powers-that-be reassert their will to dominate their own people, they are also – worldwide – mobilizing for new wars. On the left and the right, and in secular and religious states, calls for peace are being drowned out by those who propose to violently remake the world according to their own will. On all sides, those who plan the wars expect to usher in a utopia once the enemy is crushed. Fear and hate, fanaticism and utopianism ride forward together. Mankind rushes toward a self-inflicted Armageddon, followed by a self-willed anthill State. No unified human conspiracy is responsible; what we are seeing is how humanity acts when it makes itself – and its tribes, its rulers, its beliefs, its wealth, and its security – into idols. As a race, humanity has cavorted with Astarte, sought gold from Mammon, and given honor to Baal; now the time comes for Moloch to exact his sacrifice of blood.
These trends, which blighted much of the 20th Century, seemed to have abated or reversed with the fall of the Soviet empire in 1989-1991. However, after the September 11, 2001 attacks on the US, the world resumed its swift travel down the road to serfdom. [1] Previous articles in this Journal – “When the State Becomes God” [2] and parts I and II of “Soul Under Siege” [3] – covered the erosion of liberty from the 1990s through mid-2004. This article takes up where the earlier stories left off.
It might be asked: if the current regime in the US – and the current world order – are as illiberal as you claim, how is it that you are able to write as you do now, and to publish openly? Indeed, for now, I can prepare this article without fear. However, the time to denounce and resist dictatorship is before it is fully established, before the mechanisms of repression and deceit are fully in place, and before the people have been fully anesthetized by fear and greed so as to accept their new masters. When the Russian Bolsheviks consolidated power in 1918, and when the Nazis imposed their dictatorship in 1933, the opportunity for legal, peaceful dissent and resistance had ended. As Supreme Court Justice Sandra Day O’Connor said in March 2006, “It takes a lot of degeneration before a country falls into dictatorship, but we should avoid these ends by avoiding these beginnings.” [4]
Open dissent is possible for now – but unless present trends reverse, it will not be for long. After the next 9/11, or after a traumatic military defeat, or after the first use of an atomic weapon, or – perhaps – even after a plague or a massive natural disaster, silence will be imposed in the name of “security.” Then, it will be too late to issue such public warnings as this. As Christ said, we must work “while it is day; night comes, when no one can work” (John 9:4).
This account, of the efforts afoot worldwide for the suppression of freedom and human dignity in the name of “peace and security” (1 Thess. 5:3), begins where most SCP readers live: in the United States. This story shows – as did the earlier SCP articles – that both major political parties, and all levels of government, are at fault for undermining freedom. As James Bovard, a libertarian writer who has been covering abusive government power since the late 1980s, said: “It would be a mistake to view Bush as an aberration in modern political history. There are far more parallels between Bush and Clinton than either Democrats or Republicans would like to admit. And most of Clinton’s abuses followed precedents set by Bush, Sr., Nixon, Johnson, and earlier presidents.” [5]
The Bush Administration: Leviathan Unleashed
Bush and his followers have said that since the US is at war, the President has the “inherent constitutional power” [6] to wage this war as he sees fit, by any means necessary. Those means have included the following – a collection of power tools that any aspiring tyrant would love to have. Some of these practices have been challenged in Congress and the courts – but in all cases, the Administration is resisting any limitations to its authority.
        Wiretapping without a court warrant: By Presidential order, the National Security Agency (NSA) has spied on Americans as well as on suspected overseas terrorists – without going to the secret tribunal established in 1978 by the Foreign Intelligence Surveillance Act (FISA) to get a warrant for such surveillance. The New York Times reporters who broke this story in December 2005 are under Justice Department investigation for possible unlawful release of classified information. When the ACLU went to court to stop the program, the Justice Department demanded that the Federal judge dismiss the case, since “state secrets are involved.” [7] (The Federal government made a similar claim in September 2006, in an Oregon warrantless wiretapping case, saying that the plaintiffs must not be allowed to sue “because classified facts needed to evaluate the case are protected under the so-called ‘state secrets’ privilege.” [8])
AT&T gave the NSA “secret direct access to phone calls and e-mail detailing the activities of millions of ordinary Americans.” [9] When the privacy watchdog Electronic Frontier Foundation (EFF) sued AT&T for this, the Justice Department warned the Federal judge hearing the case to dismiss it to protect “state secrets.” [10] Judge Vaughn Walker, who was appointed by George W. Bush’s father, has allowed the case to move toward trial, nevertheless.
In August 2006, a Federal district court judge (Anna Taylor, a black liberal appointed by President Carter) ruled the espionage program illegal, saying: “It was never the intent of the framers [of the Constitution] to give the president such unfettered control. … There are no hereditary Kings in America and no powers not created by the Constitution. So all ‘inherent’ powers must derive from that Constitution.” [11] This ruling is, of course, being appealed by the Justice Department.
        Indefinite detention without charge or trial: In November 2001, Bush stated that he had the right to hold as an “enemy combatant” anyone whom he suspected of involvement with terrorism – and these detainees could be held indefinitely, without access to courts. [12] These “combatants” need not be armed; donors to foreign charities whose money ended up in the wrong hands could also be imprisoned. [13] At a December 2004 Federal court hearing, Deputy Associate Attorney General Brian Boyle claimed, “Someone’s intention is clearly not a factor that would disable detention” as an enemy combatant; this category is “not limited to individuals who carried a weapon and shot at American troops.” [14] In June 2005, during an appearance before the 4th Circuit Court of Appeals, the US Solicitor General told the court that the US is a “battlefield in the war on terror,” allowing the President to imprison “enemy combatants” – including US citizens – on American soil. [15]
The issue in this 2005 case was whether Jose Padilla, an American citizen and a convert to radical Islam jailed since 2002, would ever have a day in court to face charges against him. As of September 2006, Padilla has finally been charged, but the indictment has nothing to do with the publicly stated reason for his arrest four years ago: the allegation that Padilla was part of a plot to explode a dirty (radioactive) bomb in the US. [16]
According to Amnesty International, “More than two years after the US Supreme Court ruled in Rasul v. Bush that the US federal courts have jurisdiction to consider habeas corpus appeals from the persons held at Guantánamo, not a single detainee currently held at the base has had the lawfulness of his detention judicially reviewed on its merits because of intense Administration resistance to the Rasul ruling. The Administration is now seeking to have all Guantánamo detainees permanently denied their right to full judicial review of their detentions, in contravention of international law.” [17]
Congress has passed the law Bush wanted, allowing indefinite detention – without court review – of those designated by the President as “enemy combatants.” [18] The Senate passed the bill by 65-34, with approval from all but one of the Republicans and twelve of the Democrats; the House passed the bill 253-168 on a “mainly party line vote.” [19] Establishing a precedent – suspension of the right of habeas corpus for enemy aliens – clears the way for suspension of the same right for Americans, if the government deems a future “emergency” to require it.
Vincent Warren, director of the Center for Constitutional Rights, said, “This unprecedented and expansive suspension of habeas corpus is utterly unconstitutional. … Since the nation’s founding the writ has been suspended only four times – each only briefly and in a territory that was an active combat zone. … This bill would suspend it for all non-citizens inside and outside of the US – even if they have not been charged with any crime.” [20] Journalist Jim Lobe, of the Inter Press Service, reported that “the Republican chairman of the Senate Judiciary Committee, Sen. Arlen Specter, predicted that the courts will rule the elimination of habeas corpus – which dates back to the English Magna Carta in 1215 – under the MCA [Military Commissions Act of 2006 ] unconstitutional. ‘What this bill will do is take our civilisation back 900 years,’ he warned. … One particular item of concern was the bill’s expansion of the definition of ‘unlawful enemy combatants’ who could be subject to detention under the MCA to cover persons – including US citizens and legal permanent residents – who have ‘purposefully and materially supported hostilities against the United States or its cobelligerents,’ or anyone deemed as such by a ‘Combatant Status Review Tribunal’, which is overseen by the Pentagon. ‘This provision expands the concept of combatant way beyond anything that is traditionally accepted, and it could come back to haunt Americans,’ said HRW [Human Rights Watch] director Kenneth Roth. ‘It would make every civilian cafeteria worker at a US military base, and every worker in an American uniform factory, someone whom enemy forces could shoot to kill.’” [21]
        Trial of prisoners by military tribunal: Bush has set up military tribunals to give summary judgments upon US prisoners held at Camp Delta at Guantánamo Bay. In June 2006, the Supreme Court ruled against these “courts” in the Hamdan v. Rumsfeld case, [22] finding that they are in violation of US and international law. [23] In response to this decision, the Administration sought Congressional legislation authorizing these drumhead courts for alien captives. According to Amnesty International, “The commissions as proposed would allow for the admission of coerced and hearsay evidence and for the defendant to be excluded from any part of the proceedings in which classified information is admitted.” [24] On September 29, 2006, Congress approved these tribunals, which will operate as Amnesty International described them. [25]
        Torture and abuse of prisoners: After the invasion of Afghanistan, the President decreed that Al Qaeda and Taliban captives would not be entitled to the protections of Article 3 of the 1949 Geneva Conventions, which set standards for humane treatment of enemy captives. [26] The Supreme Court’s June 2006 Hamdan ruling said otherwise – a ruling that is consistent with the War Crimes Act of 1996, which requires US personnel to comply with the Geneva Convention.
The CIA sought legal authority to continue the “special interrogation techniques” that it began using on terror suspects in 2002 in its secret prisons. These include “induced hypothermia; forcing suspects to stand for prolonged periods; sleep deprivation; a technique called ‘the attention grab’ where a suspect’s shirt is forcefully seized; the ‘attention slap’ or open hand slapping that hurts but does not lead to physical damage; the ‘belly slap’; and sound and light manipulation.” [27] Another technique, the simulated drowning of prisoners (“waterboarding”) has been hailed by John Gibson, a FOX News commentator. He said it is “not torture” and “it worked.” [28] The hawkish, neoconservative FrontPageMag.com site defends the practice as one with “immense value in our fight against terror.” [29]
Those who are familiar with the techniques used by the KGB to obtain confessions during the Soviet show trials of the 1930s will recognize these CIA techniques; Solzhenitsyn listed them in Gulag Archipelago as “some of the simplest methods which break the will and the character of the prisoner without leaving marks on his body.” [30]
As in Soviet times, these methods get prisoners to confess to anything – true or false – so as to end the abuse. In at least one case, the “intelligence” gained from these tortures was used by the Administration to justify the invasion of Iraq. As ABC News reported in 2005, “According to CIA sources, Ibn al Shaykh al Libbi, after two weeks of enhanced interrogation, made statements that were designed to tell the interrogators what they wanted to hear. Sources say Al Libbi had been subjected to each of the progressively harsher techniques in turn and finally broke after being water boarded and then left to stand naked in his cold cell overnight where he was doused with cold water at regular intervals. His statements became part of the basis for the Bush Administration claims that Iraq trained al Qaeda members to use biochemical weapons. Sources tell ABC that it was later established that al Libbi had no knowledge of such training or weapons and fabricated the statements because he was terrified of further harsh treatment.” [31]
Abuse of prisoners by the military and the CIA has gone well beyond “harsh treatment.” Captain Ian Fishback of the 82nd Airborne Division reported “death threats, beatings, broken bones, murder, exposure to elements, extreme forced physical exertion, hostage-taking, stripping, sleep deprivation, and degrading treatment.” [32]
The Military Commissions Act of 2006 bans some of the “enhanced interrogation techniques” that have been used by the US, but protects the torturers and those who gave the orders from prosecution under the War Crimes Act of 1996. As reported by journalist Jim Lobe, the law “appeared to reaffirm Article 3 as the law governing the treatment of detainees and, on the other hand, also provided the executive branch considerable latitude in how it would be interpreted, particularly with respect to CIA interrogation tactics.” [33] There are “changes to the War Crimes Act that could permit CIA interrogators to use ‘humiliating and degrading (interrogation) practices’ proscribed by Common Article 3 but that fall short of causing ‘serious’ physical or mental pain or suffering. Other amendments to the 1996 act would provide retroactive immunity to US officials for serious violations of Common Article 3, including for using or authorising tactics, such as waterboarding, that most groups consider torture … Moreover, it bars the Geneva Conventions from being invoked in any lawsuit against the US government.” [34] It’s virtually certain that the Administration will interpret this law so as to approve whatever “enhanced interrogation techniques” seem expedient.
        Arbitrary searches and seizures: New Transportation Security Administration (TSA) rules banning most liquids, lotions, and gels from air passengers’ carry-on bags were issued after the August 2006 discovery of an alleged Islamic plot to blow up airliners in mid-flight. These regulations change unpredictably, and uniform enforcement is virtually impossible. This is the latest of the post-9/11 air security decrees, whose practical effect seems to be to (1) teach Americans to submit to intrusive, warrantless searches whenever the authorities demand them, and (2) to teach them not to complain or assert their rights, since creating a disturbance at a TSA checkpoint is a sure way to get a fast arrest. By this means, among many others, the spirit of a once-proud American middle class is broken. Meanwhile, TSA agents have been stealing and damaging passengers’ luggage; the agency settled a class-action suit with 15,000 victims in September 2004. [35]
        The PATRIOT Act: In October 2001, Congress rushed the PATRIOT Act into law. Few read the bill, and it passed with overwhelming bipartisan support: 98-1 in the Senate, and 357-66 in the House. [36] Congress renewed the bill in March 2006, with minor changes, and again both parties voted overwhelmingly in favor: 89-11 in the Senate, and 280-138 in the House. James Bovard summarizes what the law does: “The Patriot Act authorized confiscation of travelers’ money (in violation of a Supreme Court ruling), the use of new surveillance software that could vacuum up millions of people’s e-mail without a search warrant, nationwide ‘roving wiretaps,’ and seizing library, bookstore, and other business and financial records based solely on subpoenas issued by FBI field offices on the flimsiest of pretexts. The act also greatly increased the power of the so-called Foreign Intelligence Surveillance Court – a kangaroo court that meets in secret, never permits any defense attorney to appear to challenge the government, and approves 99.9 percent of all the wiretaps the FBI requests.” [37]
        Secrecy without limit: Even before 9/11, the Bush Administration had proven itself to be addicted to secrecy. [38] In March 2001, Bush told the National Archives not to release 68,000 pages of documents from the Reagan Administration, despite the 1978 Presidential Records Act stating that Presidential papers were to be made public 12 years after the end of that Administration. In November 2001, Bush issued an executive order stating that “even if an ex-president wants to release his papers to the public, the sitting president has the right to bar their release anyway.” He has ordered the National Archives to seal tens of thousands of pages of documents that were previously available to the public – and directed Archive staff not to explain why the documents were re-classified. Attorney General John Ashcroft told other federal officials that the Justice Department would help them resist requests for release of information under the Freedom of Information Act. The Administration has successfully defended the Vice President from revealing who attended the early 2001 meetings of the National Energy Policy Development Group, and what was discussed there. (The General Accounting Office, the investigative arm of Congress, had sought the information to determine the extent to which Enron, a major contributor to Bush’s campaign in 2000, had influenced national energy policy.)
        A free pass for lies: High-stakes deception has abounded on the part of the Bush Administration and its allies. President Bush has lived by the principle that he set forth in his May 2005 speech about Social Security privatization: “See, in my line of work you got to keep repeating things over and over and over again for the truth to sink in, to kind of catapult the propaganda.” [39] Before the US invasion of Iraq, the Administration said that Saddam Hussein was tied to Al Qaeda, the terrorists who attacked on 9/11, and that Hussein had weapons of mass destruction that could threaten the US and its allies. Both charges, which were the basis for Congressional approval for Bush to use force against Iraq, were false. In mid-2003, a senior Bush Administration source dismissed a journalist’s complaints about these errors, saying; “The President of the United States is not a fact checker.” [40]
The President’s senior staff mirrored Bush’s contempt for truth. In early 2002, there was a storm of media criticism over the revelation that the Pentagon had established an “Office of Strategic Influence” (OSI) to develop “plans to provide news items, possibly even false ones, to foreign media organizations.” In November 2002, defense commentator William Arkin told the Los Angeles Times why this was a serious problem for Americans; an OSI-style office “blurs or even erases the boundaries between factual information and news, on the one hand, and public relations, propaganda and psychological warfare, on the other. … While the policy ostensibly targets foreign enemies, its most likely victim will be the American electorate.” Facing such attacks, the Pentagon officially abandoned plans to establish the OSI. However, Secretary of Defense Rumsfeld told journalists that same month, “fine, if you want to savage this thing fine I’ll give you the corpse. There’s the name. You can have the name, but I’m gonna keep doing every single thing that needs to be done and I have.” [41]
Rumsfeld and the Justice Department were using the same operations manual, it seems. Theodore Olsen, Bush’s solicitor general, told the Supreme Court in 2002 that the government has the right to “give out false information … incomplete information and even misinformation” when necessary. [42] Heaven help any citizen who asserts a similar right to lie to, or withhold information from, a Federal agent. As Martha Stewart and others have learned, that’s worth a trip to the penitentiary for perjury or obstruction of justice.
In the summer of 2002, a senior adviser to Bush rebuked Ron Suskind, a skeptical journalist, thus: “The aide said that guys like me were ‘in what we call the reality-based community,’ which he defined as people who ‘believe that solutions emerge from your judicious study of discernible reality.’ I nodded and murmured something about enlightenment principles and empiricism. He cut me off. ‘That’s not the way the world really works anymore,’ he continued. ‘We’re an empire now, and when we act, we create our own reality. And while you’re studying that reality – judiciously, as you will – we’ll act again, creating other new realities, which you can study too, and that’s how things will sort out. We’re history’s actors . . . and you, all of you, will be left to just study what we do.” [43] However, recent events in Iraq and the rest of the Middle East have shown that reality will, if denied, forcibly reassert itself.
        Claims to unlimited power: An August 1, 2002 memo written by two high US Justice Department officials rebuffed attempts to use anti-torture laws to limit presidential powers to torture enemy combatants: “Even if an interrogation method arguably were to violate Section 2340A, the statute would be unconstitutional if it impermissibly encroached on the President’s constitutional power to conduct a military campaign. … The demands of the Commander-in-Chief power are especially pronounced in the middle of a war in which the nation has already suffered a direct attack.”
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