A few weeks ago at CPAC, a Friday panel was assembled to answer the question: “Does security trump freedom?” Among the panelists were Robert “Skip” Ash, who teaches a course on “national security law” at Regent University, and also serves at the American Center for Law and Justice (ACLJ) as their Senior Litigation Counsel for National Security Law. The deck was stacked beforehand: The ACLJ claims to be “focused on National Security issues and waging an effective and constitutional war on terrorism” (Constitutional? What Constitution?), and the debate moderator was Jay Sekulow, who serves as the organization’s Chief Counsel.
In his opening statements to the audience, Ash commented: “[The troops] also wonder why the President of the United States cannot bring himself to admit that the United States is in a long-term war with enemy jihadists, who seek to destroy us.” [Emphasis mine.] Several panelists, including the chief architect of the Patriot Act, went on to defend the PATRIOT Act as a set of wartime powers necessary to protecting freedom; as former Attorney General John Ashcroft had explained earlier in the day, “the purpose of security is to reinforce and enhance freedom.” Or, as George Orwell famously listed as a slogan of “the Party”: Freedom is Slavery.
To this, the short response is: If these “wartime powers” are so essential to maintain America’s national security and the freedoms of its citizens, why not declare a war? The heart of the matter, of course, runs much deeper. As Glenn Greenwald wrote in his New York Times bestseller, How Would A Patriot Act?, the goal is not to uphold or defend the Constitution at all, but rather to utilize fear to undermine it:
We do not have a government where the president can break the law in secret and then tell us not to worry about it because it is being done to “protect” us. We have never had a system of government operate on such paternalistic and blindly loyal sentiments. And we have never before been a nation living in such fear that, in exchange for promises of protection and safety, we are told that we must allow the president to seize those very powers which the Constitution prohibits.
The selling point initially presented to the American public by Republican Party leadership was that these powers would only be temporary. In the CPAC panel, Rep. Dan Lundgren [R-CA] said as much, proudly touting the fact that he helped to implement the so-called “sunset clauses” in the original legislation. However, this reassurance by the leadership of both parties of the validity of things called temporary wartime powers falls short, both historically and by the literal definition.
As has been evidenced by the history of government – and even if we restrict our study only to the history of American government – the government is very hesitant to cede any of the powers it fought so hard for, or any of the money it looted from the taxpayers. Consider the despicable practice of military conscription and the associated Selective Service System in the United States. The original Selective Service Act of 1917 was implemented under a declared war, but set the dangerous precedent that the federal government had the authority to force American citizens into military service without their consent. The draft was discontinued in 1920 at the completion of World War I; however, Selective Service was established as a government entity.
By the time World War II had begun, Selective Service was used as a resource to conscript male citizens, even before war had been declared. Drafting continued until 1946, and the Act of 1917 was allowed to expire shortly thereafter; however, a new Selective Service Act was passed in 1948, not only with no declared war, but absent the threat of one. Although the draft is not active today, the Selective Service System is still with us, and has transformed itself from a temporary wartime power to conscript into a permanent registration of citizens in a time of peace, required of anyone who wants a government loan or job.
The examples are seemingly endless: The Federal Deposit Insurance Corporation was established in 1933 as a temporary government corporation, only necessary for recovery from the Great Depression, until it was made permanent in 1935. More than 500 dormant legal provisions are re-activated in every instance in which the President declares a state of emergency – most of which were created as temporary powers deemed necessary to deal with the crisis or threat of the day. More alarming, perhaps, is the fact that recent Presidents have utilized the “state of emergency” declaration for such imminent threats as swine flu.
Needless to say, the new powers conferred upon the President by the PATRIOT Act are unlikely to be documented by history as temporary powers, especially considering that it has now been reauthorized three times: in 2005 and 2006, and most recently this month, when Congress slipped the reauthorization inconspicuously into a bill called the “Medicare Physician Payment Reform Act.”
However, even if these gross atrocities against the Constitution and civil liberties were somehow necessary to defend the nation in a time of war, they would not be valid for the simple reason that we are not at war. Such a declaration would force the hands of government officials to either present these powers as the permanent injustices that they are, or to discontinue them at war’s end. As such, the endless “War on Terror” will continue undeclared: the current strategy affords the President the luxury of using the powers no Constitutional scholar knew he had, while shielding him from well-deserved ridicule and outrage for doing so. And, as both parties have demonstrated, neither is about to eliminate powers that “their President” might like to use once elected.
Unfortunately, members of the military are making the ultimate sacrifice, not for the national security of America, but for the job security of its politicians.Published in