Thursday, April 21, 2005


The Patriot Act is back in the news. This time it is coming up for renewal and a lot of modifications. Of course, my friend Tommy still thinks that I am against the thing... not so. I just want to be clear that such stuff is dangerous. This brought us back to an argument that culminated in a Rant a little over a year ago, and is still worth considering again. Here it is ----


My friend Tom is the most agreeable of men and I’ve known him since we were children. Of course, we have gone down different paths as we’ve acquired antique status... he got a job in industry and went about his business. Now days he is the quintessential “Captain of Industry” and gets invitations to sit on panels at Harvard University while he considers offers to conduct seminars on how to build new cities out of scrap lumber funded by anonymous federal agencies and chartiable trusts. I got a job teaching school and went where ever it is that I went.... academic poverty mixed with the quiet fear that whatever I do will mean less than nothing in the final tally. But when you get right down to it we are more than just friends.. as Anne of Green Gables would say, we are bosom friends... pals. He’s the only man in the world who could induce me to cross state lines to witness the marriage of his daughter. She was lovely. And he’s the only man who could be trapped with rhetorical devices by entities which he has every right to presume to be trustworthy... and shouldn’t treat him with contempt but do... without enjoying my contempt, or at least amazement at his naivete. They’re playing you for a sucker, Tom. Shame on them.

But now here comes the damned Patriot’s Act. In itself, not such a terrible thing. We naturally have to protect ourselves from the wickedness of this increasingly psychotic world. If the retards that make up 75% of the world population are determined to hate us there really isn’t too much we can do about it, except go on with our lives and try to protect our children. And we have, and we will. Rest assured... this is not a nation of softies. All too often our enemies forget that America is the only nation to ever use nuclear weapons on civilians. At the time it seemed like the logical thing to do. Heck, after Dresden and London’s blitz and the Russian expulsion of the Nazis, our little firecrackers seemed like the next logical step. But it sure as hell ended the war with a bang, didn’t it? Mess with us at your peril. That’s the lesson that the mud people keep forgetting, so they have to relearn to fear us over and over... that we are a nation that shouldn’t be trifled with. America is the sleeping giant... the gorilla of geopolitics. We WILL burn down your hooch and shoot your water buffalo and exterminate your tribe if you piss us off. And we will exterminate you with the highest of moral anger... outrage even. We will be certain in our own hearts that we are “doing the right thing” and that we are only doing what is “best for you”. Yada yada yada ... yeah. Mess with us and we will make you and all of yours a footnote in an unread history book. The reason the Indians don’t remember that lesson is because we killed just about all of them. The reason the Nazis don’t remember is the same. Japs? Same deal. Believe me... we are not a people to be trifled with. Ask the Arawaks, if you can find one. Or the Seminoles. Or the Ottomans. Of course, we always want to be seen as the “good guys”. You beginning to see a pattern in our mythology?

So what keeps us from becoming monsters? What keeps us from just being another in the long list of Attillas and Sulemans and Stalins and Vlad the Impalers? Well, for one thing, we are a nation of men who actually believe our own bullshit. We really are the good guys. Our ethos says that we all want to be like John Wayne. We are all acting out our own version of True Grit: tough guys with hearts of gold. Now, Pilgrim... you shouldn’t be messin’ with them weapons of mass destruction. I’m gonna have to take your country away from you till you learn how to do the right thing. Now let’s get them cattle back to the homestead. Is that the real world? Only to us. The rest of the world thinks that a full cup of goat piss is the only drinking water allowed by Allah, and they are probably right. But that’s not my idea of Nirvana.

The other thing that we have going for us is a governmental system that is based on fundamental principles of fairness and balance. By the people, for the people, and of the people. Our founding fathers thought that they’d try a system where no single governmental entity would have total control over the home boys. That there would be an executive branch, and a judicial branch, and a legislative branch. That each would have their own unique job to do. That each of them was a vital and necessary element of governing this nation of romantic idealists, but that none of them would have ... total control. No king like they tried in Europe. No tyrant like they had in ancient Greece. No politbureau. No Gang of Five. Just a system where we could freely change governments every four years if we wanted to and no one man could ever wind up with the whole enchilada. Get it?

Of course, it’s a little untidy. Guys who are part of the legislature are constantly yammering about how those damned guys in the White House are over reaching their authority, and those guys in the Supreme Court are constantly telling the guys in the Senate that their ideas are unconstitutional and have to be re-written, and here comes the loonies in California’s courts making law out of thin air, and so on and so on. Is that a bad thing? Well, I’ll admit that it’s untidy. But, do we really want the trains to run on time? Do we want one side to absolutely win? That would mean that the other two sides would absolutely lose. Is that what we want? Well, hell no.

At the end of the day what we are all hoping for is that things will balance out and we can move on. Now... is there any reason why this system has a prayer? Well, yes. Some people, mostly guys like Hegel and Darwin and their scientific ilk, assert that there is a dynamic process in such dissent and that change through growth is the result. I agree. But I’ll freely admit that the process is messy... and to a certain extent, it is dangerous, because it requires that as citizens we hold to Jefferson’s requirement of an educated citizenry and that we hold that as an absolute fact and that it is an absolute minimum. We... all of us... have an obligation as citizens of this country and as members of this society which has undertaken this unprecidented experiment in self government... an obligation to absolutely “get it” when we are about to be suckered. And then to act accordingly. To ACT.

So here we are back at the Patriot Act. Is it bad law? Not particularly. It doesn’t really break any new ground. There are things about it that are a bit over the top... the shift from law enforcement to terrorist whacking at the FBI may be a bit much. But the SAFE Act can probably deal with the potential excesses that are manifest in that bit of boondoggelery. Of course, the Intelligence Authorization Act of 2004 grants the FBI a lot of very expanded authorities that have nothing to do with Al Quida. They can go snooping into data from car dealers, pawn brokers, travel agents, casinos, and... libraries and doctors offices and so on under the guise of fighting terrorism. The question that arises is, Do you trust the government to do the right thing? Well.... yeah. I’m pretty sure that they have their hearts in the right places. The trouble is... the details. Those crankey details. What does unlimited power to snoop give the government? Well, the answer is that it gives them the opportunity to ignore the other two branches of government. Traditionally, there has always been a judicial oversight process to make sure that the FBI and the INS and the NSA can’t just ignore the constitutional process.

Ignore? Well, that’s an accusation that we’ve heard tossed about in the Patriot Act opposition since it’s inception. The worry warts at the ACLU have whined from day one that the Act was railroaded through in a big hurry and that it was a blank check for the zelots at the Department of Justice to do an end run around constitutional issues. Is that true? Well, if you look at ONLY the Patriot Act the simple answer is no. Nothing in the Act says that they are suspending habias corpus, or denying people due process, or compromising the attorney/client privilege. So where does that crap come from?

Well, since that fell day in New York and the Twin Towers debacle the executive branch, the USDOJ, and the US Congress, has... in addition to the Patriot Act, promulgated a series of executive orders and interim agency regulations ostensibly to regulate the implementation of the Act that goes a very long way in upsetting the balance among the three branches in government. The “checks and balances” approach has been one of the most important parts of our form of government.

Actions of our government since the implementation of these executive orders have established what the Center for Constitutional Rights calls a “cloak of secrecy”. Now that doesn’t sound like open and free government to me. The thing that is of most concern to me is that while the particular elements within the legislation may be excessive, they are amenable. The SAFE Act introduced in the Senate in 2004 can probably drag the FBI and so on back from the brink, although the fact that they are there at all is proof of the fact that the FBI and the NSA are not playing well together like good children should. There is way too much “turf war” infighting going on for there to be any meaningful police work.

Unfortunately, since 2000 hundreds of people, citizens and non-citizens, no one is sure which, have been put into preventive detention in conjunction with the terrorist investigations. Some folks (Amnesty International) estimate that as many as 1200 people have been detained with no charges ever being brought against them, being denied access to counsel, and without any basis of violation of any immigration law. They just look like rag heads. Scary. Sounds like a chapter out of Kafka's "Trial", doesn't it?

Further, the ability of the executive branch to issue “executive orders” has created a whole new tier of “courts”, the military tribunals that are whispered about at Camp Zero where there is no such thing as due process or habias corpus; and the new modified role of the immigration courts in determining what rights the un-warranted and un-indicted accused bad guys have. Who knows... they’re not allowed to go get lawyers so there’s no one to speak on their behalf. Suddenly, it seems that all of us good guys are being fitted with brown shirts. That’s not my idea of a good thing.

There are two major areas to be addressed. First, the notion of governing by decree. If the executive branch can act without judicial or legislative oversight then the three party system of checks and balances will be a thing of the past. Do we want that? These “interim regulations” that have created Camp Zero and suspending habias corpus for god knows who all do precisely that. Is that what we want? The interim regulation expanded the power of the INS (that’s Immigration and Naturalization Service) to arrest and hold anyone for “a reasonable period of time” without bond, warrant, or charge. Reasonable? What about due process? Zadvydas v. Davis held that the due process clause of the constitution applies TO ALL (my emphasis) persons physically located within the borders of the United States. The court is not saying that the guys are not deportable... they may very well be on their way out of here... but there has to be a judicial action undertaken. No star chambers here, please. But so far the government has merely ignored the court rulings that order such procedures.

The same kind of foolery underlies the interim regulations issued in October of 2001 when federal agents were given the privilege of monitoring attorney-client communications. In very limited circumstances such surveillance has been done in the past so long as there is judicial oversight. The new rules sidestep such oversight. The Justice Department does not want the courts to be telling them what to do. Well, of course they don’t. But at what cost to our precious balance of power in the checks and balances system of government that our forefathers set up for us?

Perhaps the most disturbing of this parade of hanky panky has been the November 13th interim regulation creating the military tribunals to try accused terrorists. Recent years have shown that our existing courts are very adept at trying terrorism cases. The successes of prosecutors in the Tanzania and Kenya cases as well as the 1993 attack on the WTO in New York are proof of that. But the administration has taken the most fundamental role of the judicial branch, the hearing of charges before the bar, and transferred that right to the executive branch of government. Interestingly enough, they also are encroaching on the legislative branch’s historical prerogative to create such tribunals, which is constitutionally granted sole authority to create “tribunals inferior to the Supreme Court”. The fact that the executive branch can have its own courts answerable to no one but the executive branch, giving the president exclusive power to decide who will be tried under their system, and to create rules by which trial will proceed, to appoint who will judge and who will be prosecutor, and defense attorney, and to set penalties without recourse to appeal... just scares the hell out of me.

Am I the only one who finds this Kafkaesque? I’ve got a feeling that if my friend Tom had all the facts, we would... once again... be in agreement that there is something not quite kosher in Denmark. All this other stuff, government in secret, the attack on the 1st, 4th, 5th, 6th Amendments... can only exist if good men don’t stand up against it. Are the perpetrators of this foolery bad men? No... they all have the best of intentions. They just want to win for their team. The guys at Justice want to slap down the guys in the Supreme Court. The President wants to act presidential without a bunch of whining jerkoffs from the Congress meddling in his well intentioned agenda. But... for God’s sake guys. Do we really have to throw out the baby with the bath water?

Tommy... do you trust your government? Which branch should we sacrifice all of our apples to? Should the executive have the right to side step the judiciary? Has the congress done a good thing when it has given DOJ a green light to just blow off the judicial process? My vote is no. Is anyone counting votes?

In my own simple minded way I see this process the same way that I see the balancing act that is necessary for good mental health in people and groups. Here comes Alfred Alder again. And Hegel. And Darwin. In order to have a healthy group, such as the group made up of a parent, a teacher, and a student... all members of the group have to have a stake in meeting their individual as well as their group needs. A teacher will sit down with a parent and a kid and talk about what they need for a successful school experience. The kid will be there to explain what he needs to achieve in a class. The parent will be there to define what is the vision in their mind of the student’s future. The teacher is there to make sure that the parent and student know what he has to have in order to succeed in meeting their collective goals and to satisfy the school board’s dictates. Each one of them has power and each one of them has the ability to work together towards success and each one of them has the power to totally subvert the process and stop any hope of progress. They cooperate, they win, they don’t cooperate, they lose. Healthy -- unhealthy. It’s not complicated. That’s Adler. Hegel said that when a thesis and an antithesis collide the result is a synthesis, which becomes a new thesis... and so on and so on. Darwin said that evolution will sort out the weak from the strong. He was right.

Isn’t that the genius of our system of government, that we have an arena where the three branches can work to meet their individual needs while they are all working towards collective good government? I know that in psychology when one of these sources of power... like the triad I was just using as an example... unbalances the power equation of the group, what Adler called the “locus of control”, then the whole group dynamic becomes unstable... unhealthy. Is our government any different? I think not.

Tom, when you say that there is no mention of no due process and no habias corpus in the Patriot Act, you’re telling the truth. But isn’t that just a straw dog to divert the argument away from the ugly fact that we are killing the dream of John Wayne’s legacy? Do you really want to be an agent of this new rebirth of Fascism? Scares the shit out of me, boy.