History teaches us how easily the spectre of a threat to "national security" may be used to justify a wide variety of repressive government actions. A blind acceptance by the courts of the government's insistence on the need for secrecy, without notice to others, without argument, and without a statement of reasons would impermissibly compromise the independence of the judiciary and open the door to possible abuse. 1
"Mission Accomplished," said the huge aircraft carrier banner behind President Bush in May 2003 when he announced the United States' victory in Iraq. Six months later, amid intensifying criticism over the rising numbers of American deaths and organizational disarray in Iraq, President Bush publicly disclaimed that he had ever conveyed that message, saying that the ship's crew had hoisted the banner unbeknownst to the administration. The President's people, of course, helped make the banner and approved its placement in the news camera's eye to communicate worldwide the very message the President later disclaimed. 2
The President told a White (House) lie.
And he did so to minimize mounting political embarrassment over an emerging truth of great consequence: his administration clearly lacked a realistic, coherent plan for the security and governance of "post-war" Iraq, and many Americans and Iraqis were dying as a result. 3
A year later, in an unscripted moment, President Bush conveyed an alarming message about what an American is: white in skin color. He startled listeners with his comment that some Iraq reconstruction critics "don't believe that people whose skin color
may not be the same as ours
can be free and self-govern."4
Leaving aside the self-governance issue, what emerges is a significant racial revelation. Conservative commentator George Will observed that the President "seemed to be saying that white is, and brown is not, the color of Americans' skin."5
The President removed any doubt with his follow-up remark, equating "ours" with "white": "I believe that people whose skins . . . are a different color from white
These are loaded statements by the commander-in-chief of the war on terror, a leader charged by critics with unfair racial profiling at home and human rights abuses abroad. 7
So the President's press secretary Scott McClellan, doing damage control, later explained that the President meant only that, according to critics, "the people in those Middle Eastern countries cannot be free."8
McClellan's "clarification," however, ignored the President's actual words and changed what he clearly meant, obscuring the deep racial implications of his war on terror. 9
The President's man told another White (House) lie.
Many have documented this administration's penchant for deliberate misrepresentations on national security -- in blunt terms, for lying to the American people about threats at home and abroad. 10
Some have written about other administrations, Democrat and Republican, that have misled the public about threats to the nation's safety. 11
Fewer have written about who
is to hold the executive accountable for this dissembling and how
this is to be done.
And what almost no one has closely examined in both jurisprudential and Realpolitik terms is this: If the task of holding the executive accountable to constitutional standards ultimately falls on the courts, how does the American public hold the judiciary accountable -- how do we assure that the courts actually scrutinize, rather than blindly accept, the executive's proffered justification for ostensible national security restrictions of our most basic freedoms? This under-explored question is the focus of this essay, and it opens discussion about the strategic need for critical legal advocacy and the significance of constructive public pressure on the courts.
To stimulate that discussion this essay draws a broad "strategic blueprint" for building the political coalitions and cultural momentum needed to impel close judicial scrutiny of executive national security claims. The price for failing to build those coalitions and that momentum is, I suggest, a weak judiciary, unfettered presidential power, and civil liberties disasters in waiting. The proposed blueprint delineates the "who" (a wide array of public advocates tasked with pressuring judges, and the legal process itself, to assure executive accountability); the "how" (critical legal advocacy coupled with organized media and grass roots politicking); and the "what" (judicial acknowledgment that law as interpreted and applied is not neutral or objective in controversial cases, and that, in a genuine democracy, it is the court's role to carefully scrutinize executive national security actions that curtail fundamental liberties).
Public protest is an important part of democracy, just like a free press, a judiciary, and congress.
Under our system of checks & balances when the judiciary & Congress fail in their duty it then falls to the American people to set things right.
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Call to action: No work, No school on September 11, 2008. It also includes "no shopping;" a suspension of all purchasing during the strike. 75% of our economy is consumer spending, when Bush says to shop, we must STOP!
The general strike calls for participants to "Hit the Streets." But why spend our time protesting in DC to be ignored? Unless we get in the streets outside our rep.s personal residences- who is going to care?
We need to mobilize locally- & demand national action. Few of us could go to Washington- but many of us- can go to our city halls or state legislatures- or local Congressional offices.
"It is not the function of our Government to keep the citizen from falling into error; it is the function of the citizen to keep the Government from falling into error".
U.S. Supreme Court, in American Communication Association v. Douds, 339 U.S. 382, 442
In order to get involved, here are the five best steps to take now:
1) Sign up with your email address HERE in order to get updates,
2) Mark the day on your calendar and plan to be at a protest in your community,
3) Send this URL to all your friends, post it to forums, put it on your personal pages, http://www.votestrike.com
4) Take the time to help organize a protest. We'll send news on coordinators in your community,
5) Take the lead and help organize a protest on 9/11.
II. EXECUTIVE ABUSES OF CIVIL LIBERTIES: A "STRATEGIC BLUEPRINT" FOR "NATIONAL SECURITY" ACCOUNTABILITY A. Korematsu Revisited: The "Loaded Weapon" in Post 9/11 United States
During World War II Fred Korematsu challenged the constitutionality of the Japanese American internment and lost. The Supreme Court then blindly accepted the Justice and War Departments' false assertion of "military necessity." As was later learned, the executive and military knew then that there had been no national security necessity for the mass racial incarceration and had lied about it to the public and the courts. 12
Justice Jackson, in his ringing dissent in Korematsu's case, warned that by deferring to the executive, "the Court for all time has validated the principle of racial discrimination in criminal procedure and of transplanting U.S. citizens. The principle lies about like a loaded weapon
ready for the hand of any authority that can bring forward a plausible claim of urgent need."13
The Executive Branch has worked hard to protect U.S. people and institutions. It also has a long, dark history of dissembling to the American people about national security in order to justify what might otherwise be unjustifiable. Some of this dissembling, more than white lies, has had harsh and far-reaching consequences -- witness the incarceration of 120,000 innocent Japanese Americans during World War II, the government's destruction of citizens' reputations and lives during the McCarthy communist witch-hunt era,14
the tens of thousands of American (and Vietnamese) deaths after the government's fabrication of low fatality counts to maintain public support for the Vietnam war,15
and the politically popular smearing and incarcerating of U.S. citizen Wen Ho Lee on trumped-up nuclear espionage claims. 16
And now President Bush and his administration have brought forward many "plausible," yet largely false, "claims of urgent need" to justify aggressive actions. The two instances of White House dissembling about national security described in the Introduction are the tip of proverbial iceberg -- much of the danger lies unseen just beneath the surface. Consider, for example, the apparently falsely stated grounds for the post-9/11 indefinite detention of U.S. citizen "enemy combatants" Jose Padilla and Yasser Hamdi without charges or hearing or access to counsel; the false branding as "terrorists" of all detainees in Guantanamo as grounds for indefinite incarceration without charges, access to counsel or judicial review; and the government news leaks of falsified claims of espionage against Muslim U.S. Military Chaplain James Yee, who ministered to the Guantanamo Bay detainees. 17
Consider also the President's unequivocal statements about Iraq's readily available weapons of mass destruction as the justification for the U.S. "pre-emptive" war against Iraq, and the executive foot-dragging in identifying the high White House or Cabinet officials who leaked CIA operative Valarie Plame's identity as payback for former Ambassador Joseph Wilson's criticism of the President's false statement about Iraq's nuclear threat. 18
B. Checking the White House: The Judiciary's Complex Role
The Executive Branch needs broad power to defend the country -- an extraordinarily difficult and demanding task. At the same time, in a constitutional democracy, with a bill of rights, the president's national security power cannot encompass the scapegoating and vilification of unpopular groups or lying to the public and Congress to legitimate aggression against innocent people at home or abroad. National security abuses of this kind destroy human lives and threaten the very fabric of U.S. democracy. And yet history has shown that, unless checked, a president facing a fearful public will find it initially politically advantageous to denigrate the civil liberties of those characterized as "outsiders" in the U.S. 19
The initial question then is who will check the President and his or her people? During a time of national fear, who will hold the Executive accountable for its national security abuses or, perhaps more important, prevent them from occurring? More particularly, who will hold the President accountable for lies aimed at legitimating or covering up abuses of power?
There are two quick answers, found in most civics books. The first is the electorate -- it can vote out the President at the next election. But that often is years later, and only if it is the President's first term and if executive dissembling is publicly revealed and constantly criticized. The second quick answer is the Judiciary. It is the role of the courts to hold the Executive to constitutional dictates. 20
But what is the reality? The simplistic answer, that the judiciary checks the executive, is rooted in a widely-held fallacy -- that as a separate co-equal branch of government it is politically independent and that its judgments are necessarily neutral and objective. Bush v. Gore21
and Korematsu v. U.S
are just two of many cases that starkly reveal that fallacy by exposing the political underpinnings of judicial decisionmaking in controversial cases. It is not that nine black-robed men and women simply vote their personal and political preferences. The legal method imposes decisional constraints. To maintain public legitimacy judges have to speak in the language of statutes, rules, and case precedents. As many commentators have observed about Bush v. Gore
, however, the moorings of the legal method are a weak tether in hot political cases. 23
The intricacies of stare decisis and the complexities of the three-tier standard of equal protection review, for instance, are manipulable by sophisticated, politically attuned judges. 24
Indeed, across the arc of U.S. legal history, as Justice Jackson's loaded weapon warning highlights, the judiciary has exhibited the inclination to twist the Bill of Rights and to turn a blind eye to popular executive civil liberties abuses during times of national fear, deferring to the executive's unproven claims that "national security" justifies its actions. 25
But not always. Sometimes courts have fulfilled their role of "watchful care" over fundamental liberties. 26
And at other times, in the very same case opinion, the Supreme Court has pronounced the need for heightened judicial scrutiny and then pulled back in its actual analysis -- as it did in the 2003 "enemy combatant" case, Hamdi v. Rumsfeld
Why the judicial dissonance?
C. The Significance of Public Pressure and Critical Legal Advocacy
The judiciary's historic ambivalence toward executive national security dissembling is explained in part by the philosophical precept of the "noble lie,"28
which, for the Bush administration, seemingly justifies elite policymaker lies to the public "for its own good." It is also explained by the dynamics of public advocacy and judicial decisionmaking.
So the Realpolitik question is, what impels the courts in controversial cases to carry out their constitutional duties -- to hold the executive accountable for oftentimes politically popular excesses? More particularly, what impels courts ruling on national security and civil liberties challenges sometimes to choose "heightened scrutiny" of the executive's national security claim, thereby requiring the government to seriously account for its actions, rather than (as is more often the case) "minimal scrutiny," thereby largely deferring to the government's explanation without real proof?
The crucial judicial choice between heightened or minimal scrutiny -- an ostensibly neutral aspect of the legal process -- is influenced in two related ways. First, the choice is partly influenced by established legal methods -- case precedents and the language of legislative acts. 29
Second -- and the focus here -- in endeavoring to choose the appropriate level of judicial scrutiny, courts will often find that the traditional legal method offers considerable "play in the joints" -- that it does not clearly dictate the "correct" level of scrutiny in controversial cases. 30
Rather, critical legal advocacy and public pressure about the necessity for executive accountability in courts of law, in light of the particular controversy, often provide the tipping point.
As illuminated by the Hamdi
"enemy combatant" cases and the prosecution of Dr. Wen Ho Lee,31
public advocacy emerges in two realms. The first realm is critical legal argument by lawyers and civil and human rights organizations aimed at shaping judges' threshold selections of the level of judicial scrutiny, and ultimately the judges' responses to the specific legal challenges to executive actions. As a complement to usually narrow traditional legal arguments, this kind of critical legal advocacy aims to reveal what is really at stake, who benefits and who is harmed (in the short and long term), who wields the behind-the-scenes power, which social values are supported and which are subverted, how political concerns frame the legal questions, and how societal institutions and differing segments of the populace will be affected by the court's decision. 32
The second realm of advocacy is a species of public education: journalist essays, pundit commentaries, public letters to the editor, clergy sermons, scholars' op-ed pieces, community workshops and school forums, all critically analyzing and advocating the need for the courts to carefully scrutinize the Executive's national security actions. The goal is to create in the public culture a compelling sense that it must be the courts that exercise "watchful care" over our constitutional liberties 33
-- that the Executive is charged with protecting our people and institutions from threats from without, and in turn that our courts are charged with protecting our liberties from threats from our own institutions.
The timing of both kinds of public advocacy is crucial. Advocacy of accountability is imperative at the "front end" and at the "back end" of apparent national security abuses:
The real bulwark against governmental excess and lax judicial scrutiny, then, is political education and mobilization, both at the front end when the laws are passed and enforced and at the back end when they are challenged in the courts . . .
In today's climate of fear and anger, our first task in protecting both people and key democratic values is to be pro-active at the front end -- to prevent post-modern forms of the internment. We need to organize and speak out to assure that the expansive new national security regime does not overwhelm the civil liberties of vulnerable groups and move the country toward a police state. We need to mobilize and raise challenges to prevent . . . secret incarcerations, particularly en masse. Through political analysis, education and activism, our job is to compel powerful institutions, particularly the courts, to be vigilant, to "protect all."
Our second task is to be assertive at the back end -- to call out injustice when it occurs, to spell out the damage it does to real people in our midst and to our constitutional democracy, and to demand accountability to principles of equality and due process. 34 D. Learning from Korematsu: Four Tasks of Judicial Vigilance
In 1983, aided by a major "back-end" grass-roots political education effort and a Congressional study commission, Fred Korematsu reopened his 1944 case on the basis of newly discovered World War II documents unequivocally showing that the government had lied to the public and the courts about the military necessity for the internment. 35
A huge struggle among lawyers in the Justice Department had erupted over whether to tell the Supreme Court the truth that there had been no military necessity, or instead to be party to the deliberate "suppression of evidence."36
High officials in the Attorney General's office chose suppression.
In ruling on Korematsu's coram nobis petition in 1984, federal judge Marilyn Hall Patel declared the original Korematsu v. U.S. case a "manifest injustice." In her ruling, Judge Patel echoed Justice Jackson's "loaded weapon" warning forty years earlier about government accountability. The Korematsu injustice
stands as a constant caution that in times of war or declared military necessity our institutions must be vigilant in protecting constitutional guarantees. It stands as a caution that in times of distress the shield of . . . national security must not be used to protect governmental actions from close scrutiny and accountability. It stands as a caution that in times of international hostility and antagonisms, our institutions, legislative, executive and judicial, must . . . protect all citizens from the petty fears and prejudices that are so easily aroused. 37
With these cautions in mind for post-September 11 America, the essence of Justice Jackson's warning resonates today: How will the courts prevent bald Executive claims of "national security" from lying about like a loaded weapon aimed at our cherished liberties?
The complex jurisprudential and Realpolitik approach advanced in this essay -- organized political pressure coupled with critical legal advocacy -- does not aim to pressure courts to reach a particular legal result. Rather, it aims to pressure courts to undertake four "process" tasks. The first is to employ tools of critical legal inquiry to unearth and then explain what is really going on in the controversy and to articulate what is at stake politically and socially. The second task is for courts to acknowledge that sometimes a presidential administration distorts information and even lies to unduly expand its power and shield national security abuses from public view. The third task is for courts to recognize that traditional legal analysis, often largely devoid of context and visible value judgments, does not itself dictate a politics-free, neutral result. Social value judgments, philosophical commitments, political concerns, as well as perceptions of the government's role during hard times, all play important parts. In this light, the final task is for courts to carefully and openly scrutinize executive actions with dual goals in mind: to afford the Executive broad leeway in its efforts to protect the nation's people, and simultaneously to call the Executive to account publicly for apparent transgressions of civil liberties and human rights under the possibly false mantle of national security.
Only then can the democratic United States genuinely say, "Mission Accomplished."