On Tuesday, August 14, a federal judge issued a disturbing ruling allowing the Federal Bureau of Investigation (FBI) to evade public accountability for infiltrating faith institutions, monitoring law-abiding people, recording sexual encounters, and then lying about all of it. Carney’s decision erodes democracy in two dimensions at once, enabling ongoing constitutional violations by the executive branch while, at the same time, eroding judicial independence.

Are they above the law?

The ruling is especially surprising given the judge’s previous criticism of the FBI for lying to him in court.

Fazaga v. FBI addressed claims by a series of southern Californians challenging a long running secret infiltration of their faith institutions by an ex-convict and undercover FBI informant named Craig Monteilh. After being promised a six figure payment to infiltrate mosques across southern California—and even to record sexual encounters with women in those communities to enable subsequent blackmail—Monteilh blew a whistle and joined a case brought by the Council on American-Islamic Relations; Hadsell, Stormer, Richardson & Renick LLP; and the ACLU of Southern California.

US District Judge Cormac J. Carney of the Southern District of California dismissed much of the case this week (leaving intact claims against individual FBI officers under the Foreign Intelligence Surveillance Act), holding that the state secrets privilege and sovereign immunity essentially preclude the suit from moving forward against the government.

News outlets such as The Los Angeles Times have featured analysis from ACLU attorney Ahilan Arulanantham, who correctly noted that Judge Carney’s ruling is “contrary to the basic notion that the judiciary determines what the law is and holds the government to it,” and that the ruling essentially “exempt[s] huge swaths of government activity [from] judicial oversight.”

Missing from most reports, however, are a recognition of the multiple ways in which Carney’s decision erodes democracy.

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Both 2012 presidential campaigns advance the legacy of Dick Cheney

Among the most tragic casualties of the war on terror is the separation of powers that our Founders envisioned to help keep America free. Not only has executive power expanded to disturbing – and profoundly dangerous – proportions in the decade since the 9-11 attacks, but Presidents from both major parties have promoted this transformation.

Rep. Adam Smith (D-WA) understands this well enough to have actively defended constitutional rights, introducing important legislation to restore due process after the latest defense authorization act allowed the indefinite domestic military detention of Americans without charge or trial. Yet in the Romney-Cheney Doctrine, he implies a contrast that is more imagined than real. He writes:

It’s no secret that Cheney was the driving force behind the Bush administration’s failed foreign policies…[O]f Romney’s 24 special advisors on foreign policy, 17 served in the Bush-Cheney administration….The last time they were in government, it was disastrous….

We can’t afford to go back to the failed policies of the past…America’s security depends on moving forward to confront the threats of the future.

While the foreign policy visions of the 2012 presidential candidates do indeed differ, the most striking element of Rep. Smith’s article is its silence on what could reasonably be called “the Obama-Cheney doctrine.”

Rep. Smith correctly notes that Mitt Romney has enthusiastically endorsed the views of many Bush-Cheney administration veterans. He does not mention the Obama administration’s alignment with its predecessor’s domestic security agenda: expanding surveillance, suppressing dissent, militarizing police and intelligence agencies, aggrandizing their powers, entrenching their leadership, prosecuting whistleblowers to reinforce secret government, and ignoring the rights of the millions of people impacted by this bipartisan assault on constitutional rights.
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When the United States championed democracy, freedom, and opportunity, it made sense to celebrate the Fourth of July.  But are we still promoting those values? If we are paragons of neither opportunity nor freedom, what exactly do we celebrate today?

Our Statue of Liberty bears an inscription welcoming the world’s “tired and poor…huddled masses yearning to breathe free.”  Our open arms which once greeted strangers (on whose backs our country was built), however, have been replaced by laws like Arizona’s SB 1070, copycat laws around the country, and the recent Supreme Court decision upholding provisions that encourage racial profiling. 

Liberty itself is a fading memory, a lyric in an anthem that few Americans today understand, even as millions sing it at sporting events and during today’s holiday.

Robert Samuelson’s Is the U.S. a land of liberty or equality? reviews a duality within America’s political culture.  Samuelson writes that “Americans’ self-identity springs from the beliefs on which this country was founded,” including values of equality and liberty that often stand in tension.  He correctly notes that “in today’s politically poisoned climate, righteousness is at a premium and historical reality at a discount,” which in turns helps “explain[] why love of country has become a double-edged sword, dividing us when it might unite.”

While Samuelson’s observation of political dysfunction is compelling, his analysis is flawed. It examines a conflict between two values, neither of which is visible in today’s United States.

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This Veterans Day, it’s worth noting how, while paying lip service to honoring our veterans, our leaders systematically abuse their legacy, expose current servicemembers to potential human rights violations, and degrade the nation they have risked their lives to defend.

The day before the PATRIOT Act’s 10 year anniversary last month, I was visiting the San Francisco Bay Area for a series of speaking engagements. The afternoon of Tuesday, October 25, I visited a journalism class at the University of California Berkeley to discuss the First Amendment. It was during the class that the Oakland Police Department began gassing peaceful protesters just a few miles down the road at Occupy Oakland. After class was over, I headed to downtown Oakland, encountered some police violence myself, and witnessed the aftermath of Iraq veteran Scott Olsen suffering a fractured skull at the hands of the Oakland police department.

It’s one thing, to use the words of President Eisenhower, for our country’s military industrial complex to co-opt taxpayer money, create entire industries dedicated to death and destruction, and skew our foreign policy to encourage war and militarism. That same industrial complex now sells to local police departments technologies initially developed for the military to use in war, from rural sheriffs’ offices using aerial drones, to monitoring neighborhoods with license plate scanners, to local police deploying the mobile sonic cannon to quell dissent in Oakland two weeks ago.

The domestic intelligence industrial complex is apparent in other, even more disturbing, ways. Under the guise of a program to deport undocumented immigrants, government agencies are constructing the Next Generation Initiative, a national identification system based on biometric data like fingerprints, facial and voice recognition, iris scans, and potentially even DNA—turning our bodies themselves as identification cards. Working with America’s local law enforcement agencies, the FBI has already rolled out this pervasive biometric data collection.

These are not the rights for which our veterans risked their lives.

For 60 years, we have prided ourselves on being the nation that ended torture and human experimentation, at the cost of a World War and tens of millions of lives. In only 10 short years, we have abandoned those principles. As I’ve written before:

Bush and Cheney succeeded in doing what neither Nazi Germany nor the Soviet Union could: eviscerate American values and undermine our grandest foreign policy accomplishments since the turn of the 20th century. And while President Obama’s aim to “look forward, not backward,” may resemble a thoughtful political compromise, it is an illegal capitulation to illegitimate political interests carrying profound consequences for human rights and freedom both in the U.S. and around the world.

Our nation’s leaders, from both major political parties, have left behind not only the prohibition on torture our veterans once fought to establish, but alsoany pretense of accountability for human rights abuses—effectively ensuring that torture and forced confessions will rear their ugly heads in the future. Forced confessions will abuse not only the rights of those false accused and wrongfully convicted, but also our justice system, which will lose whatever shred of legitimacy it still claims after having already imprisoned millions for trivial offenses while letting human rights abusers (like Judge Jay Bybee) run amok and continue to claim power.

We have lost World War II—to ourselves—in a time of relative peace, two generations after achieving victory at incalculable cost.

This is not the vision for which our veterans fought.

We give thanks today for our veterans and their sacrifices, and we remember and honor the principles they defended. They paid in blood to protect liberty and human rights. It is a shame on our nation and the world that we have abandoned those principles with such glaring indifference.