Playing Chicken With the First Amendment

As Americans, most of us take our First Amendment right to freedom of speech for granted.  We forget that there are many nations around the globe where political speech is restricted, and where speech critical of the government is banned.  Here, however, we enjoy the clash of words when we debate contentious issues; at least we used to.  I am not certain this premise holds true today, though.

Recently, an officer in a privately-held national company made a statement about his personal beliefs.  These beliefs were regarding the right of same-sex couples to marry.  I won’t delve into my own personal opinions and beliefs on this subject, rather I wish to simply take stock of the statement and public responses to it, both in support of it, as well as against it.

It is safe to say that the statement may not have been made if the company was a public corporate entity, traded on the markets.  It is not, though.  It is owned entirely by private individuals, and is not traded.  This means that an outcry from shareholders, or a negative hit on stock values due to market reaction is not a self-imposed restraint on public commentary on hotly-contested issues.

The First Amendment guarantees us the right to speak freely on any matter, from gun control to same-sex marriage to criticism of the government.  Each of us has the inherent right to voice our opinions, air our grievances and grind our axes to our hearts’ content.  This includes the corporate officer/family member who stated his support of the traditiona/Biblical definition of marriage.  This includes that company, or its owners, the right to financially support causes and beliefs that some of us reject.  In fact, such oppositional speech is at the core of the First Amendment.  That we must allow one another the freedom to speak our mind on any issue, whether we agree with it or not.

In the last several days, many Americans have taken a stand against the person’s public statement.  They have decided to boycott and protest the stated position, perceived as an attack on the rights of same-sex couples to marry.  This speech, as well as the decision of many to boycott or protest the company, is well within their free speech rights.  Similarly, many Americans have also opted to support the company’s (or, rather, its owner’s) statements by exercising their freedom to speak and to buy the company’s products in a show of solidarity.  Both of these groups are doing the right thing in taking action in support of their own beliefs.

The line must be drawn, however, when a government official makes statements not merely condemning a person’s speech, but going as far as to state that the company will be barred from operating within their jurisdiction.  This, of course, is patently unconstitutional.  The government has no right or privilege to so restrict either commerce or speech.  It has a chilling effect and serves only to intimidate or bully individuals, and their businesses, from exercising their First Amendment right.

If an individual decides to give or refuse to give, their money to a business, that is their own personal decision.  The government’s role is neither to foster or prohibit freedom of speech, the government is not entitled to discriminate against an individual, group or business because of political causes.  If a company, for example, were to take a public stance in favor of abortion, and certain elected officials, on the record, stated that such businesses would be run out of town in their municipalities, there would be a well-deserved public outcry.  This is not only warranted, but should be expected.

The level of tolerance to opposing speech has waned of late, this is true not only in the District of Columbia and in the various State legislatures, but also in Main Street America.  We have but to look at the commons of the internet to see the vitriol and pejoratives hurled at those with opposing views.  Rather than discussing the issues in a civil and respectful manner, many have resorted to animosity and personal attacks.  These sorts of arguments have served not to win over the minds of those with a differing view, but have further hardened and entrenched their opponents.  This is not limited to any particular political group, but, rather, each political view is well-represented by such poor advocates for their causes. 

If we wish to be able to engage in worthy debate, to address our concerns in a meaningful way, then the spite and intolerance must cease.  We would not have had a Declaration of Independence or a Constitution & Bill of Rights if our Founding Fathers had been so polarized that they refused to acknowledge the validity of others’ arguments.  For some reason, many Americans suffer under the historical delusion that the gentlemen in Philadelphia, New York, etc. skipped arm in arm down the path to the creation of the United States of America.  The correspondence and records we have access to are a splash of cold water on this illusion.  Those men were opinionated and were convinced that their individual views were right.  There were epic debates, both on and off of the floors, where these men contested their differences with articulate speech and persuasive arguments.  Had they resorted to the sorts of tactics relied upon today, there would have been deadlock and impasse. 

Ultimately, the crux of debate on any issue of essential liberties is that of tolerance.  Tolerance does not dictate that we agree with one another, but tolerance does dictate that we allow others the same freedoms we would ourselves enjoy and exercise.  We must tolerate even the most disagreeable speech and opinions, we must acknowledge others’ rights to their beliefs, as much as we protect our own. 

The climate of intolerance and personal attack must be overcome.  We must each extend our hand to our fellow citizen and acknowledge their belief, and their right to speak about that belief.  It is most imperative that we do this not when we are in full accord and agreement, but rather when we are in opposition to them.  This is the only way forward if we wish to have a people, and a government, dedicated to the core principles of liberty and equality espoused by the Constitution.

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The Problem of Voter Apathy in the United States

“Let each citizen remember at the moment he is offering his vote that he is not making a present or a compliment to please an individual–or at least that he ought not so to do; but that he is executing one of the most solemn trusts in human society for which he is accountable to God and his country. ” — Samuel Adams

In 1789 the United States became the first modern constitutional republic.  In the years since then the citizens of the United States have enjoyed the right to elect their fellow citizens to office to represent them in the governance of the nation.

Initially only white men owning property could vote, then this right was extended to white men who didn’t own property.  Later, non-white men were allowed to vote.  In 1913 the Seventeenth Amendment to the Constitution took the selection of Senators away from State legislatures and allowed each State’s citizens to elect their Senators directly.  Poll taxes were abolished, as they created an impediment to voters of lower socioeconomic status.  Women were allowed to vote, as were Native Americans.  Finally, the voting age was reduced to eighteen.

Despite this expansion of the electorate the United States has seen a consistent decline in voter turnout.  Despite extending the most important and vital of rights in a republic or democracy, significant numbers of Americans have declined to exercise that right.  Today the United States has one of the lowest voter turnouts in the free world, with an average of forty-eight percent (48%) of registered voters going to the polls.  Presidential elections tend to have higher than average turnouts, and the 2008 Presidential election had the highest turnout since 1968, which bucked the general downward trend.  In November we shall see if that turnout will be matched, or, hopefully, exceeded.

Some experts have attributed voter apathy to various factors, depending on which polls, studies, and articles you review.  The two most commonly named culprits are ‘voter fatigue’ and a feeling that their votes don’t count.  There is also a significant lack of interest in Congressional, State and municipal elections, with some years showing turnouts as low as forty percent (40%).  In the 2010 US Census, only sixty-five percent (65%) of voting age citizens reported being registered to vote.  This means that approximately 73.5 million Americans are not even registered to vote, let alone turning out at the polls.

Voter fatigue is believed to arise from the frequency of elections at the local and federal level.  Every year the citizenry are hammered by a barrage of campaigns on various issues, and, in many cases, are faced with multiple elections in a given year.  In the age of a ‘TL;DR’ (Too Long; Didn’t Read) mentality it can be surmised that many Americans are not educating themselves as to the details of each issue showing up on the ballots.  This is compounded by the cacophony of often misleading campaign ads, many of which are focused on issues that are designed to polarize the voters.  In this day and age most ads are not intended to inspire, to encourage voters to vote *for* something or someone, but rather to scare people into voting *against* something , citing dire consequences should they fail to do so.  These sorts of tactics are not intended to educate voters on the facts surrounding issues and candidates, but rather provide only a façade, a mere whitewash on the issues.  It should be noted, however, that such campaign tactics are intended to, and are sometimes successful, in ‘energizing the base’ and encouraging voter turnout.

We have observed a common thread among many Americans, spanning the political spectrum:  The establishment ignores the middle, the establishment panders to monied interests and special interest groups.  Some of this may have a basis in fact, some may be conjecture or speculation, but the sentiment is there and should not be dismissed out of hand.  The Citizens United decision by the Supreme Court and the concomitant rise of the Super PACs certainly play into the hands of those who believe that those with sufficient affluence can ensure greater access to politicians and greater influence over the electoral process than the average citizen.  If people sincerely feel that their votes will not make a difference, then there is no motivation to cast their ballots.

It is my supposition that the campaigns have alienated many Americans, especially those with more independent or moderate leanings.  The media pundits speak of these voters as ‘swing voters,’ vital to the election of their candidates, yet neither the Republican nor Democrat parties’ efforts on capturing this body have not proven successful in any meaningful or significant way.  Interestingly, in the past few election cycles we have seen the creation of voting blocs such as the Tea Party, and the libertarian-leaning movement supporting Ron Paul.  These groups have been very successful in making inroads into the traditional GOP establishment, disrupting the ‘politics as usual’ mentality.  Many of these individuals are motivated by a sense of disenfranchisement, that their voices are not heard by the GOP as a whole.  Similarly, the Democrats have seen the rise of groups such as the Occupy Wall Street movement, whose members have rebuked the notion that their votes can be relied upon by the left’s political establishment.  Should these trends continue in the future, it may be that one or more viable political parties may arise to challenge the dominance of the traditional two-party paradigm.

Overall, those who have traditionally held the reins of power are now faced with a choice:  to continue in their ossified methods or to embrace the broader views of their constituents.  To choose the former would, if current trends prove to have staying power, alienate an appreciable percentage of their voting base, while choosing the latter may well serve to draw more support from independents and moderates.  Continuing to play to their more extreme wings will serve only to keep voters at home if they don’t believe either party represents them in Washington DC.

Perhaps the most effective method of combating voter apathy is to engage our fellow citizens, to emphasize the tremendous need for them to actually exercise their right to vote.  If we, ourselves, can each get even one or two more people active in the electoral process it could engender a significant change in the way things work.  Explain to them, regardless of their political persuasion, that the only way for their concerns to be addressed, to make their voices heard, is to cast their vote. Of primary importance to me, even to the detriment of my own personal politics, is to get Americans engaged in the process.  Our system of constitutional governance relies upon the involvement of the People, and upon the exercise of the sacrosanct and essential liberty of the right to choose those who govern.

Second Amendment Quote of the Day, July 31, 2012

“I ask, Sir, what is the militia? It is the whole people. To disarm the people is the best and most effectual way to enslave them.” — George Mason

I believe this quote embodies the sentiment of the overwhelming majority of the Framers of the Constitution, as recorded in the various debates surrounding the adoption of the Constitution and the Bill of Rights.

The Militarization of Domestic Law Enforcement Agencies

We have seen the photographs and videos from the OWS protests across the nation.  Police armed with assault rifles and grenade launchers.  Police outfitted with military uniforms and body armor.  Police using this equipment against the (typically unarmed) protesters.

Most people don’t even ask the simple, but glaring question:  Where do the police get this equipment?  Who is funding it?

The answer to that question lies in the National Defense Appropriations Act for Fiscal Year 1997, as well as 10 USC 2576(a).  Under color of law, the Department of Defense now has a Law Enforcement Support Office (LESO), which, in its mission statement provides ‘excess Department of Defense (DOD) personal property to federal, state, and local law enforcement agencies (LEAs).’

This program allows the LEAs to purchase, for a cost of pennies on the dollar, ‘surplus’ military equipment.  Further, the DoD is authorized to donate such equipment to LEAs for free.  Since 1997 the DoD has transferred $2.6BN of equipment and hardware to LEAs.  The equipment consists of armored vehicles, weapons, aircraft, watercraft, body armor, and other types of gear and hardware.  In 2011 alone, the amount of equipment was valued at almost half a billion dollars.  The number of requests and transfers has increased exponentially over the last few years.

https://www.dispositionservices.dla.mil/rtd03/leso/Program%20Statistics.ppt

Think about that.  $2,600,000,000.00 of your Federal tax dollars are being spent to equip police with military hardware.  Congress’ intent was that such equipment should primarily be used in counter-terrorism and drug operations, when they could reasonably expect considerable armed resistance, but also allowed for ‘suitable use by the agencies in law enforcement activities.’  Thus, the police are allowed to use this equipment in other situations, such as when facing off against unarmed protesters.

Thus you end up with a quasi-military force that is entirely exempted from the Posse Comitatus Act of 1878.  Of course, it is noteworthy that since 1878 the powers that be in DC have found ways to whittle away at the Act and its limitations against the use of federal military personnel in domestic policing actions.  These limitations were further eroded by the formal establishment of the National Guard, which, unless federalized by the President, are solely under the command of the governors of the various States in which the Guard units are located.

The militarization of law enforcement provides a heavily armed, heavily armored police force that avoids the uncomfortable scrutiny that would accompany utilization of the National Guard or active duty military forces.  The local municipalities can simply say, ‘We merely responded with a strong police presence.’  To the uninitiated, and even to some of us who are far more experienced, the difference seems to be merely academic.  When police arrive on scene in military uniforms, carrying military weapons, and backed up by armored vehicles then we must ask ourselves whether or not any sort of distinction is left to be made.  Of course, the police, in such situations, have far greater power than the National Guardsmen would.  They have powers of arrest and detention, powers to deprive someone of their essential liberties and Constitutionally-guaranteed rights.  Even more troublesome is that they, unlike the military, exercise those powers on a daily basis, and are far more desensitized to the Constitutional implications of their actions.

It should be a simple thing to make a request of your local police force, to ascertain what equipment they have received, what funds have been expended in acquiring such equipment.  It is our duty, as citizens, to question the actions of our government and its agencies.  Let them know we are watching.  Let them know that we are paying attention.

In the face of such firepower it is vital that we do what we can to check the continued militarization of the police forces, as it represents a paradigm shift in the nature of what the police are intended to do.  They are to ‘protect and to serve,’ not ‘subjugate and intimidate.’

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Second Amendment Quote of the Day, July 30, 2012

Today’s Second Amendment support quote brought to you by the notorious gun nut and conservative ideologue JFK.

“Today, we need a nation of Minutemen, who are not only prepared to take arms, but citizens who regard the preservation of freedom as the basic purpose of their daily lives, and who are willing to consciously work and sacrifice for that freedom.” — John Fitzgerald Kennedy

Drones, the Constitution and the matters of the al-Awlakis and Samir Khan

On September 30, 2011 US citizens Anwar al-Awlaki and Samir Khan were killed in a US drone strike in Yemen.  On October 14, 2011 Abdul-Rahman al-Awlaki, a sixteen (16) year old US citizen, was also killed in a drone strike in Yemen.  These three men, if we call teenagers men, were killed without being formally charged, without conviction, and without even the merest nod to the Due Process protections in the Constitution and its Amendments.

In the time since the killings, additional information has come to light regarding the process for targeted killings by drones.  As I understand it, this process is exclusive to the Executive branch, and, specifically, the President (in this case Obama) made the final determination as to who is targeted for assassination.

To be clear, there is no judicial oversight, no Congressional oversight, no public oversight of this process.  Despite Attorney General Eric Holder’s disputations to the contrary, there was not even a shred of legality providing a fig leaf of Constitutional modesty to these executions.

The Constitution, and the Amendments thereto, are the supreme law of the land.  Why?  The Supremacy Clause in the Constitution, Article VI, Clause 2, says so.

Also, the actions of Anwar al-Awlaki and Samir Khan could best be described as treasonous.  Fortunately, the Constitution defines treason:  “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.”  The Constitution also states: “The Congress shall have power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.”

So, we know what treason is.  We know that there is some information available that might be sufficient for the United States government to have brought charges of treason against al-Awlaki and Khan.  But they didn’t.  No indictment, no warrant issued, no presentation of evidence, and, most importantly, no conviction.  Maybe they weren’t nice guys.  Maybe they were, in fact, engaged in acts of treason against the United States.  We don’t know, as we never saw the evidence and they were never convicted of any crime.

The crux of the matter is this:  Citizens are entitled to the protection of their rights, as set forth in the Constitution.  The rights implicated by these targeted killings are:
Fifth Amendment:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury…nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Sixth Amendment:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Eighth Amendment:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
Fourteenth Amendment, Section 1:

1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

So, let’s take a look at this:
1) Treason does not deprive a person of Citizenship.

2) Even alleged traitors are entitled to Due Process of law.

3) This Constitutional right does not end at the border, it s a right of the Citizen not just Citizens located in the United States.

4) The United States did not provide Due Process of law to al-Awlaki. He was not indicted by a grand jury, he was not allowed to enter a plea of not guilty. He was not afforded a right to counsel. He was not even tried in absentia. He was never convicted of treason or any other crime.

5) The President of the United States ordered the killing of a United States citizen without regard to that Citizen’s Constitutional rights.

We have a word that describes the taking of a human life without legal justification.  That word is murder.  The United States government murdered three citizens despite the numerous legal protections they were afforded by the Constitution.

Where does this leave us? Did the President commit an impeachable offense?  Did any of the other elected or appointed officials violate their oaths?  Did they break the law?  What about any military personnel that may have been involved?  Did they violate the Uniform Code of Military Justice?  What if  government contractors were involved, are they criminally liable?

Article 2, Section 4 states: The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

I suggest that the assassination and murder of any US citizen, especially a citizen deprived of Due Process, qualifies as a high Crime, which is an impeachable offense.  Similarly, any military or civilian personnel who were involved, and who did not hold office at the time, should be prosecuted under existing criminal statutes.

As of yet, however, the only action taken has been that Ansar al-Awlaki’s father, Abdul Rachman’s grandfather, and the ACLU have filed a claim against the government for the killings.  I will be following the progress of this case and will likely post about it here at some point in the future.

A few words about Syria, Russia and the United States.

We hear about Syria and its civil war on a daily basis now.  If we listen closely, in Washington DC some of our elected officials and political pundits are beating the drums of war.  It is a simple matter of national actors conducting themselves according to national interest. The very basic rational actor model, in fact.  The question this presents is:  What are the national interests implicated in the Syrian conflict?

For Bashir al Assad, Syria’s ‘President,’ it is a matter of the survival of his regime.  He inherited his office from his father, who was well-known for his willingness to crush opposition.  It seems the current Mr. Assad has that same willingness, and he has utilized much of his military capability in his attempt to silence the ever-growing opposition to his rule. 

For the Syrian opposition, it is a desire for change.  Perhaps, we might hope, for democratic or republican rule.  There is no core to the opposition, around which all have gathered.  Rather, there are various groups, some armed and others unarmed, that make up the opposition as a whole.  We, in the United States, remain blissfully unaware of the identities of the primary leaders of the opposition within Syria, and do not know their motives or their intent for a post-Assad government.  What we do know is that some of them are being supported by Iran, others by Turkey, some by Saudi Arabia, and, perhaps, they may also be receiving munitions and supplies from Western powers.  In any event, it is clear that there are numerous outcomes that must be weighed.  First, Syria might end up like Lebanon, with a very weak government, made up of numerous competing factions, open to significant outside influence.  This could end up with Syria, like Lebanon, becoming a location for war by proxy between various outside powers.  There is the possibility that Syria could end up with an Islamic theocracy, similar to Iran.  Of course, there is also the possibility that Syria could become a true democracy.  In all honesty, the opposition is not united, therefore we can only speculate as to which outcome is most likely.  Again, all we have now is the opposition wants the Assad regime out of power.

Various nations in the region have a stake in Syria.  Iran could use Syria as a stepping stone in greater Shia influence, while Saudi Arabia can do the same, but with Sunni Islam.  Turkey certainly has a desire to ensure that a stable government is put in place, but given Turkey’s current political climate, that could also take the form of a less secular, more theologically-oriented scheme.  Israel has remained rather quiet on the whole affair, though they have concerns about Syria’s military stockpiles, particularly missiles and chemical weapons.

The two biggest players, the United States and Russia, are gradually putting pieces on the chessboard.  These two nation states have interests in the outcome of the struggle in Syria.

Putin is not a punk, he is very intelligent and very wily. He did not rise to his position for no reason at all. He worked the political machine, and with a combination of his brains and a lack of reluctance to intimidate, he became the leader of Russia, an autocrat in all but name. Do not underestimate him. He most certainly has the capacity to force any impasse to his advantage, if he can call the collective bluff of the US and its allies.

Having said that, the simple truth is that there is blood in the water. The United States is not secure in its position of primacy as global hegemon, this is due to myriad factors, not least of which is the lack of political will, not just from the President, but also from Congress and the people themselves. As I mentioned previously, all we have is bluff. While Russia (and China) have continued to modernize their forces, producing aircraft and other weapons platforms that can challenge our own (i.e.- Russian 4.5/5 gen fighters that are an even match for ours). While we have sat upon our laurels, patting ourselves on the back for winning the Cold War, those nations have undertaken massive infusions of capital and other resources to modernize and make their militaries a more significant threat to ours than at any time in history, except perhaps immediately after World War II.

Russians have always respected strength when coupled with a will to use that strength. The United States is still strong, but no longer willing to assert itself. Thus, Russia sees an opportunity to increase its power, influence and relevance abroad. Any state actor would take advantage of such a situation, and would find it in its national interest to pursue whatever opportunities were available to improve its position internationally.

Personally, the outcome of the 2012 Presidential election is not a game-changer, as Romney has been as militant as Obama in their rhetoric about Syria.  I do not believe Romney will fare any better than Obama in this situation. It is even possible that a more interventionist policy would serve only to exacerbate, rather than ameliorate, the current standoff.

Those who pay attention to the details know that Russia is committed to supporting the Assad regime, or, at a minimum, committed to insuring its position of influence and patronage with any successor regime/government. To Russia, this is of vital national importance. On the other hand, the matter of Syria, to the United States, is merely another distraction. It is highly unlikely that the United States will commit the resources necessary to overcome Syria’s rather robust air defenses, which, if rumors are to be believed, are, in part, being operated or ‘advised’ by Russian personnel, particularly the S300 systems currently in place. Russia has also committed other forces on the ground to protect Russian nationals and interests within Syria’s borders. Russia is now sending a flotilla to make a statement. That statement is clear, “We mean what we say.”

Will the United States challenge that statement? Will the US confront Russia militarily? Doubtful, especially in light of the current warmer Sino-Russian relations, coupled with a cooling of affections between the US and China. The old triangle model still applies. Two of the three can bludgeon the third. We used China in the Cold War to stymie Soviet aspirations on numerous occasions, thus Nixon’s now famous trip to China. Given that both China and Russia are committed to preventing US intervention in Syria, it is unlikely that we will confront that commitment militarily with more than a token display of force as saber rattling.

In short, taking a position of intervention in Syria is a trap. It is a trap that we cannot escape without one of two results: 1) Going to the brink of war, or war itself, with Russia and/or China to force them to back down; or 2) Backing down ourselves. It is a zero sum game, and the United States stands to lose significantly in either scenario.  

What is the best way to avoid this situation?  Simple, let Syria’s war play out and avoid getting involved militarily.  Our primary concern should be limited to the disposition of any unconventional weapons in Syria, which is a concern Russia also shares.  Rather than arraying ourselves in opposition to Russia, we should work with them to ensure that the chemical weapons stockpiles are secure and will not fall into the hands of anyone else.