Real Homeland Security

What is it that we Americans stand for? What is it about our nation that makes us most proud? What is it that makes other nations of the world respect and admire and emulate us? It is our unparalleled commitment to personal freedom and to the dignity of the individual. It is captured in our guarantee of freedom of speech, freedom of religion, due process of law, equal protection of the law, and freedom from unreasonable searches and seizures and cruel and unusual punishments. We are the beacon to the world because we aspire to be good and fair and just to one another. That is who we are and who we want to be.

We do not always live up to our aspirations. At times, we have embarrassed ourselves and tarnished our image. We have brutally persecuted dissenters, interned innocent persons, suspended habeas corpus, intrusively investigated innocent individuals and recklessly invaded reasonable expectations of privacy, we have even tortured our fellow human beings. We are a well-meaning but imperfect nation. We strive to be good, but we are only as good as our people, our leaders, and our institutions enable us to be.

Presidents have a wide range of official advisors, each with a designated portfolio. There is a Secretary of Defense, a Secretary of Labor, a Secretary of Energy, a National Security Advisor, and a Domestic Policy Advisor, to name just a few. The next president should create a brand new position, which should become a permanent part of the Executive Branch in the future: a Civil Liberties Advisor.

Certainly, matters of defense, national security, transportation, energy, labor, domestic policy, interior, agriculture, commerce, education, veterans’ affairs, the environment, and management and budget are important presidential concerns. But so too is the preservation of our civil liberties. It is past time for the Executive Branch forthrightly to acknowledge this responsibility by ensuring that every administration shall henceforth have within its highest councils a respected public official whose charge it is to ardently and credibly defend our civil liberties against all comers.

Many presidential administrations have included high-level officials who have been strong advocates for civil liberties, even though this was not their explicit job description. Throughout our history, such officials have made a real difference. During World War I, for example, the administration of Woodrow Wilson launched a devastating campaign to squelch dissent. Although the Department of Justice vigorously supported this campaign – prosecuting some two thousand individuals for criticizing Wilson’s war policies, several key figures in the Department – most notably John Lord O’Brian and Alfred Bettman – effectively moderated the government’s campaign of repression.

Some years later, Francis Biddle, who served as Franklin Roosevelt’s Attorney General, eloquently championed respect for individual liberties from within the White House. At the outset of World War II, Biddle declared that “every man . . . who cares about freedom must fight” to protect it “for the other man” as well for himself, and pledged that the nation would “not again fall into the disgraceful series of witch hunts which were such a dark chapter in our record of the last war.” Biddle vigorously opposed the prosecution of dissenters, the mass detention of enemy aliens, J. Edgar Hoover’s effort to authorize unbridled loyalty investigations of American citizens, and the internment of Japanese-Americans. Biddle did not always prevail – he failed most notably on the issue of internment – but he made a critical difference in our nation’s policies.

A quarter-century later, in the wake of the demonstrations at the 1968 Chicago Democratic Convention, great pressure was brought to bear on President Lyndon Johnson’s Attorney General, Ramsey Clark, to prosecute the leaders of the demonstration. Clark refused, concluding that they had done nothing unlawful. A year later, after Richard Nixon appointed John Mitchell as Clark’s successor, the government filed conspiracy charges against those who had allegedly planned the protests. Reflecting the change in leadership, Will Wilson, Mitchell’s assistant attorney general, observed that the “trouble” with Ramsey Clark was that he was “concerned with the rights of the individual.”

There are many other examples. In 1947, President Harry Truman caved to public pressure and political self-interest when he promulgated the federal loyalty program. Three years later, after his inner circle began to include voices more sympathetic to civil liberties, he vetoed the McCarran Internal Security Act of 1950, explaining that the legislation was the product of public hysteria and would lead to “Gestapo witch hunts.” (The act was passed over his veto). Thereafter, he boldly confronted Senator Joseph McCarthy, warning that all Americans were in peril “when even one American – who had done nothing wrong – is forced by fear to shut his mind and close his mouth.”

Too often in our history, presidents have excluded voices supporting civil liberties from their highest councils. In some sense, this is predictable. The preservation of civil liberties usually involves protecting the rights of dissenters, minorities, and outsiders. It is generally politically expedient to look the other way when the liberties of such persons are denied. But as Francis Biddle astutely observed, “every man . . . who cares about freedom must fight” to protect it “for the other man” as well for himself. This is true even of presidents, or at least the good ones.

Administrations that marginalize or silence such voices are bound to err, often grievously. It is a common phenomenon that when like-minded people deliberate among themselves, they are likely to gravitate toward extreme positions. This has been clearly – and quite painfully – demonstrated by the Bush administration, which did its best to exclude any trace of support for civil liberties in its march to its secret NSA surveillance program, denying habeas corpus to those detained at Guantanamo, secretly authorizing torture and the use of secret prisons, and the abuses of the Patriot Act. Would all this have happened if some respected senior official within the White House could credibly have said, “No. This is not right. This is not what we Americans do.”?

Some may object to the idea of an official Civil Liberties Advisor (or a Council of Civil Liberties Advisors analogous to the Council of Economic Advisors) on the ground that we already have an Attorney General, a Legal Counselor to the President, an Office of Legal Counsel, and a host of other lawyers in the Executive Branch. Moreover, the president himself is often a lawyer, and as with Woodrow Wilson and perhaps Barack Obama, sometimes even an expert in constitutional law. But all of these officials, presidents included, have mixed and often conflicting agendas and responsibilities. None is assigned the specific responsibility of articulating and advancing the cause of civil liberties. As history teaches, this state of affairs has too often failed our nation.

Of course, Civil Liberties Advisors may often lose the debate, or even be shunted aside. But sometimes they will win, and sometimes they will raise consciousness and help frame the discussion. Moreover, an administration without such a voice is much more likely to short-change civil liberties than one with such an advocate. The stakes for our nation are simply too high for us to continue to muddle along without someone in this critical position. Indeed, this idea this might well give rise to a whole new meaning to the notion of Homeland Security.

An abbreviated version on this post appeared as an op-ed in the June 30, 2008 New York Times under the title “How to Put Civil Liberties in the White House.”

Comments

[jimbino]

How about a Secretary of Enlightenment through Science and Math? Our leadership, whether executive, legislative or judicial is woefully unschooled in the sciences. The only exceptions are Steven Breyer and five scientists in Congress.

[FrankMCook]

Applying Occam's Razor, I hereby nominate Geof to be the next Attorney General. We won't need a new level of government if we fill the current positions with people who would, like Geof, take seriously their oath to preserve, protect, and defend the Constitution.

[Michael F. Martin]

Prof. Stone,

I believe you have the right goal in mind, but are promoting the wrong approach.

By creating a separate cabinet position for Civil Liberties, you give all of the other cabinet members (and the president) less incentive to take responsibility in what they do to protect these most important freedoms.

It's the President's job. If he's not doing it to our satisfaction, it should be he alone that bears responsibility. Creating another cabinet head would only encourage scapegoating and political maneuvering.

[Kimball Corson]

Invariably it is our fear of one thing or another that turns us against ourselves and destroys or compromises our liberties, one of the very best aspects about ourselves. Those who characterize Stone and the likes of him as whiners and unrealistic have a shortened and benighted view of history.

That we should impose our undoing upon ourselves is the quintessential tragedy.

My great fear, like that of some others, is that, in our pursuit of the policy of "perpetual peace by perpetual war," inalienable rights, once alienated, cannot be fully recovered, so we remain evermore compromised and the less for it. The core problem is our aggressive warmongering.

Our solution to too much on the world stage is our military engagement of one kind or the other. The consequence that ensues is our fear of retaliation and that in turn compromises on our liberties, to say nothing of diverting funds from America’s infrastructure.

We need to put down our swords and go about living more peaceable lives if we want to protect ourselves, but our understanding is the reverse.

[Kimball Corson]

Jeff looks for a new administrative solution to protect our rights. However, implicit in that approach are the concessions we cannot abandon our policy of pursuing perpetual peace by perpetually engaging in military incursions or wars and the fact that our courts and laws have proven inadequate in recent times to protect those same liberties. Those are very unfortunate and tragic concessions.

[Kimball Corson]

July 4, 2008. Mikhail Gorbachev now says the US presidential candidates need to talk about the the United States' "increasing tendency to militarize policymaking and thinking," and to state clearly whether they plan to continue in this direction. I'm sure I know the answer for McCain. It's a yes. And it's probably no for Obama. If Gorbachev sees our problem, why can't we?

[Kimballcorson]

If you wonder why Gorbachev raises this issue, consider the factual backgroud.

The US has initiated almost 200 military “incursions” into foreign countries or outright wars since 1945.

From 1949 through 2008 (est.), the US has spent $11.6 trillion dollars on “national defense.” Currently such expenditures run about 21% of all federal outlays.

Our current national debt is almost $9.5 trillion dollars. Of that, $5.3 trillion is owed to the public, broadly defined. Most of the rest or $4.2 trillion dollars is owed to the Social Security and Medicare Trust Funds for arguably illegal withdrawals from those Funds.

We should be absolutely ashamed of ourselves. Most of us don't even know what we are doing. And that is worse yet. We clearly need new leadership radically different from what we have had. We are an embarrasment to ourselves. And we wonder why so much of the rest of the world despises us or our goverment.

[Dave S.]

"We have brutally persecuted dissenters..."

Please provide a specific example of the brutal persecution of a dissenter. I cannot think of the incident or incidents that you are referring to. Thank you.

[Kimball Corson]

The Chicago Seven, Waco, Ruby Ridge, all those audited by IRS under Nixon for speaking out, all those spied upon by Hoover because he didn't like their politics, the Japanese interned, draft protesters, Vietnam war protesters, Iraq War protesters, gays, civil rights workers, voting rights workers . . . just in my first breath. The list is quite considerable. Where have you been? . . . and I am living in Panama!

[Kimball Corson]

But back to the theme of our rampant militarism, a troubling question lurks in the back of my mind: Do we need this huge on-going military outlay to have our capitalistic economy grow or perform adequately? Is that the real root of the problem? Marx thought so and I seriously wonder.

[Uzair Kayani]

Hi Kimball,

I'm only superficially familiar with Marx, but I don't see a connection between military activity and capitalism. If there were no military at all (and no security concerns) capitalism would still work fine. Moreover, it seems capitalism only flourishes in countries that do protect the kinds of civil liberties that the Bill of Rights and the common law ensure. Put differently, I think civil rights and capitalism are symbiotic rather than opposed. The problems occur when government interferes with capitalism to advantage certain market actors over others (for example, if someone went to war in order to help the steel or oil industry). But that has nothing to do with capitalism per se. It is just a case of people leapfrogging competition by using the force of government to protect or advantage themselves. It is a type of tariff.

That type of leapfrogging is anti-capitalistic, and is more likely to occur in socialist countries and police states. This is because the government is much more powerful relative to the governed in such states, and is therefore able to engage in the type of favoritism and anti-market economic engineering that would be beyond its means in a limited government regime.

I want to clarify, though, that in certain social, health-related, safety-related, or other areas the government probably should have an educative role, in order to ensure that egregious behavior or traits are not allowed to fester in the name of autonomy or "limited government." It is difficult to draw the line or fend off accusations of paternalism there, but I think there is a class of fundamental rights that ought to be strictly inalienable and non-repealable.

[Kimball Corson]

Hi Uzair,
I think the connection or argument is that massive military expenditures contribute greatly to aggregate demand without which capitalism would stagnate. I am not sure I buy that, either. It may be alternatively that the wealthy class in America likes our war mongering because of the profits it generates for the war related companies they own and the opportunities it creates for profiting from the economic volitility and instability that ensues. Under this view, capitalism would reach a lower level equilibrium, without our war mongering, and tool along at that level without much volitility, with everyone largely going happily about their business.

I do agree with you that civil rights and capitalism are symbiotic rather than opposed and that problems occur when government interferes with capitalism to advantage certain market actors over others. The latter, by war mongering, is what I am suggesting here under the second alternative above. Someone qualified ought to be looking hard at these questions. If I were back in an economics Ph.D. program and not such an old fart having fun, that is exactly what I would try to do. I think we have hidden, economic, class warfare afoot here, where our government is the patsey and agent of the well to do. That does have Marxist overtones, but it can be tested and assessed by positive economics and there is no doubt that wealth and incomes are increasingly being skewed toward the top end in America. See some strong evidence of my basic alternative arguemnt here in Figure 1 to Bush Boom Bah, the July 7th post by Paul Krugman on his blog site at http://krugman.blogs.nytimes.com/, although the evidence is presented there for different purposes.

[Kimball Corson]

It should be noted that the heavy, watchful and funding presence of corporate America and its US government at American universities make it very hard to conduct and publish the kind of studies and inquiries I propose here. While at MIT once, years ago, I asked a top professor whom I had hired for an antitrust case, why none of the top American economics departments had a serious Marxist economist like Paul Sweezy on their faculties. He responded -- candidly enough -- that those providing the universities with the big bucks would not approve of any Marxist economist on those faculties.

[resh]

Ah, I don't mean to rain on the parade, but we already have a civil liberties advisor.

It's called the Supreme Court.

Why is that half-facetious observation important? Because a "chosen" advisor-let's use a Ramsey Clark type, since he was seamlessly mentioned-whose duty, putatively, would be to offer a kind of nuanced conscientiousness to endangered civil liberties would end up filtering the issues and providing a smokescreen for isolated and more subcutaneous dangers.

Simply put, agendas are not divisible, folks. Sorry to say. Agendas, ideological or otherwise, pervade presidents, popes, pirates and pimps. (How's that for an illiteration.) Nor would agendas skirt a civil liberties advisor. Not by a longshot. Do I need to mention, for example, that Ramsey Clark later jumped in bed with Saddam Hussein and offered to serve as his general counsel? Yea, I guess he'd have been real balanced on Bushian civil liberties abuses and on whose oxe was being gored at the time.

Or perhaps I could mention Bobby Kennedy, that leftist paradigm of all men virtuous and attorney general for his bro'. Anybody here want to take a guess what he silently sanctioned while the FBI painted MLK as the '60s anti-christ? Tell me it ain't so, Bobby. How would a "civil liberties" advisor have fared then? About as dismally, say I, as under our current junta.

Finally, exactly what would be this advisor's domain and dominion? Stone's abstract implies a gifted omnipresence for this person. Would he focus on the legislature, the justice department, the CIA, NSA, or on the pentagon? Or would his guiding hand restrict itself to the reigning monarch's toxicity? That's quite a dose of righteousness, even for a liberal. Yet, if we're going to chase monsters with another Geof-Stonian sword, how are we going to know that the cancer is thoroughly gutted and that the abyss is suitably cleansed?

We won't. And that's why the Supreme Court must be relied upon to turn wrongs into rights. The imperfections will have to continue. Regrets. The court's imprimatur, ideological and episodic as it can be at times, at least signifies and demands a constitutional reflection. It represents the continuity of non-agenda, and evinces a balanced capacity to reduce the worst evil.

And it certainly prevails over the whimsy of tomorrow's saint.

-resh

[DAC96]

Mr. Carson beat me to it. Prof. Stone's idea ignores the obvious.

First, the Constitution already vests the Supreme Court with the authority to "say" what our liberties "are." Second, a civil liberties czar appointed by the president would almost certainly reflect the values of the executive branch, much as attorney generals do. Does anyone believe that Pres. Bush would really have appointed someone whose ideas diverged from his concerning civil liberties had the position existed prior to 2000?

Third, there are countless lawyers who already advocate on behalf of Americans in regard to their liberties, including lawyers employed by the ACLU, the NRA, and, I hate to admit it, the plaintiffs' bar. Why waste time and money appointing a cabinet member whose loyalties will align generally with the executive branch's interpretation of civil liberties when we already have thousands of lawyers with a vested interest in pushing for the expansion of their clients' rights?

[Uzair Kayani]

I don't see why an "agenda" wouldn't brook internal criticism or opposition. Otherwise the planner would be flying blind.

I think it is a regrettable accident that presidents have become more loyal to their parties than to their institutional roles. If a president were less interested in being a Republican or Democrat than in being the Executive, he would appoint anyone (regardless of whether he agrees or disagrees with her) to a position that enhanced the executive branch's standing. This may well include a civil rights officer, just as it may include any number of people who disagree strongly with him. People who isolate themselves from dissent become retarded.

As I understand it, the founders wanted to encourage institutional jealousies (between the branches) but discourage partisan jealousies (which run across the branches). Federalist 10 explains that the nonsense we see has nothing to do with the structure of government, but with the behavior of political parties: ""some of the distresses under which we labor have been erroneously charged on the operation of our governments; but . . . [t]hese must be chiefly, if not wholly, effects of . . . a factious spirit [that] has tainted our public administrations."

The founders assumed that there would be a multitude of parties rather than just two, such that each party would be relatively weak by itself. For example, agian, Fed 10 asks: "Does[the advantage of controlling factions] consist in the greater security afforded by a greater variety of parties, against the event of any one party being able to outnumber and oppress the rest? In an equal degree does the increased variety of parties comprised within the Union, increase this security."

It is an accident that a multitude of parties never really arose, so that we are living in the fractious world that Fed 10 deplored. This lack of diversity has supplanted the "institutional agendas" that the framers welcomed (ambition to counteract ambition) with the partisan agendas that they properly denounced.

As usual, T.J. and the gang were right.

When presidents have acted with little regard to their parties (but jealous regard for their institutional roles) they have done very well for the country. The most popular (if divisive) presidencies have been precisely of this sort: Lincoln, FDR, Johnson, etc had cabinet or at least prominent party members that strongly disagreed with them. Indeed, it is mind-boggling that Lincoln or Johnson became President at all. Their distinctive quality was that their loyalty to their institutional role (as president) was greater than their loyalty to their parties. This was what the founders expected, and when their expectations work (that is, when the parties are fooled into supporting independent minds) then we see excellent results.

[Kimball Corson]

But the point is the Supreme Court is sporatic, at best, in protecting our rights and miserable, at worse, and presidents do no better, having their own complex agendas. So what is to be done to assure our inalienable rights are not compromised and alienated?

[Kimball Corson]

One thought, perhaps, is that specified rights may be comprised to a reseasonable and necessary degree, but then only for a limited period of time, and only when the President, with the approval of a majority in both houses of Congress, declares that such a compromise of rights is necessary and imperative, all subject to judicial review. This way perhaps we could assure that rights are fully reinstated at some point and not left forever compromised or alienated.

[LAK]

No commentarry from the U of C faculty, first on the Bear Stearns bail out, now the Fannie and Freddie bail outs. What gives? Methinks I smell some cowardice. Where have you gone Todd Henderson and Richard Epstein, keepers of the "free" market? Our nation turns its lonely eyes to you. The unregulated free market is oh so efficient!

[DAC96]

Uzair Kayani wrote:

"But the point is the Supreme Court is sporatic, at best, in protecting our rights and miserable, at worse, and presidents do no better, having their own complex agendas. So what is to be done to assure our inalienable rights are not compromised and alienated?"

I don't disagree with your statement that the Supreme Court is "spora[d]ic, at best, in protecting our rights and miserable, at wors[t]. . . ." The point, however, is that a civil rights czar appointed by the president would be no more capable of dictating the extent of our civil rights than the Secretary of State is able to dictate that a signing statement executed by the President gives him or her the right to declare war -- the ultimate power to determine whether the government has violated any right or provision provided by the Constution is reserved to the judicial branch. Whether the courts do a "good" job is another question altogether.

[DAC96]

Kimball Corson wrote:

"No commentarry from the U of C faculty, first on the Bear Stearns bail out, now the Fannie and Freddie bail outs. What gives? Methinks I smell some cowardice. Where have you gone Todd Henderson and Richard Epstein, keepers of the "free" market? Our nation turns its lonely eyes to you. The unregulated free market is oh so efficient!"

Theory: The market will readjust itself, forcing out firms unable to compete effectively.

Fact: The public will be forced to bail out the "free market" failures under the threat of complete financial collapse, while average citizens lose their homes to foreclosure.

It's one more example of how Wall Street privatizes profits but socializes losses.

[Kimball Corson]

DAC96, you have your quotes balled up. I made the quote you attribut to Uzari and LAK made the one you attribute to me, although I sort of agree with it. The market muckupism is hard at work just now.

[LAK]

Wonderful things happen when you can get rich off of fees associated with mortgage lending and then securitize and sell the loan and spread the associated risk until it all comes crumbling down much much later after such a system has so bloated housing prices and put millions in homes they can't afford that it reaches its tipping point and determining "fair market value" of all those secuties becomes, uh, difficult.
Oh, wait, you mean if we write this down as we're supposed to we'll be insolvent? I know, before we do that, let's borrow money on the cheap from the government!

[Kimball Corson]

I say sort of agree because it is not that the market mechanism is so dysfunctional in most areas as it is that government at all levels, which should only set and enforce the operating rules here, can't help but otherwise interfer and try to second guess or "improve" that mechanism.

[Kimball Corson]

LAK should not be so surprised. Wall Street has worked very hard -- the old fashion way -- to privatize gains and socialize losses. This income redistribution has gone on for centuries and we and our govt blythly and repeatedly let it happen or worse, aid it. We just don't get it.