The National Security State: It Did Not Begin With “W” Nor Will it End With “O” – University of Iowa Center for Human Rights 10th Anniversary Symposium Keynote Address – Speech Notes – PDF

2009 University of Iowa Speech Notes

Thank Burns—and Director Greg Hamot

10 years of Center—-

Special Place—not on the coasts—yet significant—-

Significant —not just location but because involved in both political and civil rights—

And—economic and social rights—a bad step child in this country—theory don’t need to protect—open society will do it; we know that is not true—

also unlike most human rights organizations it is across disciplines—problems not solved by law and lawyers alone—-panels today demonstrate that


Most of us do what trained in law school to do and what courts willing to do–

Const rights —free speech; voting; trial protections; due process protections; prohibitions on cruel treatment —

Less of a place for Eco and social rights—especially in US–

Yes have been cases but no real victories: right to housing. Health care, education, food— economic rights—wafting for a brown v bd

maybe Changing—as we see in the current health care debate—principle must insure all—(although its rough going)—first time a real discussion—

–Less change in other areas such full employment housing education

So we and I in particular have to admire those who work in the trenches on issues that many in this country say shd not be recognized as rights—

And that is where Burns (director), Greg and the UICHR are doing pioneer work–­Addressing these difficult issues and trying to move us all into them

That work was against the tide—now moving in that direction—

UI centers work encompasses both sets of rights esp for most vulnerable—and conf to follow embodies that:

Climate change: The Challenge of Climate Change: Pursuit of Intergenerational Justice

Human Rights and Gender: Domestic and International Perspectives

Labor Rights, Migration and Empowering Vulnerable Populations: The Way Forward

(last point on this–case on labor rights in nica—sued US affiliate—lost —labor rights not enforceable—not like right to be free from torture)

All that being said—about the center for human rights—and importance—

Despite my belief that judge a society not just by free speech, voting and due process

But by the factors like its —schools– heath etc- employment—-water and the like

CCR and much of my recent work devoted to political and civil rights—part in post 9-11 America

That is in part because as I said those rights are much more subject to litigation

But even more focus in this period because under W (bush 2) we have witnessed the erosion if not the destruction of rights which we believed where fundamental—

My first real —what I could call “constitutional shock” came after 9/11—and led to our beginning the first gitmo case-

Nov 14 2001—wake up nyt 9 weeks after 9/11 what do I read Nov 13 military order—called a military order; what it did : pick up; hold indef without trial; abolish writ; mil commis

so serious habeas corpus—right to testt back to 1215 magna carta

not our normal work -what was normal work—but this was qualitative

hardly anyone else at first

Led to huge efforts by my office now some 600 rep gitmo

Wrote article: Moving toward a police state or have we arrived

Why a police state—picked up; disappeared; no court; exec is all—

Military order and gitmo—just part of long list of serious denials of rights now facing and fighting — as I said constitutional shocks—rights overridden

  • right to be free from torture—no accountability—without —ok what occurred –right to be test your detention with habeas corpus (kiyemba) (bagram)
  • right to be charged and tried for a crime—not held in preventive detention-­–right to trial by a regular court—not a military commission
  • right to be free from disappearance —picked up and taken away
  • right to protest —petition your govt—rights denied at me dnc r20

–Right to be free from unwarranted govt surveillance—(fbi guidelines to wiretapping deny that right)

Denial of these rights and others Not begin with W ( Bush)—although  accelerated and qualitative difference (Clinton and habeas)

and sadly they will not end with Obama—as I will explain—-

III. In my title I spoke of the national security state–I trace many of the denials of rights to the build up and acceptance of the US as a national security state—

What do I mean by a national security state?

A state where claims of national security trump rights

Rights can be overridden—most often by the executive—main place see it—

But sometimes by the courts and sometimes by legislator or all together use national security to trump rights

Here are 3 examples to illustrate what I mean—many more

  1. Gitmo

When W— says he can hold people at Gitmo without access to courts

He does so by claiming national security–

He is bypassing the other branches—courts who would normally decide detention issues —

And when the Obama admin says—despite habeas corpus rights -­-now given by S court—

Those courts cant order release of any detainees into US—he is asserting in name of natl sec his claim of exec power to override the courts on fundamental issue of freedom (kiyemba)

  1. State Secrets: when W asserted in court or Presidents before him–that the court can’t look into CIA rendition program —sending people to other countries for torture —because of state secrets —that is the executive using claims of national security to override the courts and individual rights—with no testing of those assertions—effort to hide admin illegalities

And O—despite promises to not invoke natl security in same way as Bush-to completely stop a court case—-O has done so to the surprise of the courts—that is natl sec trumping rights

3. Torture–When w’s lawyers say—the Yoos of this world that president can torture in the name of national security—he is overriding the right to be free from torture—guaranteed by every law, court and human rights instrument imaginable—

Here is what Condoleezza rights said when asked about waterboarding and why she thought it was legal —quote–

And when O says—no more torture (at least more or less)–

But not hold accountable—those who did—giving imprimatur to those who tortured in the name of national security—and guaranteeing it can and will happen again–

So that is what we have—and while differences–O like W invokes national security to deny rights—

There is a relationship between these assertions of nss, war and loss of rights—

War is a key pretext for the nss

CCR and others some success in holding back the dark tide destroying our rights—

but much less success on the central aspect of US nss state—continuous

war–Bush I and II Obama have involved us or kept us at war

War is what what leads to and excuses the denial of rights–we are at war—whether a shooting war or what is deemed by the administration as a war with al q—and presidents take every advantage of war to increase power and limit rights —cong and cts scared rabbits in the face of it–

unless we can change that central aspect of US policy–never regain lost liberty—

This deep Relationship of war and rights—Summed up best by Chris Hedges (former nyt) —from his readings of  Thucydides’ history.

“Read how Athens’ expanding empire saw it become a tyrant abroad and  then a tyrant at home. How the tyranny the Athenian leadership imposed on  others it finally imposed on itself. This, Thucydides wrote, is what doomed  Athenian democracy; Athens destroyed itself. For the primary instrument of tyranny and empire is war and war is a poison–

I think We may well be at the beginning of destroying our rights and our selves–

My title says that nss say did not begin with W–nor end with O

—its a point made by writer George Will—long term build up of natl sec state and exec power—since ww2

Nss justified by soviets and communists, the bomb and now in the name of stopping terrorism—the nss trumps all–even if bogus claims

I want to blame Obama—and of course I do—for the continuation of some of the worst aspects of the Bush 2 administration—esp war—gitmo state secrets mil comm. preventive etc

Obama cld do better—much better—issues I have described

But also hard to turn around this country even were he stronger—whale-1000 bases-natl sec state and nss establishment not disappear in a day–more of an effort (although for some aspects CCR had hopes first 100 days) our ambitious goals

this where mass movements come in—where push

organizing —not sitting on our hands activism

so for example apart from torture gitmo cases in courts— we go to the streets as well– next week soa; cath woker;

r20 —right to protest and defend;

both kinds of work essential; change not just in the courts but the streets are ness a well

So nss as mentioned wont end with Obama–

Let’s look at a few of the most egregious examples of denials of rights and see where we are going: whether the O will repair the damage of W and before

—And examine what he has done—

—-how far will the pendulum swing back—not automatic and not all the way

Lay out some denials of rights you be the judge how much better under 0?

  1. Closet to my heart and my work—Guantanamo–

Explained how we began—military order —risk we took—how different then our normal work—

We had some amazing victories—the legal team—created a movement—

3 times in sct upheld right to habeas corpus—test detention

Each time thought it was over—but Sisyphus—

Cong rolled back—or tired to

Finally —Boumediene —const right to habeas

Now cong cant reverse—

But here is what W did and now O:

Courts: You can say no legal basis to hold—but you cant release to US—only President do that —

If no other country you stay–208 remain—a number after won habeas-

So core of habeas —release from custody—stripped out—advisory opinion-

-Time 4 –S ct for the fourth time—kiyemba—

Lessons—take a lot more than Obama to end gitmo—cts/movement

Cong—a disaster—every time worse—no habeas—

And now another law—no detainees to US except for trial—poor Uighurs—

So in the end O not much better—

(Bagram sitting out there)—admin same positions

(Clinton on gitmo) —same hopes—Haiti and HIV

  1. A second issue related to gitmo—but cld be other detainees now or in future

–Preventive detention–hold people without charges or trial That was gitmo under w and is gitmo under o today

Even if he closes the place—unless people are charged and tried it is a form of preventive detention even if test it in a court—still held with no charges-

O is Rewrapping gitmo—

That is anathema to me and shd be to all of us

Not ness to do so; dangerous precrime cuts against 225 years of our const —

No repair here–continuation

  1. Military commission—another way to try people–not regular courts

Illegal and unnes under Bush same for Obama—

More bells and whistles

Special courts—why? Danger –reason after the fact—easier to convict

Is that what we want–O a deep disappointment

4.Torture–mixed—something better today—then O

Order it stopped by exec order (a few holes)

Problem is can be started again—

Blocked the only way I know to deter that—prosecution

My book—ccr position

O is refusing to do so; giving a form of impunity —encourage happen again

  1. State secrecy—spoke of earlier

O said different but all words—prevents us from finding out what govt has done—way to hide

  1. Wiretap—of Americans—had a law; bush went beyond

Cong said ok going forward and immunity backwards and O in favor

made lawful at least by stat what was unlawful under Bush

  1. Surveillance—FBI Won a lot in 70’s after church, then central America, then Ashcroft, then end of Bush and now adopted—not even get them—what do they allow?

No crim predicate; ethnic and religion; informants etc There are more of course—Each pitched battles—not sitting down—

Point is not enuff to have a new president–Fight is harder in a way because people willing to give Obama a pass–

VII. Close by Some sense of the excitement and what its is like to be in the thick of the battle on these and other issues:

Last week-2 extraordinary cases

1a. major loss—arar—extraordinary rendition cases–sent by bush admin to torture; got him out but tortured; innocent

Canadians—9 million—major success

US—courts said no right to sue-7-4 s ct next

What position Obama admin — national security matter even if sent for torture—Obama —-

So US do it and no remedy—no court to protect that right—

O says rendition will continue

1b. but then an amazing victory—italy 23 agents—abu omar

what next? Will they go to jail? 25 countries

1c. part of international justice—no account here do it here—do it aboard—impt development

-pirate—france germany spain—book

  1. settled Turkmen—recall that roundups
  2. Gitmo Palau kiymba military commis act Midst if these remarkable struggles—for our freedoms–

What can you do? Lawyers or not lawyers others—

More depends on non lawyers—activism is what makes change

Not accept the world the way it is

Be involved in the issues of the day—whether issues I have outline or others climate, healthcare gender

Not give O a pass—or anyone a pass on rights and issues that matter

The Struggle to regain lost liberty will be up to all of us—

You have a good start out here—taking on the issues—keep at it

We rep an Algerian, a Libyan, a Syrian, a Somali, two Yemenis, Al Qahtani and Khan.

Finally as to gitmo—help us bring it to an end Charge or release

  • Charge people in federal courts (not commissions) or
  • release them (i.e. no preventive detention)