Chapter 10

The War On…

“Those who would give up Essential Liberty to purchase a little Temporary Safety deserve neither Liberty nor Safety”

 – attributed to Benjamin Franklin¹

People make decisions differently in an emergency.  Whatever might be important to them under normal circumstances, the sole concern in an emergency is safety from the immediate threat.  During a flood, the sole concern is to keep from drowning.  In a fire, the sole concern is to keep from being burned alive.  In war, to defeat the enemy before he kills or enslaves you.

Individuals in the emergency are willing to take direct orders from policeman, fireman, or soldiers in order to avoid danger and flee to safety.  No one escaping a burning building stops to question the authority of the fireman who orders him to run this way or that.  Trust is placed in authority in exchange for safety.  Once the danger has passed, the individual reclaims his independence.  This natural shift in perspective during an emergency helps those untrained to deal with the emergency survive.

In times of war, this state of emergency lasts much longer.  It is assumed the population faces the very real danger that a foreign army may invade their country, occupy their cities, and abolish their liberty.² The state of emergency that accompanies any real war often necessitates the sacrifice of personal freedoms in exchange for security, especially if the enemy is close at hand and has a reasonable chance of victory.

While there is room for debate as to whether the government is justified in temporarily infringing upon certain rights during a dire wartime emergency, there is no justification for such infringement over a non-emergent social problem.  This is precisely what has happened as a result of government’s various domestic “wars.”  These might be merely public relations gimmicks to convince the public that the government is really, really serious, but they carry far more ominous consequences.

Once government’s mandate to enforce the law becomes a war, all of the conditions that accompany a state of emergency come with it.  No longer are individual rights or personal liberty a consideration.  They must be sacrificed to avoid the immediate threat.  Worse, unlike a military war, which has a beginning and an end, the government’s War on Poverty, War on Drugs, and more general War on Crime have no end.  They are wars that can never be won, and so the state of emergency, along with its subjugation of individual rights, persists indefinitely.

Today, few would argue the War on Drugs has not been a failure.  Despite incarcerating millions of Americans and spending hundreds of billions of dollars, drug use has never been higher.  Time after time, we see members of the police force sent out to enforce laws against this non-crime are drawn into the drug trade themselves, due to the enormous profits available in any black market.  As they did during alcohol prohibition, the huge profits have also promoted the growth of a myriad of criminal organizations.

Each year, more personal liberty is lost because the solution to last year’s failure to “win the war” is to try to further eliminate the opportunity to commit the crime this year.  To detect the laundering of drug money, everyone’s financial transactions must be watched for suspicious activity.  To prevent drugs from being transported by air, inspections of everyone’s belongings must be conducted at airports.  There are even devices that use x-rays to see into people’s houses; used if there is any suspicion they may be growing marijuana.  As time goes on and the “War on Drugs” continues to fail, more individual rights will be lost until everyone is presumed guilty until proven innocent; all to “protect us” against activity that harms no one but the actor.

The same is true of the more general War on Crime.  That is not to say crime shouldn’t be punished.  Those who commit aggression against life, liberty or property should be arrested and prosecuted.  Crime and punishment is part of everyday life.  By prosecuting and punishing real crime, individual rights are defended.

However, once this is transformed into a war, all sense of normalcy changes.  The rights of the people become secondary to winning the war.  A state of emergency exists and only ending the emergency can bring normalcy back to society and the respect for individual rights.  But the emergency can’t end because there will always be crime.  No matter how many are arrested, no matter how many rights are lost, no matter how draconian the measures taken to prevent crime, it will persist.  Thus, the state of emergency will never end and the rights suspended to deal with it will never be restored.  This has been the result of every “war” the government has fought against social issues.

The War on Poverty resulted in the loss of individuals’ right to their property.  The War on Drugs and War on Crime have resulted in the loss of individual rights to security of person, such as habeas corpus, due process, and the right to be presumed innocent until proven guilty. They also gave the government new power to seize property from the accused before they are found guilty of anything.  Freezing bank accounts and confiscating property based merely upon an indictment is characterized by the government as being “tough on crime.”  But what about those who are eventually found not guilty?  Prosecutions typically take years. The families of the accused are literally held hostage by the government without access to their money and with a substantial portion of their property confiscated.  These tactics inhibit the ability of the accused to mount a defense.  These tactics clearly violate the intention of the Fifth Amendment, which states that no one will be “be deprived of life, liberty, or property, without due process of law.”³

The media and popular culture constantly promote a message that crime is out of control and more drastic measures are needed to fight it.  Yet, how many of us have ever actually been the victim of a violent crime, or even know anyone who has?  In cities of millions, local news will run the story of a murder over and over until they have created an illusion that the one murder they have covered was twenty or thirty.  This is not to imply it is an intentional strategy to scare people.  Most who have worked in television news are familiar with the slogan, “If it bleeds, it leads.”  Regardless of the intentions, the result is still the same.  The public is misled into thinking an emergency exists and they are in immediate danger.  They then employ emergency reasoning regarding their rights.

The campaign does not end with the news.  Consider the average police drama on television or in the movies.  Most carry the same message.  The law enforcement community is fighting a valiant but losing “war” against rampant crime. The rights of the accused are preventing law enforcement officers from saving us from these dangerous criminals.  Anyone forming their opinions about the justice system from these dramas would conclude that an alarming number of dangerous criminals escape justice “on a technicality” because of those troublesome constitutional protections.  How often does the heroic cop say with unmasked resentment, “The accused has rights?”  The clear message to the viewer: constitutional protections are preventing law enforcement from protecting you from dangerous people during this War on Crime emergency.  They are arresting the perpetrators, but constitutional protections are allowing most of them to “walk.”

This is completely contradicted by reality.  In the real world, those accused of crimes have very little chance of getting an acquittal, especially if they are indicted in federal court.  With the erosion of constitutional protections resulting from years of elected representatives attempting to be “tougher on crime,” the conviction rates have skyrocketed.  According to the U.S. Department of Justice, the conviction rate in federal court in 2005 was 90%.⁴

Here is just one example.  Most Americans are familiar with the rule of evidence against hearsay.  This prohibits a third party from testifying to a conversation he or she was not a party to.  In other words, I cannot testify in court that I heard Joe tell Mary that he was going to commit a crime.  This is a crucial protection for defendants, because a third party can easily take the conversation out of context and cannot be effectively cross examined on the background or context of the conversation.  If the witness is lying, there is no way to expose it, as they can merely stand on the assertion, “That’s what I heard.”

This protection is revoked when the defendant is accused of a conspiracy.  In those cases, the government claims it cannot prove its case without hearsay testimony.  The rule allowing hearsay in conspiracy cases was originally put in place to prosecute organized crime figures.  It was considered vital to the case against a mafia leader that the former member of his “family” who now testified against him could testify that the accused had given orders to commit crimes.  Few argued against eliminating this protection for the accused when it could help convict a mafia godfather. However, once that right was surrendered for the mafia figure, it was surrendered for all.

As a result, the government now includes a charge of conspiracy in virtually every case it prosecutes.  Further, prosecution witnesses have often plead guilty themselves and must give “helpful” testimony in order to lessen their own sentences.  Since the government can now allow these witnesses to give hearsay testimony, the witnesses can testify to hearing the accused say whatever the government wants them to have heard.  If you do not believe this goes on in our sacrosanct justice system, you are fooling yourself at your own peril.

In addition to infringing rights during trial, the War on Crime has tainted the administration of justice at sentencing.  Under the pretense of making sentencing fairer to minorities and more uniform in courts in different parts of the country, a rigid set of sentencing guidelines has been established, especially in federal court, to which judges must adhere in administering sentencing.⁵ These guidelines assign point totals to various crimes, with adjustments up or down depending upon mitigating factors. Most add points for factors that are considered to make the offense more egregious, while a few subtract points for factors such as acceptance of responsibility or cooperation with the authorities.  Based upon the point total, the judge must then sentence within a narrow range associated with that point total in the guidelines.⁶

Therefore, regardless of the judge’s impression of the case or what reasons he might have for being more lenient to the defendant, he must give the defendant at least the minimum sentence prescribed for that point total.  In most cases, the sentencing minimums are not significantly lower than the maximums.

It gets worse.  In determining sentence, the judge is also required to consider “other relevant conduct,” which not only includes crimes the defendant was convicted of, but also those the defendant was charged with and acquitted of.  The judge is even required to consider conduct the defendant was not charged with at all!

Suppose a defendant is charged with one count of conspiracy and seven individual counts of a particular crime.  Even if the defendant is acquitted of all but one of the individual counts, the court will nevertheless assign points based upon the one count the defendant was convicted of, the six individual counts and the one conspiracy count, even though the defendant was acquitted of all but the first.  Moreover, any additional evidence of conduct by the defendant that was presented by the prosecution, even if it was not the substance of a specific charge and regardless of the fact that it might have been totally discredited by the defense, is also assigned points.  In addition, even though the defendant was acquitted of the conspiracy, points can be assigned for the conduct of all members of it, including participants the defendant never met.  Once these inflated point totals are tallied, the resulting jail sentence is inevitably far longer than the crime warrants.

These sentencing guidelines work together with tainted rules of evidence to incarcerate vast numbers of Americans for what used to be considered relatively minor crimes.  To explain all this “American Holocaust” would take many volumes.  However, just consider how these two examples work together.

A government witness facing sentencing himself is called to testify against a defendant charged with conspiracy.  Remember that the witness’ downward point adjustments depend on his testimony being helpful to the prosecution.  The hearsay rules are suspended, so the witness can testify to conversations he claims he heard the defendant have with other people.  He testifies to three conversations during which he says he heard the defendant talk about selling one kilo, two kilos, and three kilos of cocaine, respectively.  The amount of drugs in a drug conspiracy case also carries points, so the more drugs involved in the crime, the more points assigned to the defendant.  Those six kilos are now assigned points and counted during sentencing, even if there is no other proof those kilos existed and the witness’ testimony was completely discredited by the defense.

In addition, if the witness testifies about conversations he overheard involving other members of the conspiracy, even among members the defendant never met and related to crimes for which the defendant has not been charged, any kilos mentioned in regard to those conversations will also be added to the defendant’s point total.  This is how a drug user caught with a few grams of cocaine for personal use can end up in prison for 20 years for “drug trafficking.”  Rather than an extreme example of how the system could be abused, this is business as usual in our American courts.  For financial crimes, substitute the amount of dollars for the amount of drugs and all of the same rules apply.

The perception that the guilty go free because they have too many constitutional protections couldn’t be farther from the truth.  On the contrary, the vast numbers of Americans imprisoned suggests the innocent are imprisoned at a much greater rate than the guilty are freed.

According to the U.S. Department of Justice, there were close to 2.3 million people incarcerated in the United States as of June 30, 2007.⁷ That is more than 1 in every 100 adults.  Both in total numbers and in percentage of population, the United States incarcerates more of its citizens than any nation in the world, including the supposedly more oppressive People’s Republic of China (they have about 1.5 million in jail out of a population 4 times as large as the U.S.).  Unless the American people are the most depraved that ever lived, we are clearly doing something very wrong.  If there is any emergency related to crime in the United States, it is the out of control justice system itself.

While the prison populations in the various states have finally started decreasing during the past few years, the federal prison population is increasing more.  This means not only is the overall number of Americans incarcerated continuing to increase, but the federal government is assuming more and more jurisdiction previously reserved to the states.  Both of these trends are ominous.  They will not reverse while the War on Crime continues.

The infringement of rights of the accused or convicted does not end with their release from prison.  For the rest of their lives, those convicted of felonies are not allowed to exercise rights that are supposed to be inalienable.  Regardless of the nature of the crime, convicted felons are prohibited from bearing arms, making them permanently dependent upon government for defense.  They are prohibited from holding many licenses or gaining access to secured areas.  In many states, they lose their right to vote and can only regain it after an onerous process which may or may not be successful.

Even for a crime as innocuous as tax evasion, which some people commit as a means of civil disobedience or protest, they lose many rights forever.  By elevating more and more crimes to felony status and convicting more and more Americans every year, a significant percentage of the population is becoming a second class of citizen with far fewer rights.  While there are 2.3 million Americans in jail right now, there is a much larger group with a past felony conviction.  That number could be in the tens of millions.

All of these intolerable results are a direct result of the “state of emergency” mindset.  The culmination of this thinking is the Global War on Terror.  This is the “mother of all wars” as far as government infringement of rights is concerned.  It is like the War on Crime on steroids.  As alarming as are the disadvantages to defendants in civilian courts, the War on Terror may deprive a defendant of any day in court whatsoever.  As a result of the Patriot Act, the Military Commission Act of 2006, and certain executive orders issued by President Bush (who is not supposed to be able to make laws at all), the possibility exists for American citizens to be arrested and imprisoned without recourse to challenge their arrest in court.  If they are deemed an “enemy combatant” by the executive branch, they can be held indefinitely without being charged and perhaps even subjected to torture.

President Obama now says he can even kill suspected terrorists without due process. With a more terrifying “emergency” comes more terrifying government measures to combat it.

Not only is this alleged emergency infinitely more terrifying than your average mugging or car theft, but its scope is unlimited.  The terrorists can be anywhere in the world.  Therefore, government not only claims authority to violate the rights of its own citizens, but of citizens of other nations.  Until the worldwide emergency is over, no individual and no nation is safe from the next “preventative” measure the government will employ. These include invading a foreign nation even when no acts of war have been committed or war declared, so long as that nation is perceived as a threat to security.

Contrary to the claim that “the world changed on September 11, 2001,” the Global War on Terror is not without precedent.  In fact, most authoritarian societies became that way because of measures taken to protect the population against some ominous threat invoked by its government.  The parallels between present-day America and one such society are downright terrifying.  That society was Nazi Germany.  Consider the similarities.

Prior to Adolf Hitler’s ascension to power in Germany, there was an historic collapse of the currency, in large part due to unsustainable economic policies.  As has America today, Germany responded by ceding more and more power to its central government.  Hitler was viewed as “a man who could get things done,” as all of our recent presidential candidates have touted themselves.

Just like 21^st century America, Germany experienced a spectacular terrorist attack, the Reichstag Fire. It was used by the central government to violate the civil liberties of its people. Germany’s Reichstag Fire Act and Enabling Act were direct parallels to America’s Patriot Act and Military Commissions Act. Habeas corpus was abolished.  Just as they have in modern America, the economic policies of the authoritarian government proved unsustainable.  When another currency collapse was imminent, Hitler set out to plunder the gold of Europe to back the failing currency.

As in Germany of the 1930’s, an appeal to patriotism is used to persuade Americans to support greater intrusion into their lives by government and more warfare abroad.  Any dissent is labeled as unpatriotic.  Police state oppression of political dissent hangs over America like a dark cloud.  Like the Nazis, the U.S. government invaded a country that did not attack it and is threatening to expand its wars of aggression into Iran and elsewhere.  Slowly, even establishment media is starting to speculate that the true reason for doing so is to “secure resources.”  America may be attempting to solve its inherent economic problems by plundering the wealth of other nations.

The Federal Emergency Management Administration (FEMA) is completing projects to build prison camps throughout the United States with the capacity to detain millions of people.⁸ Most of these camps are already staffed and standing empty.  Who will be imprisoned in them?  FEMA also procured over 500,000 plastic coffins which are stored in plain view at a roadside in Georgia.  What are they preparing for?

In October 2008, the U.S. Army’s 3rd Infantry Division’s 1st Brigade Combat Team was recalled from Iraq and assigned to active duty within the United States.  According to the Army Times, this is “the first time an active unit has been given a dedicated assignment to NorthCom, a joint command established in 2002 to provide command and control for federal homeland defense efforts and coordinate defense support of civil authorities.”⁹ The article goes on to say,

“They may be called upon to help with civil unrest and crowd control or to deal with potentially horrific scenarios such as massive poisoning and chaos in response to a chemical, biological, radiological, nuclear or high-yield explosive, or CBRNE, attack.”

This report did not come from an internet conspiracy theory website.  It appeared in the Army Times, the official publication of the U.S. Army.  The founders’ fear of “standing armies” has become a reality.

In Hitler’s Germany, the regular army was augmented by a citizen paramilitary force of teenagers and young adults popularly known as the “Hitler Youth.”  In a speech in Colorado Springs, CO on July 2, 2008, Barack Obama said,

“We cannot continue to rely only on our military in order to achieve the national security objectives that we’ve set.  We’ve got to have a civilian national security force that’s just as powerful, just as strong, just as well funded.” ¹⁰

Curiously, although video of the speech confirms that Obama made this statement; all known transcripts of the speech provided by his campaign omit it.

Most would argue that anything similar to Nazi Germany is impossible in the United States.  This is a very naïve perspective.  No German of 1929 could have imagined the nightmare they would be living in ten years later.  Most Germans did not want it, nor would they support the abominable policies of the Nazis.

One could certainly argue that all of the federal government policies cited above have far different intentions than Hitler had.  This is a very dangerous way to look at it.  Hitler did not elicit the cheers of millions by telling them he was going to oppress them.  Just like in America today, everything he did was viewed by his citizens as a temporary measure to react to the current emergency.  It was not until years after they had lost their freedom that they realized the emergency was never going to end.  By then, it was too late.

Unless the American people put a stop to it, the Global War on Terror is never going to end.  In addition to it being impossible to win (to ensure that no terrorist act is ever committed by anyone anywhere ever again), the War on Terror perpetuates itself.  Since prosecuting it includes invading foreign nations, there is constant motive provided for new terrorist activity.  While the United States remains virtually invincible on the battlefield, there is little recourse for those who object to U.S. armies of occupation other than guerrilla or terrorist tactics.  That is not meant to condone or legitimize terrorism.  However, the reality is those who practice it are perpetually motivated by the War on Terror itself.

Domestic wars may also combine with the Global War on Terror to produce even worse results. The economic crisis has already resulted in government seizure of unwarranted power to combat the “economic emergency.”  Massive new regulations and other interventions into the economy have been instituted to combat problems caused by previous interventions.  This government “cure,” which is far worse than the disease, could eventually result in massive shortages of basic necessities like food, water, and gasoline.  That could lead to civil unrest and very easily bring on martial law, necessitating exercise of all of the frightening powers described above.  The phony emergencies could very well create a real one.

The only true emergency Americans face is the unwarranted accumulation of power by their government.  That accumulation is accelerating and only needs the proper crisis to provide an excuse for the government to use it.  This is not a new or unique scenario.  It has happened countless times throughout history.  In every case, the citizens told themselves, “It can never happen here.”

We must decide we will no longer acknowledge a permanent state of emergency and demand that the various wars end.  This does not mean we no longer punish crime or offer ourselves up as sitting ducks to terrorists. On the contrary, we should protect our rights to life, liberty, and property, but without at the same time destroying those rights.  We must bring government back under our control as an obedient servant, rather than a tyrannical master.  This aspect of the America Crisis is more urgent than any other.  Unless we wake up and take a stand against these infringements of our rights soon, we may lose the ability to exercise them forever.

Tom Mullen is the author of Where Do Conservatives and Liberals Come From? And What Ever Happened to Life, Liberty and the Pursuit of Happiness? Part One and A Return to Common Sense: Reawakening Liberty in the Inhabitants of America.