"We nonviolently oppose the reliance on unilateral military actions rather than cooperative diplomacy."


January 3, 2013

"No break with the traditions of America's past has been so complete, so drastic, as the one that has resulted in the growth of the present military-industrial complex." —Fred Cook, The Warfare State (Macmillan, 1962), p. 35.

You could hear another snap of that break this week, when Federal District Court Judge Colleen McMahon ruled that members of "we the people" can be killed extrajudicially by the government without anyone being allowed to know the reason why.

Indeed, fifty years after the publication of The Warfare State, it's hard not to conclude that the U.S. Constitution, supposedly the "the supreme Law of the Land," is a dead letter.  Consider what disinterested observers see in 2013 when they gaze at the American republic.

* They see an executive power that, since the end of World War II and under administrations of opposing political parties, has waged illegal wars of aggression with impunity and continues to prosecute a seemingly endless global "War on Terror" based on a congressional joint resolution that only authorized the use of force against 9/11 terrorists.[1]

* They see a Congress that has the power to check such folly by refusing to fund it, but instead facilitates it, turning a blind eye to violations of the First, Fourth, Fifth, Sixth, and Eighth Amendments while at the same time supporting an absurd interpretation of the Second Amendment largely responsible for the deaths by firearm of 10,000 Americans a year.[2]

* And they see a judiciary that has erected absurd evidentiary rules like the "state secrets privilege" to allow the executive to exclude evidence from legal cases based solely on an affidavit that court proceedings might reveal information that could endanger "national security."[3]

After the government killed U.S. citizens by drone attack on Sept. 30, 2011, the Justice Department classified the memo justifying the apparent violation of the Fifth Amendment's guarantee of due process.  Journalists and civil libertarians were appalled and filed suit.

This week a federal judge ruled she had no power to order the publication of the memo.[4]

In a truly Kafkaesque 71-page ruling, Judge Colleen McMahon said that "under the law, I can only conclude that the Government has not violated FOIA [the Freedom of Information Act] by refusing to turn over the documents sought in the FOIA requests, and so cannot be compelled by this court of law to explain in detail the reasons why its actions do not violate the Constitution and laws of the United States.  The Alice-in-Wonderland nature of this pronouncement is not lost on me; but after careful and extensive consideration, I find myself stuck in a paradoxical situation in which I cannot solve a problem because of contradictory constraints and rules—a veritable Catch-22.  I can find no way around the thicket of laws and precedents that effectively allow the Executive Branch of our Government to proclaim as perfectly lawful certain actions that seem on their face incompatible with our Constitution and laws, while keeping the reasons for their conclusion a secret."[5]

Even part of the court's decision is secret.  "Certain issues requiring discussion in order to make this opinion complete," Judge McMahon ruled, are "the subject of a separate, classified Appendix to this opinion, which is being filed under seal and is not available to Plaintiffs' counsel."

In June 2012, UFPPC commented on the part pervasive secrecy is playing in our national life.  We warned that "pervasive secrecy will make democracy untenable in the long run."[6]  Judge McMahon's decision suggests that we are near that point already.

Why do Americans put up with such gross violations of their core values?  James Madison, the most far-seeing of the Founders, understood that this would happen if Americans allowed militarism to take root.  The Warfare State, which we cited at the beginning of this statement, quotes Madison's 1792 warning:  a government "operating by a permanent military force . . . is at once the cause of burdens on the people, and of submissions in the people to their burdens."

* * * * *

[1]The full text of the clause in the "Authorization for Use of Military Force," or AUMF, voted on Sept. 14, 2001:  "That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons."

[2]The United Nations Office on Drugs and Crime reported that the number of homicides by firearm in the U.S. in 2003 was 11,040; in 2004, 10,660; in 2005, 11,360; in 2006, 11,730; in 2007, 11,630; in 2008, 11,030; in 2009, 10,300; in 2010, 9,960.

[3]United States v. Reynolds, 345 U.S. 1 (1953).

[4]Adam Liptak, "Secrecy of Memo on Drone Killing Is Upheld," New York Times (January 3, 2012; posted online Jan. 2).

[5] The New York Times, Charlie Savage, and Scott Shane v. United States Department of Justice and American Civil Liberties Union and American Civil Liberties Union Foundation v. U.S. Department of Justice, including its component the Office of Legal Counsel, U.S. Department of Defense, including its Component U.S. Special Operations Command, and Central Intelligence Agency, United States District Court, Southern District of New York, 11 Civ. 9336 and 12 Civ. 794, p. 3.

[6]"Pervasive Secrecy: The Way We Live Now," United for Peace of Pierce County (June 7, 2012).


"We nonviolently oppose the reliance on unilateral military actions rather than cooperative diplomacy."