The government isn't a monolithic entity. It's composed of people who have often differing interests to each other. The justice system is run by the government, but that didn't stop e.g. the Supreme Court from ordering the bush administration to give process to the Guantanamo prisoners (and the administration complied!)
The "power grab" since 9/11 is mostly imagined. There is very little the President can do now that he couldn't in 1970, and as a practical matter he can do a lot less than he could in 1955.
Not true. In fact, that's a pretty astounding statement.
Executive power has expanded greatly since 9/11. The PATRIOT Act alone vastly expanded law enforcement capabilities. Law enforcement, of course, being of the Executive and including the DOJ. In fact this thread likely wouldn't need to exist if not for the expansion of NSL under the PATRIOT Act. Many of the rights that we ceded as citizens were given over directly to the Executive.
Remember, the Executive branch is more than just the President, but includes all departments under his purview.
I think if there is a myth it is among those who believe that nothing has changed simply because some of these mechanisms (such as NSL and FISA) did exist prior to 9/11. But, in addition to new powers, it is the expansion, interpretation, and application of existing powers that have also represented a large share of the power grab. This started with Bush after 9/11 with his adherence to the theory of the strong unitary executive. This is when we began to see the letters of his attorneys, which re-interpreted existing powers much more broadly and sought to justify unprecedented Executive actions retroactively. That there was never a trial indicates that they were, in fact, successful in their claims to additional power.
Of course one can also point to launching pre-emptive wars as an unprecedented power grab--perhaps of the highest order.
And, essentially, these powers continue to expand under Obama, up to and including the remarkable justification of drone strikes on American citizens.
This is mostly just "truthy." In reality, federal surveillance was dramatically higher during the Cold War (modulo improved technology), and the idea of the strong unitary executive dates to the founding of the republic. Stuff that you claim is "unprecedented" is anything but. The concept of "preemptive war" has no real distinguishing characteristic in an American history full of military interventions absent direct attack.
There is nothing "remarkable" about the justifications for drone strikes against ostensible American citizens who have taken up arms against the U.S. and are not on U.S. soil. Skirting along a murky and untested line? Sure, but not "remarkable." There is no consensus among legal scholars on the issue, and it is not without precedent (there are records, of various reliability, of Americans who fought for the Nazis and were killed in the war).
Further, and tangentially, the idea that I have to remove my shoes prior to boarding a commercial airliner, without any (I've never hijacked a plane before) probable cause, in the same airport that I once carried weapons through while in the service of the US Army, is a definite affront to my sensibilities, especially as a loyal American.
Just because a small group of predominantly Saudi Arabian nationals hijacked some planes doesn't mean that I'm going to do so.
There were hijackers back in the 1970's, but no one was subjected to such indignities as we are now.
Before anyone mentions "the shoe bomber," how about "the underwear bomber?" Following the shoe removal logic, the next step is strip searches of all passengers prior to boarding, right?
Someone might have some explosive underwear!
/sarcasm
By this logic you've just eliminated the point of all security screenings of anyone, anywhere, ever.
Yet most people would agree that it would be foolish not to take some precautions when loading 300 people on a cigar-tube cylinder in the sky.
It's worth noting that in the 1970s people weren't trying to commit mass casualty attacks with planes via the passengers nearly as often. Today, no one expects a conventional hijacking either.
By your logic, the extent to which we protect American ideals and freedoms is a function of what other actors do. Worse, it is the most egregiously abhorrent actors who would drive our direction most.
The problem with this thinking is that it has brought us exactly to where we are today. It is a very slippery slope that can literally destroy the fabric of this country. There is no end to what can be justified under the pretext of security and we have already given up too many freedoms in the name of "security". I will omit the famous Ben Franklin quote regarding freedom and security, but it certainly comes to mind.
Those who would argue that it is necessary to curtail freedoms and rights in exchange for protection, must acknowledge that what they presume to protect would be a wholly different America, and they must be well with this new America. To make that argument would be honest and a simple matter of opinion, but to suggest that we can continue on this course without fundamentally altering this nation is nothing more than illusion.
Your freedoms are hardly being overtly invaded by being security screened when you fly. Whether the security screening is effective or a distraction is a different question (or dangerous, in the case of the X-Ray backscatter).
I'm curious what freedoms you think you've given up in the name of security, that aren't simply complaints about being inconvenienced. Because there's plenty of real problems, but, in the context of this little comment-chain, the issue was airport security.
You mean what's more invasive than being groped and having an image of my genitals taken when I fly? I think that's overt enough and more than mere inconvenience.
Also not sure how you discount being exposed to dangerous radiation as not "overtly invasive". I certainly don't see that as a different question.
But, I actually wasn't focused on airport security as much as the spirit of your response. This idea that we have to meet everything the bad guys do with "more security", which does equal less freedom, rights, and privacy. The PATRIOT Act, of course comes to mind.
Though, it certainly applies to the airport scenario too. Bad guys put a bomb in a shoe? We all take off our shoes now. Bomb in the underwear? We move to backscatter machines that image what's underneath. Where does it stop? It's crazy, and it's a product of the same general reactionary thinking that brought us the "plenty of real problems" you referenced.
You're conflating drone strikes with uniformed soldiers killed on the battlefields of WWII, and I'm being truthy? Well. OK.
Likewise your other thin comparisons. They lack a certain depth that cause them to ring of disingenuousness. For instance, our actions in the past at least attempted to provide some pretext of military aggression against the U.S. or its allies. You yourself called them "interventions". But, you could not call Iraq an intervention, as there was no military pretext. It was unprecedented because we didn't even attempt to trump up the military pretext. We simply went to war based on what they "might do". Your attempt to dismiss such an obvious departure from American doctrine speaks for itself. In fact, it's so obvious that I actually feel silly responding.
I also wrote Bush's adherence to the strong unitary executive principle, which acknowledges its pre-existence. It was his extensive application of the principle that represented the power grab, per the examples I gave. Much of my comment was about the expansion of existing power vs. the "raw creation" of it.
In general, your citing examples of past abuses are just straw men. I never said that the U.S. has a perfect record or that there has never been abuse of power. But, we are living in a time wherein the Executive has more accepted power than in the history of our nation, and much of it has been enshrined into law. Again, the PATRIOT Act alone is unprecedented in the degree and scope of rights and protections that are given over to the Executive.
To ignore these realities and attempt to rationalize this power grab by spurious comparisons to the past is, at best, non-serious.
I am bringing up historical context because you keep using the word "unprecedented."
We did attempt to justify the Iraq war: WMD's. No less justifiable than many of our other interventions in Latin America, Asia, etc. Spanish American war anyone? Also: since when is justification required to go to war? The test has never been more or less than "protecting our interests."
I don't think its a stretch to compare an American citizen going to Yemen to fight against America with Arab terrorists with Americans going to fight with Nazis. Indeed, the former is worse. American nazis weren't fighting against the US necessarily. They were fighting for Germany (Germany had no beef with us). People like Al Awalki are actively fighting against us and refuse to submit themselves to the criminal justice system. What due process rights should they have? "due process" has always been very flexible, not hard and fast.
It's not that you're bringing up historical context. It's that your analogies overreach and don't make your points.
Of course we go to war for our interests. However, prior to Iraq, there was typically an existing conflict. Further, especially in more recent history, we at least attempted to manufacture some military pretext (Gulf of Tonkin, etc.) The difference with Iraq--and it's hard to believe that you really don't see this--is that there was no conflict and Iraq was not engaged in any hostile military action. We simply attacked them because of what the Executive declared they might do (WMDs or no).
The point is that it represents a new thinking and acceptance of the degree of power vested in the Executive. Even the architects of this power grab acknowledge this fundamental difference. See "Pax Americana" from the Project For The New American Century.
Edit: More specifically, see the report: "Rebuilding America's Defenses: Strategy, Forces and Resources For a New Century"
Your rebuttal regarding drones and Nazis falls down even more. Of course if a U.S. citizen is taking up arms with a nation that is openly at war with the U.S. (as eventually was the case), and is actively engaged on the battlefield, then the U.S. is justified in making no distinction between him and the enemy.
But, that the Executive has the right to declare that a U.S. citizen is an enemy combatant and may be killed with impunity is vastly different. You may take comfort in your degree of confidence that Al Awalki was a bad guy. However, the policy does not limit the Executive to targeting only those whom you believe to be deserving.
And, that is the very problem with your brand of thinking. Nearly everyone who ascribes to it does so under the belief that these policies and laws are necessary for "security" and will apply to only the bad guys.
But, that is the very point of our form of government and the Constitutional rights that we once held dear. The government (and worse, the Executive alone) doesn't get to decide unilaterally who is guilty or not. We are all entitled to due process, as "flexible" and inconvenient as that may be at times. It is our protection against the inevitable abuse that will arise in its absence, and it is one of our most powerful protections against tyranny.
None of this makes your case in any event. Your initial argument was that the Executive has no more power than they've had in the past. The minutiae of drones vs. Nazis into which you've waded just speaks to whether you think the Executive should have such increased power. In doing so, you are actually acknowledging that they do, in fact, have it, thereby making my point.
Something else that you may not have noticed is that your historical comparisons--invalid as they are--point to various incidents across centuries in your search for precedent. But, notice that these did not all take place at one time. It is, in part, the sum total of all of these powers and abuses invested in our Executive at once that represents such a vast increase in power.
The problem of habeas corpus isn't to protect Al Awalki, it is to prevent the government from torturing Al Avalki for ten years and then saying, oops, we got the wrong guy.
I absolutely agree that if Al Awalki was being detained by the government on American soil, he would have been entitled to file a habeas petition to contest his detention. Absolutely no doubt, and there was an 8-1 Supreme Court decision just this decade, post-9/11, that reaffirmed this principle. Habeas is the bedrock of our civil liberties and we should guard it jealously.
But habeas is a procedure for challenging illegal detention, meanwhile Al Awalki was a fugitive. He was not in the hands of U.S. authorities, on U.S. soil. He took up arms against America in Yemen, and was hiding, evading capture. Habeas is inapplicable to a person who is evading the government's attempts to bring him to justice, in effect evading the government's attempts to give him due process. It is inapplicable by the very nature of the device--a writ from a court to order the release of a prisoner being held by an executive authority within the court's jurisdiction. No U.S. court had jurisdiction over Al Awalki.
These guys always assume the government only takes freedoms from the bad actors, but, that logic is completely circular. The entire point of our system is that the government doesn't get to make that determination unilaterally. When they do, and in particular when the Executive alone does so, it's called a dictatorship.
Last I checked, American citizens in America aren't being dragged in front of loalty hearings.
Killing an Arab terroris hiding in Yemen actively fighting against the US is not a summary exection. Al Awalki had plenty of chances over years to turn himself in and take advantage of due process.
