Courtrooms in the Clouds:

9-11 and the Fate of the Republic

by J. D. Obenberger, Attorney at Law

© MMI J. D. Obenberger.

First published in Chicago's Gentlemen's Pages

From the day it happened, American public leaders have compared the events of September 11, 2001 to the bombing of Pearl Harbor, and the current war against terrorism to World War II. The mainstream media has fully co-operated in giving this impression to the people, and selling to it the idea that exceptional times and exceptional dangers will require exceptional sacrifices, and in urging us to forge an America united in its willingness to endure any hardship, surrender any liberty, and to grant to government any power that might aid in an ultimate victory in that "war".

As a result of the actual event, as a result of the government's actions, and as a result of the media's message, we have become a country transformed. Transformed in all of the ways that we do business and travel and in the enthusiasm in which we have surrendered the privileges of a free society, earned and paid for with the blood of our patriot ancestors and war dead.

I stood in a Las Vegas airport yesterday and watched from behind Plexiglas as the bags of random travelers and their most intimate contents were subjected to public search. Underwear, lingerie, you name it. No one dared to object, of course, because the safety of the Republic depends importantly not only on such searches, but on the fact that each is a public search embarrassingly trampling the privacy of persons, all in plain public view. But I'm not sure I understand why the Republic is safer when the curious traveler standing in line can see if some woman's vibrator will be the next thing to be held up to view by the security personnel on the other side of the Plexiglas. My own thought is that such a search protocol is no more effective in finding explosives or guns or toenail clippers with files than one conducted privately, with due regard to the dignity of law abiding travelers moving about as citizens of a free republic.

My dark and cynical nature tells me that an educational and didactic point was being made in the airport in the desert, a gesture engineered somewhere by somebody to desensitize the American pubic to the wholesale destruction of their privacy and liberty: "The Fourth Amendment just doesn't count anymore, your privacy is meaningless, your dignity is worth less, we will search whatever we want to search, we will look into whatever we want to look into without regard to your sense of personal dignity, and eventually, you will forget what it meant to have a zone of personal privacy in a free country."

Why else do it in public? A private search, respecting the notion of personal privacy against public glimpses into our personal belongings, would protect safety and security just as well.

In every age, in every country that has been free in any measure, certain agents of government have always had an argument that unique exigencies of special circumstances in allegedly critical times have justified the erosion or destruction of liberty. I'm sure that in most cases, the people aiming to scalp liberty are sincere people, but people nonetheless with an attenuated view of the importance of freedom, liberty, and privacy as fundamentally good things in themselves that require no justification, and the limitation or restriction of which is inherantly negative. In the fifties it was the Communist Menace. In the Sixties it was the Silent Majority's perception of the threat of the antiwar movement. In the Seventies and Eighties it was airplane hijacking and the War on Drugs.

What scares the hell out of me about this is the prospect that all of the changes that have been brought about seem to be calculated to change America permanently.

A few weeks ago, I attended a small dinner where a bright, sincere, young Congressmen from Illinois gave a keynote talk, centering on the administration's reaction to 9-11. He described the mood of President Bush and the urgency of the situation. I was delighted by his response to one questioner who asked when the government would stop pussyfooting around, declare marial law, put a muzzle on the press, and clamp down with an iron boot: The congressman reminded the questioner that the whole point of our country is freedom, and that our nation isn't worth defending if it doesn't preserve fundamental freedom. That was encouraging. But less than encouraging was his response when he was asked who the enemy is and when we'll know when this "war" is over. Truthfully, he noted that there never will be any surrender, and that our enemy is a shadowy and elusive and informal loose association of persons. He said we'll know it's over when the terrorist events stop, and that it will be low key and quiet.

So, when will our liberties be restored if we don't know exactly when it's over? The smart answer seems to be "never". Because we'll never be sure. So the justification to prevent more terror will always justify whatever intrusions the government wants.

The shopping list of additional government powers that the Justice Department has been seeking for years has now become law, and we are less secure than ever in our use of phones and computers. They wanted these things for years before 9-11 and they argued that public safety required them. Now they have them, and your internet service provider must and will give up a list of the sites you visit and of your email traffic without any warrant at all, without probable cause, but just because the government wants those things. And not just if you are a suspected terrorist, but for any reason or no reason at all. I don't think that I'm any safer because of that, rather I think that all of us are more imperilled.

Don't hold your breath waiting for a day when anyone in government will tell us (or our great-grandchildren) that the "war" is over, that we have won, and that full liberties will now be restored. That day will never happen, if for no other reason than because it can't happen, because this ongoing effort is not a war against any nation, but an ongoing police action against individual criminals and small criminal units, and they will keep popping up forever.

Our Attorney General has become emboldened to advance his authoritarian agenda in other spheres as well, including a threat to take away the federal drug licenses of physicians in Oregon who assist suicide with drugs, a practice that is entirely legal in that state.

Now, as always, the only final checkpoint government must pass through before demolishing personal liberty is review by our judges and courts. And now those who justify such wholesale destruction of liberty have found a way around the judges, at least in some cases.

Yesterday the President promulgated an executive order authorizing Military Commissions to try persons secretly. There were a lot of crazy things said in justification by nameless administration spokesmen to the press about why it was necessary, including a lot of outright malarkey. They said that the existence of classified material in some trials mandates such a procedure to protect the nation. They said that the Military Rules of Evidence are so "strictured" as to interfear with the government's aims. This is an area I know a bit about, being a graduate of the Army Judge Advocate General's School, being a former Army JAG Captain, and having done courts martial by the dozens for four years, under the Military Rules of Evidence. These Rules have elaborate provisions for the safeguarding of classified information, because such material is routinely part of military operations and any military justice system must take that into account. The Rules protect classified information. The Rules themselves are almost identical in their main parts with the Federal Rules of evidence, which any practicing trial lawyer will tell you are so broad and inclusive as to permit the government to admit almost anything that it would want to admit in a trial except maybe rank hearsay.

No, the government wasn't honest about why it has authorized military commissions. The chief value of such commissions is that the Supreme Court, at the end of World War II, in refusing to review convictions of Japanese Generals tried for war crimes under such commissions, said that they were a pure exercise of executive military power and that civiilian courts had no power to review any of their findings or verdicts or sentences.

It is a bit more than scary to any thinking person when the executive leaders of government take the power to try and execute anyone they please without a public trial or the possibility of review by a real judge. And that's what they've done. Really.

Perhaps the day will come when the American People will realize that an awfull but isolated terrorist event has transformed America into a police state, with their consent, and they may reconsider whether the actual threat justified the destruction of liberty: They have so acted in a climate where the seemingly unrelated dissemination of anthrax, a-la-unibomber, has been percieved as a related terrorist act when it almost certainly is not, where even the tragic but routine crash of an airplane in New York because of mechanical maintenance problems, and a host of other tragic but routine calamities, are percieved as part of terrorist action because of the frenzy that has been whipped up in the public mind. By the time people look rationally at the scope of the actual risk we faced, and what we gave up at the urging of government, a few years from now, it is quite possible that it will simply be too late for the democratic process to be able to reverse what has taken place.

Let us all pray for America, and let us pray for the safety of the angel holding a torch of freedom, our national guardian angel whose statue still stands on an island in the harbor of New York.

This article is written to generally inform the public and does not provide legal advice nor does it establish an attorney-client relationship. If you have a legal issue or question, contact a lawyer. If you are arrested, make no statement and contact a lawyer immediately.

 Joe Obenberger is a Chicago Loop lawyer concentrating in the law of free expression and liberty under the United States Constitution, and his firm has represented many owners, employees, and customers of adult-oriented businesses, both online and in the real world. He can be reached in the office at 312 558-6420 or paged in any emergency at 312 250-4118. His e-mail address is

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