Tuesday, January 24, 2012


I’m not minimizing the importance of either fight: it’s true that SOPA (like the NDAA) would codify these radical powers further and even expand them beyond what the U.S. Government already wields (regarding SOPA’s unique provisions, see Julian Sanchez’s typically thorough analysis). But the defining power that had everyone so up in arms about SOPA — shutting down websites with no trial — is one that already exists in quite a robust form, as any thwarted visitors to Megaupload will discover. There are two points worth making about all of this:
(1) It’s wildly under-appreciated how unrestrained is the Government’s power to do what it wants, and how little effect these debates over various proposed laws have on that power. Contrary to how it was portrayed, the Obama administration’s threatened veto of the NDAA rested largely on the assertion that they did not need a law vesting them with indefinite detention powers because they already have full power to detain people without a trial: not because any actual law expressly vested that power, but because the Bush and Obama DOJs both claimed the 2001 AUMF silently (“implicitly”) authorized it and deferential courts have largely acquiesced to that claim. Thus, Obama argued about indefinite detention in his NDAA veto threat that “the authorities codified in this section already exist” and therefore “the Administration does not believe codification is necessary,” and in his Signing Statement the President similarly asserted that “the executive branch already has the authority to detain in military custody” accused Terrorists “and as Commander in Chief I have directed the military to do so where appropriate.” In other words: we don’t need any law expressly stating that we can imprison people without charges: we do it when we want without that law.
That’s more or less what happened with the SOPA fight. It’s true that website-seizures-without-trials are not quite as lawless as indefinite detentions, since there are actual statutes conferring this power. But it nonetheless sends a very clear message when citizens celebrate a rare victory in denying the Government a power it seeks — the power to shut down websites without a trial — only for the Government to turn around the very next day and shut down one of the world’s largest and best-known sites. Whether intended or not, the message is unmistakable: Congratulations, citizens, on your cute little “democracy” victory in denying us the power to shut down websites without a trial: we’re now going to shut down one of your most popular websites without a trial.
(2) The U.S. really is a society that simply no longer believes in due process: once the defining feature of American freedom that is now scorned as some sort of fringe, radical, academic doctrine. That is not hyperbole. Supporters of both political parties endorse, or at least tolerate, all manner of government punishment without so much as the pretense of a trial, based solely on government accusation: imprisonment for life, renditions to other countries, even assassinations of their fellow citizens. Simply uttering the word Terrorist, without proving it, is sufficient. And now here is Megaupload being completely destroyed — its website shuttered, its assets seized, ongoing business rendered impossible — based solely on the unproven accusation of Piracy.

rest here:   http://www.salon.com/2012/01/21/two_lessons_from_the_megaupload_seizure/singleton/

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