essence of Government is power; and power, lodged as it must be
in human hands, will ever be liable to abuse." ~ James
Over the course
of his first year in office, Barack Obama has shown himself to be
a skillful and savvy politician, saying the things Americans want
to hear while stealthily and inexorably moving forward the government’s
agenda of centralized power. For example, in one breath, Obama pays
lip service to the need for greater transparency in government,
while in another, he issues an executive order that will result
in even more government secrecy.
He is aided
in this Machiavellian mindset by a trusting populace inclined to
take him at his word and a mainstream media seemingly loath to criticize
him or scrutinize his actions too closely. A perfect example of
this is the media’s relative lack of scrutiny over Obama’s recent
transformation of Executive Order (EO) 12425 from a document that
constitutionally limits the International Criminal Police Organization’s
(Interpol) activities domestically to one that establishes it as
an autonomous police agency within the U.S.
Those who have
voiced their concerns about this domestic empowerment of Interpol
by President Obama – and that’s exactly what it is – have
been soundly criticized for fomenting political hysteria. But there
is legitimate cause for concern. This presidential directive could
undermine civil liberties and render the Fourth Amendment null and
background on EO 12425. Issued by President Ronald Reagan in 1983,
EO 12425 recognized Interpol as an international organization with
certain privileges and immunities afforded to foreign diplomats.
However, Reagan structured his executive order to ensure that Interpol,
like every other law enforcement agency in this country, was accountable
to the rule of law.
Aided by some
crafty legal editing, Obama has manipulated Reagan’s directive in
such a way as to remove those restrictions so that Interpol now
stands apart from domestic law enforcement agencies, its actions
and records effectively immune from legal scrutiny. It was a shrewd
move on Obama’s part, so shrouded in a legal parsing of semicolons
and redactions that it is barely comprehensible to the average citizen
(unless you happen to have a few attorneys on hand who can sift
through the historical record to make sense of the changes). But
when you compile all the changes, the amended text of the Executive
and assets of international organizations, wherever located and
by whomsoever held, shall be immune from search, unless such immunity
be expressly waived, and from confiscation. The archives of international
organizations shall be inviolable.
The key here
is the word "inviolable," which means that Interpol assets,
records and other property are no longer subject to the search and
seizure provisions of the Fourth Amendment, nor are they subject
to public scrutiny under the Freedom of Information Act.
It should come
as little surprise that when the White House issued the amended
executive order on December 17, 2009, it issued no press releases
and thus generated little in the way of media attention. It must
be said, however, that had George W. Bush attempted to slip something
like this through a week before Christmas, he would have and should
have been soundly lambasted by the media.
should be hearing more about Obama’s EO 12425 – from the White
House, from Congress, from the media. In fact, Congress should be
holding hearings on the ramifications of allowing Interpol to operate
with complete autonomy outside the strictures of the Constitution
and above the rule of law in this country.
188 countries, Interpol supposedly deals with crimes that overlap
various countries such as terrorism, organized crime, war crimes,
piracy, drug trafficking, child pornography and genocide. The agency
maintains a bureau in each member country and channels information
and requests to the appropriate law enforcement agency in each country.
It also works closely with international tribunals, such as the
International Criminal Court, to locate and detain alleged fugitives.
In the U.S.,
Interpol is headquartered at the Justice Department in Washington,
DC, one of the most powerful of the government agencies and the
one responsible for overseeing all law enforcement within America.
All law enforcement agencies that fall under the jurisdiction of
the Justice Department, including the FBI and the Drug Enforcement
Agency, are subject to the rigorous safeguards of the Constitution,
the Bill of Rights and the laws passed by Congress.
no longer apply to Interpol, whose records cannot be obtained through
FOIA requests – which act as an important safeguard against
governmental abuse – nor are they subject to investigation
by other federal agencies or the courts (unless Interpol itself
It’s hard to
know exactly what the fallout from this executive order will be,
but the ramifications for the American people could be ominous.
For instance, if Interpol engages in illegal and/or unconstitutional
activities against American citizens, it will be impossible for
U.S. citizens to obtain information – via subpoena or other
commonly used legal methods – regarding its records or activities.
any information shared by the FBI or other American intelligence
agencies with Interpol could also be exempt from FOIA and Fourth
Amendment protections. At this point, the rule of law breaks down
completely. American intelligence and police agencies, when and
if they share information, would also be above the law.
also pave the way for a global police state – one in which
information made available to Interpol by American agencies can
and most likely will be shared with global police agencies around
the world. In other words, foreign intelligence agencies could eventually
spy on Americans.
are enough concerns about the impact of EO 12425 on our civil liberties
to warrant further discussion. It must be remembered that James
Madison, the "father" of the U.S. Constitution and the
Bill of Rights and the fourth president of the United States, advised
that we should "take alarm at the first experiment upon our
not you consider President Obama’s Interpol executive order to be
cause for alarm, one must agree that this is far from the first
experiment on our liberties. In fact, we’ve seen all this before.
It’s Bush redux. Slowly, more Americans are waking up to the fact
that civil liberties violations that began under the Bush presidency
are continuing under the Obama presidency.
Even the ACLU,
which embraced Obama a mere year ago, has recently condemned his
record on civil liberties. "We’re increasingly disappointed
and alarmed by the current administration’s stance on accountability
for torture," said Jameel Jaffer, director of the ACLU’s National
Security Project, during a conference call with reporters. "On
every front, the [Obama] administration is actively obstructing
accountability. This administration is shielding Bush administration
officials from civil liability, criminal investigation and even
public scrutiny for their role in authorizing torture."
bigger danger, however, is that a shift toward authoritarianism
is underway and only small pockets of Americans realize it. Certainly,
the mainstream media is not reporting on it, nor do they primarily
function as watchdogs, guarding against encroachments of our rights.
Yet it is unmistakable – we have been creeping towards fascism
for some time now, as Bertram Gross foretold some thirty years ago.
Writing in his insightful book Friendly Fascism, he predicted, "The
new fascism will be colored by national and cultural heritage, ethnic
and religious composition, formal structure, and geopolitical environment."
for black shirts, mass parties or men on horseback will miss the
telltale clues of creeping fascism. In America, it would be supermodern
and multi-ethnic – as American as Madison Avenue, executive
luncheons, credit cards, and apple pie. It would be fascism with
a smile. As a warning against its cosmetic façade, subtle
manipulation, and velvet gloves, I call it friendly fascism. What
scares me most is its subtle appeal.