Reflections From The Twilight Zone of Liberty

    Reflections From The Twilight Zone of Liberty: Iraq, Terrorism and Free Speech

 By J. D. Obenberger, Attorney at Law,



Been away so long I hardly knew the place
Gee it's good to be back home
Leave it till tomorrow to unpack my case
Honey disconnect the phone
I'm back in the U.S.S.R.
You don't know how lucky you are, boy
Back in the U.S.S.R.

 “Back in the U.S.S.R.”, John Lennon/Paul McCarney, Copyright 1968 Northern Songs Ltd.


Call it a Sign of the Times.

 Twenty-eight miles north of the Loop in Chicago’s North Shore suburbs, not far from my home, the City of Highland Park has launched a program called “Character Counts”. Implimenting this program, the City uses the backside of folding, temporary Stop signs near school crossings  to display various “moral” platitudes to passing drivers when the stop signs are not in use. I almost stopped in my tracks in astonishment during the height of the Iraq War news coverage when I passed one that proclaimed, “Character Counts: Respect Authority.”

 The legal and political traditions of our country have largely been built, however, on the opposite principle: The genius of the American Constitution - separating state power into three competing branches of government, granting a central government a finite set of enumerated powers, reserving all remaining powers and rights to the states and to the people, and in guaranteeing certain inviolate core freedoms to the people – arises from the deep cynicism and suspicion of our Founders about the nature of government and of the people who hold power. The Founders were no fools: They knew that no law or document alone can preserve Liberty. Two hundred and twenty-seven years ago, on a battlefield at Lexington-Concord a revolution began whose values have endured only because they have continued to live in the hearts, minds and dreams of a free people.

 Not so long ago, America lived under the very real threat of sudden nuclear incineration by a set of very real enemies that fought the United States on every level and which collectively held a committment to putting our nation out of business for good. Communist regimes sent spies and agents here by the hundreds and recruited many others here as well; The Communists regularly sailed electronic spy trawlers and spy submarines and spy planes to the limits of our territorial waters and air to listen and to test our reactions and defenses; They fomented revolution and insurrection in countless places around the world of strategic interest to the United States and fought numerous proxy wars and battles against us and our friends. In places like Hungary and Czechoslovakia they mercilessly cut down brave freedom fighters by force of arms. The Communists shot down passenger airliners and seized American vessels on the high seas and took our sailors prisoner. Their Iron boot came down with fury on idealistic young students in Tianamen Square and crushed them and the replica of the Statue of Liberty that inspired the Chinese freedom fighters. Their ruthless tactics regularly and dependably included torture, repression, suppression of religious expression, secret trials, interminable secret imprisonments without judicial oversight, and they staged scripted show trials in every place they governed.  Their use of secret informants for the secret police became pervasive throughout every echelon of society. Printing presses and even mimeograph machines were licensed and registered and all of the media of mass communication, print and broadcast, disseminated only state-censored propaganda. Pornography and Bibles alike were contraband of the most serious kind. There was a time in my memory when goods manufactured in Communist countries were denied import into the United States were illegal to sell; I can remember my altert attention once, in a Zurich department store when I first saw low-quality tools from Red China displayed for sale. These products were banned here because they were the product of slave labor, made by workers paid outrageously low wages. Evenually those prohibitions were eased and eliminated, the manufacture of consumer goods left the United States, and American workers, who could never compete with the enslaved workers in China, lost their factory jobs, spending the rest of their careers asking customers whether they wanted fries with their purchase. The system of union wages, fair treatment, and decent pensions to support a modest retirement with self-respect, for which thousands of union workers valiently struggled against adversity, including company violence, wholly fell apart. (The American Way of Life eventually fell victim to the triumph of Communist slaves and our government looking the other way at illegal immigration here and the employment of third-world immigrants willing to work cash for wages that could never sustain a middle-class lifestyle.)

 In that world – and in that time – John F. Kennedy had proclaimed the moral agenda of our nation, defining the issue precisely for his generation and for mine:

 [T]he same revolutionary beliefs for which our forebears fought are still at issue around the globe—the belief that the rights of man come not from the generosity of the state, but from the hand of God.   We dare not forget today that we are the heirs of that first revolution. Let the word go forth from this time and place, to friend and foe alike, that the torch has been passed to a new generation of Americans—born in this century, tempered by war, disciplined by a hard and bitter peace, proud of our ancient heritage—and unwilling to witness or permit the slow undoing of those human rights to which this Nation has always been committed, and to which we are committed today at home and around the world.  Let every nation know, whether it wishes us well or ill, that we shall pay any price, bear any burden, meet any hardship, support any friend, oppose any foe, in order to assure the survival and the success of liberty.

Thoughout this long and difficult struggle, in that dangerous age, Americans rarely sacrificed their precious liberties for additional security. Federal agents were held to the consitutional limits imposed on them in dealing with a free and open society. Judges reviewed warrant applications and supressed illegal arrests and searches – and expanded these protections to state prosecutions and police officers at the height of the Cold War. The execution of warrants was open and announced. American citizens were not held without bail and without access to a lawyer because the President determined them to be unlawful combatants. Nor did we hold hundreds of military prisoners in violation of the Geneva Conventions in Cuba. Librarians were not required to give up lists of what their patrons read and prohibited on pain of imprisonment from telling the patrons that agents had been asking about their reading habits.The press asked tough questions about our policies and actions.

 Whatever real risks to its security that the United States may now face, they are by all objective critera far less serious to our national survival than the Cold War and all of its episodes. I grew up in an age when it was the Communists who stormed out of the UN Security Council debates in anger and I have lived long enough to find my country doing the same, to find my Secretary of State presenting false and misleading documents to the UN in support of a position regarded as immoral by that large part of the civilized world that we could not bully or bribe. An age when few in the press asked tough questions about it or the shocking a change in the course of American foreign policy that such dishonesty announced.

 It was Communist North Vietnam which took the villanous and barbaric position that the American pilots it had captured dropping bombs over its territory were war criminals deserving no rights under the Geneva Conventions, an age in which such a position was reviled as wholly indefensible and illegitimate by the entire civilized world. I have lived long enough to see my government embrace the same argument and apply it to Afghani boys and elderly who defended their country against our invasion, detaining them without POW status or its privileges, to witness a news media that has little interest in so shocking a change in the course of American policy. Long enough to see our military establishment brandish photos of captured Iraqis national guardsmen one day and our Secretary of Defense the next day brand the makers of videos depicting our own captive soldiers as war criminals. To see the virtual expungment of that video from every website easily accessible to Americans except the again-courageous To see Vortech Hosting yank the hosting for alternative news site because it ran still photographs of the American prisoners and war dead taken from Al-Jazeera, and to hear Vortech defend its conduct by branding war pictures as “adult” in nature. We, as a people have become increasingly intollerant of dissent.

 I grew up in an age when the Russian and Chinese Communists were the bad guys, in large part because they jammed Radio Free Europe and Radio Liberty. But today we live together in an age when Al-Jazeera’s website, containing hiddeous pictures of Iraqui war dead, sustained a continual and pervasive denial of service attack. We regularly and dependably take out opposition broadcast media in places like Afghanistan and Iraq. When the American government urged the media to suppress tapes eminating from Al Quaida with the explaination that the tapes may contain coded messages, the media reported that fact and largely complied; Few asked the question about whether the tapes might disclose a motive for the attacks on the USS Cole, the Pentagon, and the WTC that might go beyond vague American generalities about “jealously and envy for our way of life.”

 There once was a time when a government that tracked all of the dealings and affairs and communications and purchases of its citizens, that compiled these things into massive data bases, that restriced the free flow of currency, that emplaced surveilance devices in public places ubiquitously and which searched private places without notice of governmental authority, that worked actively to suppress dissenting voices both domestically and internationally, would have been viewed as a totalitarian regime suitable to become our enemy because of its conduct.

 The question now is whether we are becoming our enemy as we trade Liberty for the chimeral promises of our government to deliver safety and security.

 We must ever be mindful that we have certainly entered into a twilight zone of freedom. We must constantly assure that we remember the way back. Those of us who depend on the tolerance of a free society to communicate our message must assure by every means that such tolerance endures. We must jealously guard our dwindiling liberties; In an era of a comparatively ineffective national press, it becomes the special obligation of those of us with access to the tools of the Internet to assure a lively and spirited debate by making the real but supressed news available to a wide audience. And we must teach Americans what the schools and other public institutions have neglected to teach for a generation, that it is the patriotic imperative of an American to question authority.

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Copyright 2003-2011 J. D. Obenberger. All rights reserved.

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. His e-mail address is

J. D. Obenberger and Associates are available for consultation, representation, and defense of adult-oriented businesses.