This article originally appeared on TomDispatch.com. In light of the Bradley Manning verdict, this seemed worth re-reading.
On July 30, 1778, the Continental Congress created the first whistleblower protection law, stating “that it is the duty of all persons in the service of the United States to give the earliest information to Congress or other proper authority of any misconduct, frauds, or misdemeanors committed by any officers or persons in the service of these states.”
Two hundred thirty-five years later, on July 30, 2013, Bradley Manning was found guilty on 20 of the 22 charges for which he was prosecuted, specifically for “espionage” and for videos of war atrocities he released, but not for “aiding the enemy.”
Days after the verdict, with sentencing hearings in which Manning could receive 136 years of prison time ongoing, the pundits have had their say. The problem is that they missed the most chilling aspect of the Manning case: the way it ushered us, almost unnoticed, into post-Constitutional America.
The Weapons of War Come Home
Even before the Manning trial began, the emerging look of that new America was coming into view. In recent years, weapons, tactics, and techniques developed in Iraq and Afghanistan as well as in the war on terror have begun arriving in “the homeland.”
Consider, for instance, the rise of the warrior cop, of increasingly up-armored police departments across the country often filled with former military personnel encouraged to use the sort of rough tactics they once wielded in combat zones. Supporting them are the kinds of weaponry that once would have been inconceivable in police departments, including armored vehicles, typically bought with Department of Homeland Security grants. Recently, the director of the FBI informed a Senate committee that the Bureau was deploying its first drones over the United States. Meanwhile, Customs and Border Protection, part of the Department of Homeland Security and already flying an expanding fleet of Predator drones, the very ones used in America’s war zones, is eager to arm them with “non-lethal” weaponry to “immobilize targets of interest.”
Above all, surveillance technology has been coming home from our distant war zones. The National Security Agency (NSA), for instance, pioneered the use of cell phones to track potential enemy movements in Iraq and Afghanistan. The NSA did this in one of several ways. With the aim of remotely turning on cell phones as audio monitoring or GPS devices, rogue signals could be sent out through an existing network, or NSA software could be implanted on phones disguised as downloads of porn or games.
Using fake cell phone towers that actually intercept phone signals en route to real towers, the U.S. could harvest hardware information in Iraq and Afghanistan that would forever label a phone and allow the NSA to always uniquely identify it, even if the SIM card was changed. The fake cell towers also allowed the NSA to gather precise location data for the phone, vacuum up metadata, and monitor what was being said.
At one point, more than 100 NSA teams had been scouring Iraq for snippets of electronic data that might be useful to military planners. The agency’s director, General Keith Alexander, changed that: he devised a strategy called Real Time Regional Gateway to grab every Iraqi text, phone call, email, and social media interaction. “Rather than look for a single needle in the haystack, his approach was, ‘Let’s collect the whole haystack,’â€Š” said one former senior U.S. intelligence official. “Collect it all, tag it, store it, and whatever it is you want, you go searching for it.”
Sound familiar, Mr. Snowden?
Welcome Home, Soldier (Part I)
Thanks to Edward Snowden, we now know that the “collect it all” technique employed by the NSA in Iraq would soon enough be used to collect American metadata and other electronically available information, including credit card transactions, air ticket purchases, and financial records. At the vast new $2 billion data center it is building in Bluffdale, Utah, and at other locations, the NSA is following its Iraq script of saving everything, so that once an American became a target, his or her whole history can be combed through. Such searches do not require approval by a court, or even an NSA supervisor. As it happened, however, the job was easier to accomplish in the U.S. than in Iraq, as internet companies and telephone service providers are required by secret law to hand over the required data, neatly formatted, with no messy spying required.
When the U.S. wanted something in Iraq or Afghanistan, they sent guys to kick down doors and take it. This, too, may be beginning to happen here at home. Recently, despite other valuable and easily portable objects lying nearby, computers, and only computers, were stolen from the law offices representing State Department whistleblower Aurelia Fedenisn. Similarly, a Washington law firm representing NSA whistleblower Tom Drake had computers, and only computers, stolen from its office.
In these years, the FBI has brought two other NSA wartime tools home. The Bureau now uses a device called Stingray to recreate those battlefield fake cell phone towers and track people in the U.S. without their knowledge. Stingray offers some unique advantages: it bypasses the phone company entirely, which is, of course, handy in a war zone in which a phone company may be controlled by less than cooperative types, or if phone companies no longer cooperate with the government, or simply if you don’t want the phone company or anyone else to know you’re snooping. American phone companies seem to have been quite cooperative. Verizon, for instance, admits hacking its own cellular modems (“air cards”) to facilitate FBI intrusion.
The FBI is also following NSA’s lead implanting spyware and other hacker software developed for our war zones secretly and remotely in American computers and cell phones. The Bureau can then remotely turn on phone and laptop microphones, even webcams, to monitor citizens, while files can be pulled from a computer or implanted onto a computer.
Among the latest examples of war technology making the trip back to the homeland is the aerostat, a tethered medium-sized blimp. Anyone who served in Iraq or Afghanistan will recognize the thing, as one or more of them flew over nearly every military base of any size or importance. The Army recently announced plans to operate two such blimps over Washington, D.C., starting in 2014. Allegedly they are only to serve as anti-missile defenses, though in our war zones they were used as massive surveillance platforms. As a taste of the sorts of surveillance systems the aerostats were equipped with abroad but the Army says they won’t have here at home, consider Gorgon Stare, a system that can transmit live images of an entire town. And unlike drones, an aerostat never needs to land. Ever.
Welcome Home, Soldier (Part II)
And so to Bradley Manning.
As the weaponry and technology of war came home, so did a new, increasingly Guantanamo-ized definition of justice. This is one thing the Manning case has made clear.
As a start, Manning was treated no differently than America’s war-on-terror prisoners at Guantanamo and the black sites that the Bush administration set up around the world. Picked up on the “battlefield,” Manning was first kept incommunicado in a cage in Kuwait for two months with no access to a lawyer. Then, despite being an active duty member of the Army, he was handed over to the Marines, who also guard Guantanamo, to be held in a military prison in Quantico, Virginia.
What followed were three years of cruel detainment, where, as might well have happened at Gitmo, Manning, kept in isolation, was deprived of clothing, communications, legal advice, and sleep. The sleep deprivation regime imposed on him certainly met any standard, other than Washington’s and possibly Pyongyang’s, for torture. In return for such abuse, even after a judge had formally ruled that he was subjected to excessively harsh treatment, Manning will only get a 112-day reduction in his eventual sentence.
Eventually the Obama administration decided Manning was to be tried as a soldier before a military court. In the courtroom, itself inside a military facility that also houses NSA headquarters, there was a strikingly gulag-like atmosphere. His trial was built around secret witnesses and secret evidence; severe restrictions were put on the press — the Army denied press passes to 270 of the 350 media organizations that applied; and there was a clear appearance of injustice. Among other things, the judge ruled against nearly every defense motion.
During the months of the trial, the U.S. military refused to release official transcripts of the proceedings. Even a private courtroom sketch artist was barred from the room. Independent journalist and activist Alexa O’Brien then took it upon herself to attend the trial daily, defy the Army, and make an unofficial record of the proceedings by hand. Later in the trial, armed military police were stationed behind reporters listening to testimony. Above all, the feeling that Manning’s fate was predetermined could hardly be avoided. After all, President Obama, the former Constitutional law professor, essentially proclaimed him guilty back in 2011 and the Department of Defense didn’t hesitate to state more generally that “leaking is tantamount to aiding the enemies of the United States.”
As at Guantanamo, rules of evidence reaching back to early English common law were turned upside down. In Manning’s case, he was convicted of espionage, even though the prosecution did not have to prove either his intent to help another government or that harm was caused; a civilian court had already paved the way for such a ruling in another whistleblower case. In addition, the government was allowed to label Manning a “traitor” and an “anarchist” in open court, though he was on trial for neither treason nor anarchy. His Army supervisor in the U.S. and Iraq was allowed to testify against him despite having made biased and homophobic statements about him in a movie built around portraying Manning as a sad, sexually-confused, attention-seeking young man mesmerized by WikiLeaks founder Julian Assange. Finally, the same judge who essentially harassed the press throughout Manning’s trial issued a 24-hour advance notice of her verdict to ensure maximum coverage only of the denouement, not the process.
Given all this, it is small comfort to know that Manning, nailed on the Espionage Act after multiple failures in other cases by the Obama administration, was not convicted of the extreme charge of “aiding the enemy.”
Not Manning Alone
Someday, Manning’s case may be seen as a bitter landmark on the road to a post-Constitutional America, but it won’t be seen as the first case in the development of the post-Constitutional system. Immediately following 9/11, top officials in the Bush administration decided to “take the gloves off.” Soon after, a wounded John Walker Lindh, the so-called American Taliban, was captured on an Afghan battlefield, held in a windowless shipping container, refused access to a lawyer even after he demanded one as an American citizen, and interrogated against his will by the FBI. Access to medical care was used as a bribe to solicit information from him. “Evidence” obtained by such means was then used to convict him in court.
Jose Padilla, a U.S. citizen who clumsily plotted to detonate a nonexistent “dirty bomb,” was held incommunicado for more three years, over a year of which was in a South Carolina military jail. He was arrested only as a material witness and was not formally charged with a crime until years later. He was given no means to challenge his detention under habeas corpus, as President Bush designated him an “enemy combatant.” Pictures of Padilla being moved wearing sound-proof and light-proof gear strongly suggest he was subjected to the same psychosis-inducing sensory deprivation used as “white torture” against America’s foreign enemies in Guantanamo.
Certainly, the most egregious case of pre-Manning post-Constitutional justice was the execution of American citizen Anwar al-Awlaki by drone in Yemen, without due process or trial, for being an al-Qaeda propagandist. In this, President Obama and his top counterterrorism advisors quite literally took on the role of judge, jury, and executioner. In a similar fashion, again in Yemen, the U.S. killed al-Awlaki’s American teenage son, a boy no one claimed was connected to terrorism. Obama administration lawyers went on to claim the legal right to execute U.S. citizens without trial or due process and have admitted to killing four Americans. Attorney General Eric Holder declared that “United States citizenship alone does not make such individuals immune from being targeted.”
Then-FBI Director Robert Mueller, asked in a Congressional hearing if the FBI could assassinate an American citizen in the United States, replied that he simply did not know. “I have to go back. Uh, I’m not certain whether that was addressed or not.” He added, “I’m going to defer that to others in the Department of Justice.” As if competing for an Orwellian prize, an unnamed Obama administration official told the Washington Post, “What constitutes due process in this case is a due process in war.”
So welcome to post-Constitutional America. Its shape is, ominously enough, beginning to come into view.
Orwell’s famed dystopian novel 1984 was not intended as an instruction manual, but just days before the Manning verdict, the Obama administration essentially buried its now-ironic-campaign promise to protect whistleblowers, sending it down Washington’s version of the memory hole. Post-9/11, torture famously stopped being torture if an American did it, and its users were not prosecutable by the Justice Department.
Similarly, full-spectrum spying is not considered to violate the Fourth Amendment and does not even require probable cause. Low-level NSA analysts have desktop access to the private emails and phone calls of Americans. The Post Office photographs the envelopes of every one of the 160 billion pieces of mail it handles, collecting the metadata of “to:” and “from:” addresses. An Obama administration Insider Threat Program requires federal employees (including the Peace Corps) to report on the suspicious behavior of coworkers.
Government officials concerned over possible wrongdoing in their departments or agencies who “go through proper channels” are fired or prosecuted. Government whistleblowers are commanded to return to face justice, while law-breakers in the service of the government are allowed to flee justice. CIA officers who destroy evidence of torture go free, while a CIA agent who blew the whistle on torture is locked up.
Secret laws and secret courts can create secret law you can’t know about for “crimes” you don’t even know exist. You can nonetheless be arrested for committing them. Thanks to the PATRIOT Act, citizens, even librarians, can be served by the FBI with a National Security Letter (not requiring a court order) demanding records and other information, and gagging them from revealing to anyone that such information has been demanded or such a letter delivered. Citizens may be held without trial, and denied their Constitutional rights as soon as they are designated “terrorists.” Lawyers and habeas corpus are available only when the government allows.
In the last decade, 10 times as many employers turned to FBI criminal databases to screen job applicants. The press is restricted when it comes to covering “open trials.” The war on whistleblowers is metastasizing into a war on the First Amendment. People may now be convicted based on secret testimony by unnamed persons. Military courts and jails can replace civilian ones. Justice can be twisted and tangled into an almost unrecognizable form and then used to send a young man to prison for decades. Claiming its actions lawful while shielding the “legal” opinions cited, often even from Congress, the government can send its drones to assassinate its own citizens.
One by one, the tools and attitudes of the war on terror, of a world in which the “gloves” are eternally off, have come home. The comic strip character Pogo’s classic warning — “We have met the enemy and he is us” — seems ever less like a metaphor. According to the government, increasingly we are now indeed their enemy.
This article also appeared on:
The Nation http://www.thenation.com/article/175589/welcome-post-constitution-america
Huffington Post: http://www.huffingtonpost.com/peter-van-buren/bradley-manning-trial_b_3707109.html
Michael Moore: http://www.michaelmoore.com/words/mike-friends-blog/welcome-post-constitution-america-what-if-your-country-begins-change-and-no-one-notices
Asia Times: http://www.atimes.com/atimes/World/WOR-01-060813.html
Mother Jones: http://www.motherjones.com/politics/2013/08/bradley-manning-constitutional-rights
Le Monde Diplomatique (English): http://mondediplo.com/openpage/welcome-to-post-constitution-america
Information Clearing House: http://www.informationclearinghouse.info/article35760.htm
Nation of Change: http://www.nationofchange.org/welcome-post-constitution-america-1375712052
Middle East online: http://www.middle-east-online.com/english/?id=60564
al-Arab online: http://www.alarabonline.org/english/display.asp?fname=\2013\08\08-05\zopinionz\970.htm&dismode=x&ts=8/5/2013%2011:15:21%20AM
Democratic Underground: http://www.democraticunderground.com/10023408050
Outlook India: http://www.outlookindia.com/article.aspx?287286
Smirking Chimp: http://smirkingchimp.com/thread/tom-engelhardt/50975/tomgram-peter-van-buren-the-manning-trial-began-on-9-11
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
In post-Constitution America “Planet of the Apes Meets the Flying Monkeys.”
Dr. Zaius: I have always known about man. From the evidence, I believe his wisdom must walk hand and hand with his idiocy. His emotions must rule his brain. He must be a warlike creature who gives battle to everything around him, even himself.
The essential weakness in the Americans’ (well, the old fashioned ones, the best ones) belief in “The Constitution”, is directly descended from the origins of Protestant Christianity, which was in fact a foundation of the US Constitution.
Here’s the root of America’s problem:
1. The US Constitution’s Bill of Rights, was based (insofar as it acknowledged any Rights of Man) NOT upon self-evident first principles, but rather upon the legacy of Christianity. (Gloss: Science, and especially Darwin’s particular view of evolution, does NOT indicate any kinds of Human Rights or equality, which are matters of faith rather than reason.)
2. America, being an essentially Protestant country (or in any case an anti-Catholic country), has always pretended to believe that no personal authority exists other than what individual minds choose;|
3. But if truth and morality are decided by individual minds, then the ultimate authorities of what is true and moral, are those who have the most power in this world.
4. Therefore, the “constitution” of the Americans is, after all, that “might makes right” – because if truth and right are decided by individuals without any correction by any Divine authority, then, simply, might is right, and power decides what is true.
So, you Americans, please don’t complain about what you have all signed up for. You are an anti-Catholic country. You regard moral absolutes as madness – therefore you cannot complain about subjecting yourselves to moral relativism.
And don’t answer back that your ultimate moral standard is “science” or “reason”, because those are essentially contestable terms. Genocide is reasonable, depending upon one’s premises.
You Americans claim that your system is based upon science, logic, and reason. And now you can see where that has led you.
Your American superstitions are as dead as Communism. You Americans worship false gods, including most of the Christians among you.
Dear MLCT, i read up above and wonder if it is not a protestant-catholic perspective so much as being a victim to the fates, in which old problems and discourses just seem to keep recylcing, thanks to the lack of spine and/or integrity of humankind,or at least – some of them, with added, old-fashioned greed and ruthless ambition
I’ll come out of the closet as a Roman Catholic and just say this
Unfortunately, there have been plenty of Catholic-oriented countries in our modern era that have been rather complicit in what has transpired, whether it’s harassing Greenwald’s partner, David Miranda, in Brasil or allowing rendition of a cleric from italy to egypt without a thorough investigation of facts that led to the Cleric being raped, precisely because a bunch of American lawyers suddenly have an aversion to conducting a legal questioning in our own country according to the laws they are supposed to uphold (and managed to pass the Bar)
Being weak-willed is just as guilty to being the first party to what are unConstitutional practices
Theodore Roosevelt, who happens to be my patron saint of the Civil Service lol, had great wisdom to impart on many things, including leadership and our government. He came from among the families of the American Protestant noblesse oblige, and i’ll just leave it here with two of his many profound wisdoms:
“Patriotism means to stand by the country. It does not mean to stand by the president or any other public official, save exactly to the degree in which he himself stands by the country. It is patriotic to support him insofar as he efficiently serves the country. It is unpatriotic not to oppose him to the exact extent that by inefficiency or otherwise he fails in his duty to stand by the country. In either event, it is unpatriotic not to tell the truth, whether about the president or anyone else.”
“The things that will destroy America are prosperity-at-any-price, peace-at-any-price, safety-first instead of duty-first, the love of soft living, and the get-rich-quick theory of life.”
~ Theodore Roosevelt
Good, solid, Peter.
Learn about political power.
Organize the opposition.
My upcoming book (See “What’s Next”) talks about Occupy, unions and the importance of grassroots organization. The voice for all this is a character named Preacher Casey, purposefully stealing the name and mission from a similar character in Grapes of Wrath who radicalizes Tom Joad.
Manning was not kept in Quantico for three years, nor was he “deprived of clothing, communications, legal advice, and sleep” for three years, as this article asserts. While Leavenworth is no picnic, Manning and his lawyer both have said that the treatment there is vastly better than Quantico, where she was treated as this piece and the Daily Beast article you link to, claim.
This error/exaggeration puts the rest of your assertions in doubt, which is a shame, because this is (or could be) a great chronicle of the times we live in.
Manning spent his first period of confinement in a literal animal cage in Kuwait previously used to contain military working dogs, without access to a lawyer and was subjected to sleep deprivation via regular reversals of his day/night cycle.
Manning, despite being an active duty Army PFC, was then sent to the Marine Brig in Quantico where he was indeed deprived of of clothing, communications, legal advice, and sleep and subjected to constant harassment, bullying and intimidation by his guards. The Marine guards chose to treat him that way as a potential suicide even though a Marine psychologist stated otherwise.
He was finally transferred to the Army prison at Leavenworth. There is nothing good or pleasant about being locked up in Leavenworth. I have seen the place in person; have you?
All told, he was held for three years before his trial began. There has been no explanation of why a three year pretrial confinement was needed, nor how it did not violate his right to a swift trial and due process.
The detention conditions prompted national and international concern. Juan E. Mendez, a United Nations Special Rapporteur on torture, published a report saying the detention conditions had been “cruel, inhuman and degrading.” In January 2011 Amnesty International asked the British government to intervene because of Manning’s status as a British citizen by descent. In early April, 295 academics (most of them American legal scholars) signed a letter arguing that the treatment was a violation of the United States Constitution.
My statements are no exaggeration. Your picking at small things causes you to miss the big ones.