America has entered its third great era: the post-constitutional one. In the first, in the colonial years, a unitary executive, the King of England, ruled without checks and balances, allowing no freedom of speech, due process, or privacy when it came to protecting his power.
In the second, the principles of the Enlightenment and an armed rebellion were used to push back the king’s abuses. The result was a new country and a new constitution with a Bill of Rights expressly meant to check the government’s power. Now, we are wading into the shallow waters of a third era, a time when that government is abandoning the basic ideas that saw our nation through centuries of challenges far more daunting than terrorism. Those ideas — enshrined in the Bill of Rights — are disarmingly concise. Think of them as the haiku of a genuine people’s government.
Deeper, darker waters lie ahead and we seem drawn down into them. For here there be monsters.
The Powers of a Police State Denied
America in its pre-constitutional days may seem eerily familiar even to casual readers of current events. We lived then under the control of a king. (Think now: the imperial presidency.) That king was a powerful, unitary executive who ruled at a distance. His goal was simple: to use his power over “his” American colonies to draw the maximum financial gain while suppressing any dissent that might endanger his control.
In those years, protest was dangerous. Speech could indeed make you the enemy of the government. Journalism could be a crime if you didn’t write in support of those in power. A citizen needed to watch what he said, for there were spies everywhere, including fellow colonists hoping for a few crumbs from the king’s table. Laws could be brutal and punishments swift as well as extra-judicial. In extreme cases, troops shot down those simply assembling to speak out.
Among the many offenses against liberty in pre-constitutional America, one pivotal event, the Stamp Act of 1765, stands out. To enforce the taxes imposed by the Act, the king’s men used “writs of assistance” that allowed them to burst into any home or business, with or without suspicion of wrongdoing. American privacy was violated and property ransacked, often simply as a warning of the king’s power. Some colonist was then undoubtedly the first American to mutter, “But if I have nothing to hide, why should I be afraid?” He soon learned that when a population is categorically treated as a potential enemy, everyone has something to hide if the government claims they do.
The Stamp Act and the flood of kingly offenses that followed created in those who founded the United States a profound suspicion of what an unchecked government could do, and a sense that power and freedom are not likely to coexist comfortably in a democracy. A balancing mechanism was required. In addition to the body of the Constitution outlining what the new nation’s government could do, needed was an accounting of what it could not do. The answer was the Bill of Rights.
The Bill’s preamble explained the matter this way: “…in order to prevent misconstruction or abuse of [the government’s] powers, that further declaratory and restrictive clauses should be added.” Thomas Jefferson commented separately, “[A] bill of rights is what the people are entitled to against every government on earth.”
In other words, the Bill of Rights was written to make sure that the new government would not replicate the abuses of power of the old one. Each amendment spoke directly to a specific offense committed by the king. Their purpose collectively was to lay out what the government could never take away. Knowing first-hand the dangers of a police state and unchecked power, those who wrote the Constitution wanted to be clear: never again.
It needs to be said that those imperfect men were very much of their era. They were right about much, but desperately wrong about other things. They addressed “humanity,” but ignored the rights of women and Native Americans. Above all, they did not abolish the institution of slavery, our nation’s Original Sin. It would take many years, and much blood, to begin to rectify those mistakes.
Still, for more than two centuries, the meaning of the Bill of Rights was generally expanded, though — especially in wartime — it sometimes temporarily contracted. Yet the basic principles that guided America were sustained despite civil war, world wars, depressions, and endless challenges. Then, one September morning, our Post-Constitutional era began amid falling towers and empty skies. What have we lost since? More than we imagine. A look at the Bill of Rights, amendment by amendment, tells the tale.
The First Amendment
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
The First Amendment was meant to make one thing indisputably clear: free speech was the basis for a government of the people. Without a free press, as well as the ability to openly gather, debate, protest, and criticize, how would the people be able to judge their government’s adherence to the other rights? How could people vote knowledgeably if they didn’t know what was being done in their name by their government? An informed citizenry, Thomas Jefferson stated, was “a vital requisite for our survival as a free people.”
That was how it was seen long ago. In Post-Constitutional America, however, the government strives to “control the message,” to actively thwart efforts to maintain a citizenry informed about what’s done in its name, a concept that these days seems as quaint as Jefferson’s powdered wig. There are far too many examples of the post-9/11 erosion of the First Amendment to list here. Let’s just look at a few important ones that tell the tale of what we have lost since 9/11.
(Lack of) Freedom of Information
In 1966, an idea for keeping Americans better informed on the workings of their government was hatched: the Freedom of Information Act (FOIA). Strengthened in 1974, it began with the premise that, except for some obvious categories (like serious national security matters and personal information), the position of the government should be: everything it does is available to the public. Like the Bill of Rights, which made specific the limits of government, FOIA began with a presumption that it was the government’s duty to make information available — and quickly — to the people, unless a convincing case could be made otherwise. The default position of the FOIA switch was set to ON.
Three decades later, the FOIA system works far differently. Agencies are generally loath to release documents of any sort and instead put their efforts into creating roadblocks to legitimate requests. Some still require signatures on paper. (The State Department notes, “Requests for personal information cannot be submitted electronically and should be submitted by mail.”) Others demand hyper-detailed information like the precise dates and titles of documents whose dates and titles may be classified and unavailable. The NSA simply denies almost all FOIA requests out of hand, absent a court order.
Most federal agencies now regard the deadline mandated for a response as the time period to send out a “request received” note. They tend to assign only a few staff members to processing requests, leading to near-endless delays. At the State Department, most FOIA work is done on a part-time basis by retirees. The CIA won’t directly release electronic versions of documents. Even when a request is fulfilled, “free” copying is often denied and reproduction costs exaggerated.
In some cases, the requested records have a way of disappearing or are simply removed. The ACLU’s experience when it filed an FOIA-style request with the Sarasota police department on its use of the cell phone surveillance tool Stingray could be considered typical. The morning the ACLU was to review the files, Federal Marshals arrived and physically took possession of them, claiming they had deputized the local cops and made the files federal property. An ACLU spokesperson noted that, in other cases, federal authorities have invoked the Homeland Security Act to prevent the release of records.
John Young, who runs the web site Cryptome and is a steadfast FOIA requester, stated, “Stonewalling, delay, brush-off, lying are normal. It is a delusion for ordinary requesters and a bitch of a challenge for professionals. Churning has become a way of life for FOIA, costly as hell for little results.”
Sealed Lips and the Whistleblower
All government agencies have regulations requiring employees to obtain permission before speaking to the representatives of the people — that is, journalists. The U.S. Intelligence Community has among the most restrictive of these policies, banning employees and contractors completely from talking with the media without prior authorization. Even speaking about unclassified information is a no-no that may cost you your job. A government ever more in lockdown mode has created what one journalist calls a “culture where censorship is the norm.”
So who does speak to Americans about their government? Growing hordes of spokespeople, communications staff, trained PR crews, and those anonymous “senior officials” who pop up so regularly in news articles in major papers.
With the government obsessively seeking to hide or spin what it does, in-the-sunlight contact barred, and those inside locked behind an iron curtain of secrecy, the whistleblower has become the paradigmatic figure of the era. Not surprisingly, anyone who blows a whistle has, in these years, come under fierce attack.
Pick a case: Tom Drake exposing early NSA efforts to turn its spy tools on Americans, Edward Snowden proving that the government has us under constant surveillance, Chelsea Manning documenting war crimes in Iraq and sleazy diplomacy everywhere, John Kiriakou acknowledging torture by his former employer the CIA, or Robert MacLean revealing Transportation Safety Administration malfeasance. In each instance, the threat of jail was quick to surface. The nuclear option against such truthtellers is the Espionage Act, a law that offended the Constitution when implemented in the midst of World War I. It has been resurrected by the Obama administration as a blunt “wartime” tool for silencing and punishing whistleblowers.
The Obama administration has already charged six people under that act for allegedly mishandling classified information. Even Richard Nixon only invoked it once, in a failed prosecution against Pentagon Papers whistleblower Daniel Ellsberg.
Indeed, the very word “espionage” couldn’t be stranger in the context of these cases. None of those charged spied. None sought to aid an enemy or make money selling secrets. No matter. In Post-Constitutional America, the powers-that-be stand ready to twist language in whatever Orwellian direction is necessary to bridge the gap between reality and the king’s needs. In the Espionage Act case of State Department contractor Stephen Kim, a judge departed from previous precedent, ruling that the prosecution need not even show that the information leaked to a Fox news reporter from a CIA report on North Korea could damage U.S. national security or benefit a foreign power. It could still be a part of an “espionage” charge.
A final question might be: How could a law designed almost 100 years ago to stop German spies in wartime have become a tool to silence the few Americans willing to risk everything to exercise their First Amendment rights? When did free speech become a crime?
Self-Censorship and the Press
Each person charged under the Espionage Act in these years was primarily a source for a journalist. The writers of the Bill of Rights chose to include the term “press” in the First Amendment, specifically carving out a special place for journalists in our democracy. The press was necessary to question government officials directly, comment on their actions, and inform the citizenry about what its government was doing. Sadly, as the Obama administration is moving ever more fiercely against those who might reveal its acts or documents, the bulk of the media have acquiesced. Glenn Greenwald said it plainly: too many journalists have gone into a self-censoring mode, practicing “obsequious journalism.”
For example, a survey of reporters showed “the percentage of U.S. journalists endorsing the occasional use of ‘confidential business or government documents without authorization,’ dropped significantly from 81.8% in 1992 to 57.7% in 2013.” About 40% of American journalists would not have published documents like those Edward Snowden revealed.
And the same has been true of the management of newspapers. In mid-2004, James Risen and Eric Lichtblau uncovered George W. Bush’s illegal warrantless eavesdropping program, but the New York Times held the story for 15 months, until after Bush’s reelection. Executives at the Times were told by administration officials that if they ran the story, they’d be helping terrorists. They accepted that. In 2006, the Los Angeles Times similarly gave in to the NSA and suppressed a story on government wiretaps of Americans.
Government Efforts to Stop Journalists
Reporters need sources. Increasingly, the government is classifying just about any document it produces — 92 million documents in 2011 alone. Its intelligence agencies have even classified reports about the over-classification of documents. As a result, journalistic sources are often pressed into discussing, at great personal risk, classified information. Forcing a reporter to reveal such sources discourages future whistleblowing.
In one of the first of a series of attempts to make journalists reveal their sources, former Fox News reporter Mike Levine stated that the Justice Department persuaded a federal grand jury to subpoena him in January 2011. The demand was that he reveal his sources for a 2009 story about Somali-Americans who were secretly indicted in Minneapolis for joining an al-Qaeda-linked group in Somalia. Levine fought the order and the Department of Justice finally dropped it without comment in April 2012. Call it a failed test case.
According to Washington lawyer Abbe Lowell, who defended Stephen Kim, significant amounts of time have been spent by the Department of Justice in the search for a legal rationale for indicting journalists for their participation in exposing classified documents. A crucial test case is James Risen’s 2006 book, State of War, which had an anonymously sourced chapter on a failed CIA operation to disrupt Iran’s nuclear program. When Risen, citing the First Amendment, refused to identify his source or testify in the trial of the former CIA officer accused of being that source, the government sought to imprison him. He responded that the “Obama administration… wants to use this case and others like it to intimidate reporters and whistleblowers. But I am appealing to the Supreme Court because it is too dangerous to allow the government to conduct national security policy completely in the dark.”
In June 2014, the Supreme Court refused to take Risen’s case on appeal, essentially ratifying a U.S. Court of Appeals decision that the First Amendment didn’t protect a reporter from being forced to testify about “criminal conduct that the reporter personally witnessed or participated in.” That decision makes clear that a reporter receiving classified information from a source is part of the crime of “leaking.”
Risen has said he will go to prison rather than testify. It is possible that, having secured the precedent-setting right to send Risen to jail, the government will bring the suspected leaker to trial without calling on him. Attorney General Eric Holder recently hinted that his Justice Department might take that path — a break for Risen himself, but not for reporters more generally who now know that they can be jailed for refusing to divulge a source without hope of recourse to the Supreme Court.
The Descent Into Post-Constitutionalism
As with the King of England once upon a time, many of the things the government now does have been approved in secret, sometimes in secret courts according to a secret body of law. Sometimes, they were even approved openly by Congress. In constitutional America, the actions of the executive and the laws passed by Congress were only legal when they did not conflict with the underlying constitutional principles of our democracy. Not any more. “Law” made in secret, including pretzeled legal interpretations by the Justice Department for the White House, opened the way, for instance, to the use of torture on prisoners and in the Obama years to the drone assassination of Americans. Because such “legalities” remain officially classified, they are, of course, doubly difficult to challenge.
But can’t we count on the usual pendulum swings in American life to change this? There were indeed notable moments in American history when parts of the Constitution were put aside, but none are truly comparable to our current situation. The Civil War lasted five years, with Lincoln’s suspension of habeas corpus limited in geography and robustly contested. The World War II Japanese internment camps closed after three years and the persecuted were a sub-set of Japanese-Americans from the West Coast. Senator McCarthy’s notorious career as a communist-hunter lasted four years and ended in shame.
Almost 13 years after the 9/11 attacks, it remains “wartime.” For the war on terror, the driver, excuse, and raison d’être for the tattering of the Bill of Rights, there is no end in sight. Recently retired NSA head Keith Alexander is typical of key figures in the national security state when he claims that despite, well, everything, the country is at greater risk today than ever before. These days, wartime is forever, which means that a government working ever more in secret has ever more latitude to decide which rights in which form applied in what manner are still inalienable.
The usual critical history of our descent into a post-constitutional state goes something like this: in the panic after the 9/11 attacks, under the leadership of Vice President Dick Cheney with the support of President George W. Bush, a cabal of top government officials pushed through legal-lite measures to (as they liked to say) “take the gloves off” and allow kidnapping, torture, illegal surveillance, and offshore imprisonment along with indefinite detention without charges or trial.
Barack Obama, elected on a series of (false) promises to roll back the worst of the Bush-era crimes, while rejecting torture and closing America’s overseas “black sites,” still pushed the process forward in his own way. He expanded executive power, emphasized drone assassinations (including against American citizens), gave amnesty to torturers, increased government secrecy, targeted whistleblowers, and heightened surveillance. In other words, two successive administrations lied, performed legal acrobatics, and bullied their way toward a kind of absolute power that hasn’t been seen since the days of King George. That’s the common narrative and, while not wrong, it is incomplete.
Missing Are the People
One key factor remains missing in such a version of post-9/11 events in America: the people. Even today, 45% of Americans, when polled on the subject, agree that torture is “sometimes necessary and acceptable to gain information that may protect the public.” Americans as a group seem unsure about whether the NSA’s global and domestic surveillance is justified, and many remain convinced that Edward Snowden and the journalists who published his material are criminals. The most common meme related to whistleblowers is still “patriot or traitor?” and toward the war on terror, “security or freedom?”
It’s not that Americans are incorrect to be fearful and feel in need of protection. The main thing we need to protect ourselves against, however, is not the modest domestic threat from terrorists, but a new king, a unitary executive that has taken the law for its own, aided and abetted by the courts, supported by a powerful national security state, and unopposed by a riven and weakened Congress. Without a strong Bill of Rights to protect us — indeed, secure us — from the dangers of our own government, we will have gone full-circle to a Post-Constitutional America that shares much in common with the pre-constitutional British colonies.
Yet there is no widespread, mainstream movement of opposition to what the government has been doing. It seems, in fact, that many Americans are willing to accept, perhaps even welcome out of fear, the death of the Bill of Rights, one amendment at a time.
We are the first to see, in however shadowy form, the outlines of what a Post-Constitutional America might look like. We could be the last who might be able to stop it.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Rich Bauer said...
1James Madison: “It is a universal truth that the loss of liberty at home is to be charged to the provisions against danger, real or pretended, from abroad.”
George W: A patriotic act is “Mission Accomplished”
07/16/14 1:24 PM | Comment Link
pitchfork said...
2quote:”George W: A patriotic act is “Mission Accomplished”unquote
And then there’s this..
“I’ll be long gone before some smart person ever figures out what happened inside this Oval Office.” –Prez Dumbass.., Washington, D.C., May 12, 2008″
quote”We are the first to see, in however shadowy form, the outlines of what a Post-Constitutional America might look like. We could be the last who might be able to stop it. “unquote
Indeed, the “outlines”…a 100 mile perimeter around the US where the Constitution has been literally burned to ashes….
https://www.aclu.org/know-your-rights-constitution-free-zone-map
…where 2 out of 3 citizens live in Post-Constituion ‘murka. Including ME. Michigan is COMPLETELY within the zone. Sick. Fucking sick.
07/16/14 3:09 PM | Comment Link
jim hruska said...
3WMW,
As you point out we are 13 years in a war on terror, yet we do not have 1 POW in that war.
Imagine that!
The first death in this and any war is truth, but especially now words have lost their meaning.
Words, like terrorism, only have meaning if one understands the symbolic nature of the effort.
I believe that the pwot has become our major source of entertainment.
jim hruska
07/16/14 3:11 PM | Comment Link
Rich Bauer said...
4I pledge allegiance to the Totalitarian State of America, for which it stands…for nothing.
07/16/14 4:20 PM | Comment Link
Rich Bauer said...
5“America has entered its third great era: the post-constitutional one.”
Actually, since 1963, it entered the “Dumbest Country On The Planet” era, one that US dumb asses would believe Koch Brothers’ shit like this:
‘Carbon Dioxide Suffers Just Like Jews In Nazi Germany, ‘Expert’ Says On CNBC”
07/16/14 6:00 PM | Comment Link
pitchfork said...
6quote”I pledge allegiance to the Totalitarian State of America, for which it stands…for nothing.”unquote
On the contrary, it stands for rendition/torture cover up/murder inc via Drone/assassination/sovereign nation overthrow/illegal war and war crimes/world wide and domestic surveillance/ militarized police state/ Corporate citizenship & legislative-election ownership…(takes breath)/etc etc etc…’Murka..land of the benighted, home of the Kardashian ass watchers..
07/16/14 6:12 PM | Comment Link
Many Hats said...
7Thanks for your excellent blog.
Regarding the last gasps of the Bill of Rights and just about everything else you write about, what bothers me is that we, the 99% of people, are not only paying for it all, but I feel that we are taxed without representation. Sure, we get to vote, but the elephant and the donkey are both insane and they don’t care about us. Both parties are off further enriching the 1% and playing at empire; quite incompetently at that.
Hilary Clinton and BHO are the best examples of “liberals” I can think of, yet there they are calling for bombing in Syria and the Ukraine, drone assassinations…..the shebang. BHO gets a pass on Iraq. Hillary was right there with the shock and awe crowd. Both are with the banksters.
The election process is rigged so that only those who promise to do the bidding of the 1% can seriously participate.
De Facto taxation without representation. Some call for more taxes as if at some point the marginal dollar will promote responsibility and sanity in DC. Others call for reduced taxes, yet still seek empire.
No one I’ve talked to on he street recently thinks it smart to assist the Islamic rebels in Syria, to create trade imbalances to assist the Chinese. Yet DC still pursues these courses of action.
Taxation without representation.
What if we all refused to pay for the bullshit?
07/17/14 1:59 AM | Comment Link
Rich Bauer said...
8Great article…again. I see Greenwald and company are still looking for writers:
https://firstlook.org/contact/
07/17/14 10:36 AM | Comment Link
wemeantwell said...
9Applied formally twice, again through a good contact. Never heard anything back.
07/17/14 11:32 AM | Comment Link
Rich Bauer said...
10Matt Taibbi says he is is looking for “sarcastic” writers with a “finely tuned sense of outrage.” Market yourself like Matt. Wear a baseball cap to your interviews with a whistleblower mantra like: “Blow it out your ass, America.”
07/17/14 1:01 PM | Comment Link
pitchfork said...
11quote”What if we all refused to pay for the bullshit?”unquote
Well sooprise sooprise sooprise! Many Hats, that is EXACTLY the solution. The 16th Amendment..aka a gun to your head INCOME TAX. The law that never was. Indeed. I won’t go there right now, but this is at the heart of every thing the USG is doing. As they can borrow 100 years into the future as they know you, your children, and their great grandchildren will be enslaved to pay it by virtue of prison, or death should you try to defy it. And many have.
Here’s the deal though. I DARE you to find out WHERE YOUR INCOME TAX GOES when it is collected by virtue of withholding. That is the magic question. After 10 years of research, I can tell you this. I doesn’t go where the taxpayers THINKS it goes. However, here’s a clue. Puerto Rico Trust 62. That has been documented. Beyond that, is the mystery. Good luck. Rest assured, you won’t be alone. I guarantee it.
oh, btw, you might want to start with the Federal Reserve Act though. Especially this…
http://www.afn.org/~govern/mcfadden_speech_1932.html
However, I must warn you. Once you go down the rabbit hole..you’ll NEVER be the same.
07/17/14 3:30 PM | Comment Link
pitchfork said...
12Speaking of speech…looks like Big Brother O want’s to speak to every person in Murka at the same time..
http://www.dailymail.co.uk/news/article-2693145/Big-Brother-talking-New-emergency-alert-Obama-power-flip-switch-airwaves.html
If this isn’t right out of Orwell’s 1984 I don’t know what is.
07/17/14 3:34 PM | Comment Link