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The Constitution Impaired; the Bill of Rights Annulled

The separation of powers established by the Constitution is eroding.

Rights guaranteed by constitutional amendments are becoming irrelevant. Reporting a crime may be a crime, and informing the public of the truth is treason. Scaffolding over The Constitution Of The United States Of America, Pennsylvania Avenue, NW. Washington, DC. (Photo: Takoma Bibelot / Flickr)

Part of the Series

Truthout is serializing Beatrice Edwards’ book, The Rise of the American Corporate Security State. To read more excerpts from this book, click here.

Daniel Ellsberg writes of The American Corporate Security State: “Edwards is an extraordinary writer who brilliantly captures the essence of what whistleblowers such as [Edward] Snowden have sacrificed their careers and jeopardized their personal liberties to convey.” Get the book by contributing to Truthout here.

Reason to be afraid #3:

The separation of powers established by the Constitution is eroding.

Rights guaranteed by constitutional amendments are becoming irrelevant. Reporting a crime may be a crime, and informing the public of the truth is treason.

Here in post-Snowden America, the language and the principles of the Fourth Amendment of the Constitution sound almost quaint:

The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.41

The amendment, however, has an abiding intention and a context that are not-so-quaint. In the American colonies, it was an unpopular yet common practice of the British government to issue general search warrants for tax collection purposes. Law enforcement authorities and customs officials searched whole towns, house by house, in an effort to identify every taxable possession or activity. This practice was—and is—easily recognizable as the conduct of a tyrannical government, which gives law enforcement the sweeping authority to search anyone at any time for any reason. Or for no reason at all.

The new democratic government of the United States therefore explicitly prohibited this practice. And now, in June 2013, we find that the NSA is relying on general warrants from a secret court that take in the American population for purposes of bulk data collection. The lawyers can argue for as long as they care to about the legal meaning of the words search and seizure, but the intention of the Fourth Amendment is clear to anyone who speaks English. The government—law enforcement, IRS agents, intelligence agencies—cannot seize information about you or things that are yours without expressing first a suspicion of a crime and producing at least some evidence that you’re the responsible party. The evidence must be presented to authorities in the judicial branch of government, who decide whether it is convincing enough to justify the issuing of a warrant. A warrant, under US law, must be based on the individualized suspicion of a crime. Dragnet data collection, like that conducted by the NSA, is equivalent to a house-to-house, door-to-door search, and as such, it is prohibited.

Despite this standard of American government, we have been told repeatedly since 9/11 that we must sacrifice privacy for security because we are engaged in the Global War on Terror. This is now a never-ending war. There is no final goal. There is no tangible victory, and after more than a decade of war, we remain right at the center of it—nowhere near either the beginning or the end.

America has been at war since 2001 in Afghanistan, where large numbers of US troops remain. The Afghanistan war is the longest in US history. At the same time, we fought an eight-year war of choice in Iraq, from 2003 through 2011. Polls show that the majority of Americans do not see either US intervention as victorious. This is because they weren’t. Behind us, after years of incalculable loss, we leave corrupt governments of cronies nominally in charge of states that will not cohere.

We are war-weary, and we don’t want another losing battle. Despite our politicians fear-mongering and saber-rattling when the Syrian government apparently used chemical weapons in the fall of 2013, 75 percent of Americans surveyed rejected the idea of a military strike on Damascus.42

The prospect of yet another Middle Eastern war does not appeal to Americans. On the contrary, we Americans tell anyone who asks that we think the economy is the most important issue, and we want to go back to work.43 The general feeling seems to be that should peace come, for the first time since September 11, 2001, the attention of the US government could turn inward to infrastructure, education, health care that actually is affordable, work and environmental conservation. This is what Americans are hoping for.44 They say so every chance they get.

In reality, though, it doesn’t matter what Americans want. The wars are not ending. Only the ground war is winding down. The War on Terror is with us still, and it may well last forever. After all, we cannot ever defeat terror, and we cannot negotiate with it. Terror is a tactic, not a government or a group. No one speaks for terror. Expressing the conflict this way allows our government to slip a new enemy into the picture whenever it needs one. So, when talking about our new threat—cyber-terror—our enemy can be Russia, China, hacktivists, Al-Qaeda, or “those who would do us harm,” whoever they are.

Even if we’re tired of war, the War on Terror is ramping up. National security officers talk now of target lists and a new strategy for pursuing terrorists, known by the bureaucratic and denatured phrase “disposition matrix.” The matrix is a database that includes the names of suspected terrorists, cross-tabulated by the tactics to be used against them. These may be indictments or secret operations, such as capture or killing. Those who have seen the matrix and helped compose it say it supersedes the president’s kill list, setting out plans for the termination of suspects.

That timeline suggests that the United States has reached only the midpoint of what was once known as the global war on terrorism. Targeting lists that were regarded as finite emergency measures after the attacks of Sept. 11, 2001, are now fixtures of the national security apparatus.45

More to the point, clandestine electronic warfare is here to stay. This is the truly chilling prospect because this will become the war within. This war can be silent and invisible. We won’t know where or when it is waged. We don’t know who the victims or who the aggressors really are. We don’t know the cost. We won’t know the objectives because these are secret. More and more of our national wealth will be used to fight this war. This will be the war without end, the forever war.

There are good reasons to resist it because the past decade has shown us that even here, on the aggressive end, a war footing weakens our already tenuous civil rights. The president himself says, “I think it’s important to recognize that you can’t have 100 percent security and also then have 100 percent privacy and zero inconvenience.”46 He speaks as if we are about to be hassled by a flight delay or a traffic jam, but the difficulty is much more serious than that. Obama was speaking shortly after June 5, 2013, when Edward Snowden revealed the extent to which Americans are subjected to massive surveillance. The inconvenience to which the president referred is the massive, ongoing violation of the Fourth Amendment.

In practice, the withdrawal of rights in the United States—and perhaps anywhere—is not difficult to accomplish when people are frightened and they’re not told what they’re losing. It’s especially simple to annul the civil rights of people who aren’t using them and don’t realize that they’re gone until they need them. “There is no subjugation so perfect as that which keeps the appearance of freedom, for in that way one captures volition itself.”47

In the United States, white middle-class people are not ordinarily mindful of their civil rights because, in the twenty-first century, we’ve long had them and are not often obliged to invoke them. We are not stopped and frisked. We are not detained for being in the wrong neighborhood after dark or in the proximity of a crime. We’re not arbitrarily asked for our identity documents. We learned in school that our country was the greatest, free-est, richest, fairest nation in history, that our judiciary is independent, and that we have three branches of government checking and balancing one another—a structure that is extraordinarily stable and clever.

Most of us, though, learned these ideas before we were able to think critically. We learned them before we knew about the dramatic percentage of African American men imprisoned, before we saw unusual levels of economic inequality, shoddy health care for people who can’t pay, and crazed homeless people sleeping in downtown doorways.

Most of us never had to put our liberty-and-justice-for-all convictions to the test. If, however, in these post-9/11 decades you should say or do something that drops you into the hands of the federal justice system, you will find that your rights to freedom of speech and freedom of association—as set out in the Bill of Rights—are no longer operative. Without these rights, you will be ruined before it’s over, whether you are guilty of a crime or not.

I can explain.

In the winter of 2011, John Kiriakou, a former CIA agent, approached us at GAP for representation. He told us he would soon be indicted by the Justice Department for confirming to an investigator, who relayed to an attorney for a Guantanamo detainee, the name of a CIA interrogator who quite possibly extracted a confession from the detainee under torture. The defense attorney entered the CIA interrogator’s name into his client’s case file, and the Guantanamo tribunal put the document under seal. In other words, although Kiriakou did confirm the name, it was never publicly revealed. He believed, and we soon agreed with him, that although this information would imminently occasion his indictment, his legal problems actually stemmed from an interview he gave to Brian Ross of ABC News five years before. In that interview, Kiriakou became the first US official to reveal that US forces tortured their prisoners as a matter of policy. There was a torture program, a manual, a staff, training, and a budget. Kiriakou’s real crime, then, was reporting a crime—torture—just as Edward Snowden’s crime was reporting a crime—illegal surveillance. The Justice Department charged Kiriakou under the Espionage Act and the Intelligence Identities Protection Act for revealing classified information. The multiple charges could have resulted in his imprisonment for more than thirty years.

No one associated with the torture program—not those who designed it or approved it, not those who carried it out, not those who destroyed the video evidence of it despite an order not to—went to jail. Only John Kiriakou, who told the public about it, did. In the United States, reporting a crime has become a crime, and official secrecy can be used to conceal torture.

It is the Espionage Act of 1917 that the Obama administration reaches for when a national security whistleblower must be silenced. The Obama Justice Department prosecuted Bradley Manning, Tom Drake, John Kiriakou, and Edward Snowden, using this archaic statute, branding them all enemies of the state. Adopted during World War I to address the political hysteria directed at German Americans, an early version of the Espionage Act included a punitive program of press censorship, which, fortunately, died in the Senate during debate, even then. At the time, Senator Charles Thomas (D-CO) made prescient remarks about the measure:

It strikes directly at the freedom of the press, at the constitutional exemption from unreasonable search and seizure. . . . I very much fear that we may place upon the statute books something that may rise to plague us.48

Truth is now treason in the United States.

At this point in our history, if a crime is an official secret, anyone who speaks about it is a criminal.

Our lack of rights is not apparent, though, because our form of government is unchanged. Civilians control the military, the president runs the executive branch, Congress approves the nation’s budget and taxes the people, and the judicial system operates without visible influence from outside forces. The Constitution of the United States is intact, only impaired, but the Bill of Rights has been shredded.

In dissecting the loss of freedom, it is important to distinguish between the Constitution and the Bill of Rights—its first ten amendments. The Constitution per se, consists of seven articles that specify the rights of property, the responsibilities of the state, and the conduct of elections. Looking at the original, it is clear that the thinking behind it was ingenious for its time and established a government structure that would be difficult for any one faction to control completely, given at least some diversity of interests.

The actual Constitution—the original without its amendments—is ingenious because it ensures stability, but it’s not all that democratic. Slavery was an accepted practice. Women could not vote. The Senate was elected by the state legislatures, and the president was elected by a college of electors. Only the House of Representatives was directly elected by male citizens. In most states, only white male property owners could vote. For well over two hundred years, in practice, only white male property owners held the office of president of the United States.

The rights of citizens came, first, through the Bill of Rights, which the Framers added as a concession to secure the support of yeoman farmers in the thirteen colonies who were not enthusiastic about granting a central/federal government the power to tax them. The Bill of Rights is what most of us think of when we express our reverence for the US Constitution: freedom of speech, the right to personal security, freedom of association and freedom from self-incrimination, guarantees of due process and habeas corpus.

Over the course of our history, we have democratized the state through constitutional amendments. Article XIII ended slavery, and Article XIV, passed in 1868, extended most of the provisions of the Bill of Rights to the states. Article XIX bestows upon women the right to vote.

Rights of people, then, as opposed to rights of property and privileges of the state, were added to the US Constitution, and therefore can be drained away without altering at all the form in which we’re governed. We do not live in Lenin’s Soviet Union, which had to depose the czar, or even in Pinochet’s Chile, which assassinated the civilian president and installed a military head of state. The constitutional forms are still in place. Only our rights as individual citizens are weakened.

Joseph Nacchio was the CEO of Qwest Communications in February 2001, when the NSA approached him about cooperation with the agency’s surveillance activities, seven months before the attacks of 9/11. Nacchio entertained the NSA’s request for Qwest’s customers’ call records and asked the Qwest general counsel for advice. After reviewing the NSA request, the general counsel advised Nacchio that the NSA’s proposal was illegal, and Qwest could not comply without a FISA warrant. Years later, of course, we found that the NSA had made similar requests of all the major telecoms—Verizon, AT&T, Sprint Nextel, and so forth—and Qwest was the only corporation to object. Nacchio claims that the NSA then retaliated by excluding Qwest from lucrative contract work.

Subsequently, the Department of Justice charged Joseph Nacchio with forty-two counts of insider trading. When he tried to defend himself against the charges by introducing the background conflict between himself as Qwest CEO and the NSA, the court ruled the information inadmissible.49

When ultimately released, court documents showed that during the crucial period, February 2001, Nacchio served as the chairman of the National Security Telecommunications Advisory Committee. The NSA approached him about a program called Groundbreaker, which would outsource much of the agency’s nonclassified work. During a meeting, NSA officials also proposed another kind of cooperation, but redactions in the court documents obscure the exact nature of that proposal.50

Nacchio’s defense attorney claimed that the NSA pressured him for months after the February 2001 meeting to grant the agency broad access to phone call information and Internet traffic on the Qwest network, but Qwest’s attorneys warned him that if he complied with the NSA’s request, the corporation could be guilty of a felony. So he responded to the agency that he could only submit customer data to the government if presented with a FISA warrant.

Subsequently, Qwest acquired telecom US West, and in 2005, the Justice Department charged Nacchio with accounting fraud for misrepresenting his corporation’s bottom line in negotiations. In his defense, Nacchio wanted to claim that at the time of the purchase, he believed Qwest would soon prosper as the result of its participation in a series of lucrative government communications contracts. After he refused to cooperate with the NSA, however, the expected contracts did not materialize, and Qwest’s financial position deteriorated.

During Nacchio’s trial, none of this information was introduced because it was classified. Ultimately, he was convicted on nineteen of forty-two counts and served four and a half years of a six-year sentence.

Two things. First, whether Nacchio is guilty of a crime or not, his defense—once documents were unsealed—asserts that the pressure to provide the raw material for large-scale domestic spying involving telecoms began just after George W. Bush became president, well before September 11, 2001. If Nacchio were the only one who claimed this, it might be a fragile argument, but telecom customers of several corporations filed lawsuits accusing the providers of violating their subscribers’ privacy beginning around February 2001. The suit filed against AT&T asserts that seven months before September 11, 2001, the company:

[B]egan development of a center for monitoring long distance calls and Internet transmissions and other digital information for the exclusive use of the NSA.51

There is powerful evidence to substantiate the claim that September 11, 2001, was not, in fact, the incident that precipitated the broad sweep surveillance of Americans. Nacchio and the lawsuits against AT&T and other telecoms assert that the request for access to private data began virtually as soon as George W. Bush took office, months before 9/11.

Secondly, Nacchio’s case shows what Kiriakou’s does: the US intelligence apparatus retaliates through the Justice Department for noncompliance with its demands. As others have pointed out, if Nacchio’s defense were untrue, why didn’t the prosecutor allow it to be admitted and then expose it as bogus? Why did the defense have to be excluded?52

Five years later, we are no closer to knowing the truth. Part of the problem is that Congress is not pressing hard for answers. In the fall after the initial Snowden disclosures, at hearings called by the Senate Judiciary Committee, only a few senators, including Ron Wyden and Mark Udall, regularly asked specific confrontational questions of NSA Director Keith Alexander designed to elicit meaningful answers. Congressional oversight simply isn’t there.

Although electronic surveillance of Americans receives much of the public’s attention, other rights are quietly weakening, too. Most significant perhaps is the pending loss of the right to due process and habeas corpus. Under the National Defense Authorization Act (NDAA) for 2012, the president apparently acquired the power to order the military to detain

[a] person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.53

Anyone detained under the statute, may be held indefinitely without trial under the law of war “until the end of the hostilities authorized by the [Authorized Use of Military Force].”54 Moreover, people detained would have no right to be notified of the specific charges against them and would thus be unable to defend themselves.

There is considerable controversy surrounding the interpretation and application of the law, and civil liberties organizations protest it strenuously. Chris Hedges, a journalist, and six political dissidents filed suit in federal court asserting a fear of prosecution under new military powers. Most realistically and immediately, they fear the law could be used to detain American citizens on American soil, accuse them of association with Al-Qaeda, and deport them for detention at Guantanamo Bay until the end of hostilities, whenever that is. The concern and confusion surround the phrases “substantially support” and “associated forces,” and a number of journalists believe that the law could be used against them if they interview members of Al-Qaeda or publish information about them. If this could occur, or even be attempted, the NDAA (section 1021) violates the First Amendment (the right to free speech) and the Fifth Amendment (freedom from self-incrimination), at the very least.

In the most recent ruling on the lawsuit, the Second Circuit Court of Appeals upheld the implementation of NDAA:

Since the U.S. government has promised that citizens, journalists, and activists were not in danger of being detained as a result of NDAA, it was unnecessary to block the enforcement of 102 (b)(2) of the NDAA.55

The judges apparently believe that if government lawyers assert something, then it’s true. The ruling, issued on July 17, 2013, came one month after the first disclosure made by Edward Snowden that exposed the NSA’s repeated assurances to Congress that the agency would not spy on Americans in an unwarranted wholesale fashion as a lie.

So here we are. The NDAA poses a real threat to journalists, whistleblowers, and whistleblower advocates, who may be detained without trial indefinitely for writing about someone who challenges government actions. The law is far from clear, and while the courts decide which interpretation of its nebulous phrases might be constitutional, its chilling effect is already obvious.

This is America in 2013, a country so far from its founding ideals that it’s difficult to recognize. Those running the electronic espionage system designed to track foreign terror suspects ultimately turned their surveillance equipment on us.

Congress does not object. Even when lied to in open session while the television cameras roll, as Senator Wyden was, the Senate does not investigate. There is no special prosecutor and no effort to determine what lies beneath the lies. Why is that?

Because, in acquiring all electronic information there is to have about each of us, the NSA also acquires unlimited information about senators and congressmen. Who among them wants to find him- or herself in a pissing match with Keith Alexander or James Clapper? How can any one of them be sure there is no record of a dubious campaign contribution, a fund-raising call from a Senate office instead of campaign headquarters, a childhood friend who turned out badly, a quick trip to rehab, a struggle with online poker playing or pornography? As Willie Stark told Jake in All the King’s Men: “There’s always something.” Any sensible politician would be afraid that the NSA knows what that something is.

This is the problem when the government—or part of it—knows more about us than we know about the government. In this context, information really is power. When a single secretive executive agency has it all, the responsiveness of democratic processes is compromised. Neither elected nor appointed officials can confront such an agency and survive the retaliation. Legislators in particular seem slavish when confronted with the potential crimes of the NSA. Moreover, the government seems to conduct itself in ways that do not accurately reflect the will of the electorate.

When we lose our right to freedom from unreasonable search and seizure, we lose the presumption of innocence. There’s a reason we need that departure point in a conflict with the state and a reason we have those rights. They establish the sovereignty of the people as opposed to that of a dictator. They protect us from the tyranny of the state.

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