To begin with, it is a fool’s errand to believe that we can ascertain the intentions of the Founders on a huge raft of contemporary issues which – like radar itself, would have been completely off their screens in the pre-industrial, let alone pre-post-industrial, agrarian society in which they lived. Even the Founders themselves – the very people who wrote the document in question – began debating about what the Constitution permits immediately after ratification, notably the 1790 row between Hamilton and Madison over whether a federal bank was permitted. That particular debate – between two key authors of the Constitution a mere one year after it was ratified – suggests a second problem with the notion of constitutionalism as the foundational mechanism for policy-making. Namely, that the document is written in vague enough language in many places so as to permit multiple interpretations on given questions, each sometimes equally valid. Not for nothing, for example, is one of the key provisions of the document referred to as the “elastic clause”. The Constitution Is Just Parchment, Get Over It ☀
constitution
“I love my country but fear my government.” It’s a timely slogan that you can find emblazoned on assorted paraphernalia from bumper stickers and baseball caps to baby blankets. Professional Democrats tend to regard this fear and loathing of government as a right-wing pathology, but it’s liable to intensify on the left as the Obama security state intensifies its attacks on Occupiers, anti-war and anti-globalization protesters, and animal-rights activists, among other left-wing dissenters.
The surveillance, harassment, entrapment, and prosecution of activists is becoming an alarming fact of life. The bipartisan war on terror has devolved into a bipartisan war on domestic dissent, especially dissent emanating from the left: Occupiers have endured police harassment and repression that Tea Party activists only imagined. (For regular, virtually daily updates on the nascent police state subscribe to Bill of Rights Defense Committee or Reader Supported News reports, or read Rick Perlstein’s Rolling Stone posts.)
Fear-mongering and the demonization of activists as anarchists or domestic terrorists seems to have secured majority support for police-state tactics, or at least indifference to them. Still, it’s remarkable that in this election year, an endangered administration is waging war on a segment of its own base.
Democrats should worry. They have consistently dismissed the Obama Administration’s civil-libertarian critics, either taking their votes for granted or considering them excessively expensive electorally and ultimately expendable. But in a close election, it’s not clear that party loyalists, Obama groupies, gay-marriage advocates, and swing voters wary of Romney and a Republican Congress will compensate for the outrage and despair of activists and civil libertarians on the left.
Ignore, for discussion’s sake, the clauses that helped to entrench chattel slavery until it was eliminated by a brutal Civil War. Begin with the Senate and its assignment of equal voting power to California and Wyoming; Vermont and Texas; New York and North Dakota. Consider that, although a majority of Americans since World War II have registered opposition to the Electoral College, we will participate this year in yet another election that “battleground states” will dominate while the three largest states will be largely ignored.
Our vaunted system of “separation of powers” and “checks and balances” — a legacy of the founders’ mistrust of “factions” — means that we rarely have anything that can truly be described as a “government.” Save for those rare instances when one party has hefty control over four branches — the House of Representatives, the Senate, the White House and the Supreme Court — gridlock threatens. Elections are increasingly meaningless, at least in terms of producing results commensurate with the challenges facing the country.
But if one must choose the worst single part of the Constitution, it is surely Article V, which has made our Constitution among the most difficult to amend of any in the world. The last truly significant constitutional change was the 22nd Amendment, added in 1951, to limit presidents to two terms. The near impossibility of amending the national Constitution not only prevents needed reforms; it also makes discussion seem futile and generates a complacent denial that there is anything to be concerned about.
It was not always so. In the election of 1912, two presidents — past and future — seriously questioned the adequacy of the Constitution. Theodore Roosevelt would have allowed Congress to override Supreme Court decisions invalidating federal laws, while Woodrow Wilson basically supported a parliamentary system and, as president, tried to act more as a prime minister than as an agent of Congress. The next few years saw the enactment of amendments establishing the legitimacy of the federal income tax, direct election of senators, Prohibition and women’s right to vote.
Cell phones are tracking devices that make phone calls. It’s sad, but it’s true. Which means software solutions don’t always matter. You can have a secure set of tools on your phone, but it doesn’t change the fact that your phone tracks everywhere you go. And the police can potentially push updates onto your phone that backdoor it and allow it to be turned into a microphone remotely, and do other stuff like that. The police can identify everybody at a protest by bringing in a device called an IMSI catcher. It’s a fake cell phone tower that can be built for 1500 bucks. And once nearby, everybody’s cell phones will automatically jump onto the tower, and if the phone’s unique identifier is exposed, all the police have to do is go to the phone company and ask for their information. Jacob Appelbaum ☀
Contemporary American politics is conducted in the shadow of historical myths that inform our present-day choices. Unfortunately, these myths sometimes lead us terribly astray. Case in point is the popular idea that America’s economic tradition has been economic liberty, laissez faire, and wide-open cowboy capitalism. This notion sounds obvious, and it fits the image of this country held by both the Right, which celebrates this tradition, and the Left, which bemoans it. And it seems to imply, among other things, that free trade is the American Way. Don’t Tread On Me or my right to import.
It is, in fact, very easy to construct an impressive-sounding defense of free trade as a form of economic liberty on the basis of this myth. Unfortunately, this myth is just that: a myth, not real history. The reality is that all four of the four presidents on Mount Rushmore were protectionists. (Even the pseudo-libertarian Jefferson came around after the War of 1812.) Historically, protectionism has been, in fact, the real American Way.
This pattern even predates American independence. During the colonial period, the British government tried to force its American colonies to become suppliers of raw materials to the nascent British industrial machine while denying them any manufacturing industry of their own. The colonies were, in fact, the single biggest victim of British trade policy, being under Britain’s direct political control, unlike its other trading partners. The British knew exactly what they were doing: they were happy to see America thrive, but only as a cog in their own industrial machine. As former Prime Minster William Pitt, otherwise a famous conciliator of American grievances and the namesake of Pittsburgh, once said in Parliament,
If the Americans should manufacture a lock of wool or a horse shoe, I would fill their ports with ships and their towns with troops.
Thus the American Revolution was to some extent a war over industrial policy, in which the commercial elite of the Colonies revolted against being forced into an inferior role in the emerging Atlantic economy. This is one of the things that gave the American Revolution its exceptionally bourgeois character as revolutions go, with bewigged Founding Fathers rather than the usual unshaven revolutionary mobs.
It is no accident that after Independence, a tariff was the very second bill signed by President Washington. It is also no accident that the Constitution — which notoriously does not authorize a great many things our government does today — explicitly does give Congress the authority “to regulate commerce with foreign nations.” (Article I, Section 8.) This fact drives flag-draped libertarians crazy, but there it is.
Sen. Bernie Sanders has proposed a constitutional amendment that would overturn the Supreme Court decision in a case called Citizens United vs. FEC.
The Saving American Democracy Amendment states that:
- Corporations are not persons with constitutional rights equal to real people.
- Corporations are subject to regulation by the people.
- Corporations may not make campaign contributions or any election expenditures.
- Congress and states have the power to regulate campaign finances.
It’s not the free and open democratic society that aspires to eliminate risk; it’s the police state. The police state does not succeed. I spent four years in the Soviet Union and, occasionally, there were incidents of political violence: we didn’t hear about most of them. But they occurred here and there, and if there had been a real movement in that country that wanted to use political violence, I don’t think it would have been possible for the KGB secret police to prevent all incidents at 100 percent. You just can’t do it. In a modern society, particularly where people are mobile, where people have vehicles that they can load up with explosives, or people go to public areas and are willing to wear explosive vests and blow themselves up, it’s impossible to reduce risk to zero. So, the question is: “How much risk are you willing to tolerate to have a free society?” That’s not a calculation that’s really mathematical. It’s psychological. It’s really hard to come to a clear conclusion about it, because as individuals, or even as a society, you have less power over this than you may imagine you do. David Shipler ☀
Losing Our Civic Religion: A Conversation With David Shipler ☀
- Matthew Harwood: What was the most disturbing or enraging story you wrote about in the book?
- David Shipler: There are two. One is the basic situation of personal frisks and car searches in these poor black neighborhoods. That was disturbing on two sides. One, that it was permissible and, two, that the residents acquiesced. Our Constitution exists not only because there is case law, but also because of individual citizens observing it and believing in it and fighting for it. So, when you have a whole group of citizens in neighborhoods that no longer fight for their constitutional rights, the rights go away. They exist only when they're exercised.
- The second one was Brandon Mayfield for two basic reasons. One was the use of surreptitious searches that ultimately couldn't be challenged, the sneak-and-peek break-ins to his house; the collection of DNA evidence, cigarette buts; copying the hard drives on three computers and one external drive; planting bugs in his house and his law office, violating attorney-client privilege.
- And the second part of that was the intellectual dishonesty of the FBI. Because what they did, and I think this has implications for a lot of other investigations, is they took particular facts that they had discovered in his house through the FISA [Foreign Intelligence Surveillance Act] warrant and arranged them in an incriminating fashion to make it appear as if he were involved in the Madrid train bombing. They took a faulty fingerprint match and used it as a pivot around which they spun a whole theory of the crime. We know this, by the way, only because he sued and pried documents out of the FBI. Most of these investigations we don't know about. We don't know the details. But in this case, we know because he got these documents.
- To me there were so many intellectual failures in the FBI investigation, beginning with the lab, that it really does create a certain terrifying concern for citizens. These people are pros, so they should be professionally trained to keep open minds the whole way through and not discount exculpatory evidence and not arrange evidence in a way that supports their theory of the case. There were a couple of mistakes that no good scientist would ever make doing a clinical trial. One was that there was context bias. The examiners knew what the case was about. So when they got the print from Interpol, they ran it through their computerized system and it spit out ten to twenty possible matches; they came in on a weekend and they knew that this was the case, the Madrid bombing. They had to solve it. That was the first problem. They shouldn't have been told what the case was because that heightens the sense of urgency to find the match even where it might not exist.
- Secondly, all the examiners knew what all the others had concluded. So, their first examiner, who was very experienced, concluded that this was a match [of Mayfield]. And the next examiner, who was supposed to exercise independent judgment, already knew what the first one had concluded. This was hardly a double-blind study.
There are not two sides to the separation of Church and State. There is only this: They must be separated for the health of our democracy. Americans are of many faiths and none. Our laws must apply equally to all. If your God doesn’t agree, does that mean He accepts instructions from you? Are you content with such a God? Roger Ebert ☀
Conservatives who defended every excess of the Bush administration now rail against Obama’s Imperial Presidency, and liberals who considered the Bush era one long descent into the dark night of fascism seem blithely indifferent to the present Oval Office occupant’s multiplying executive power grabs. Apparently, phrases like “he killed his own people” only grate when pronounced in a clipped, West Texas accent — otherwise, “wars of choice” against third-rate dictators go down smoothly. Either you think the assortment of powers outlined here is a problem or you don’t, and both are coherent positions. What’s incoherent and absurd is only worrying about it every four to eight years. Gene Healy ☀
Poor people are entitled to privacy, even if they can’t afford all the gadgets of the wealthy for ensuring it.…When you glide your BMW into your underground garage or behind an electric gate, you don’t need to worry that somebody might attach a tracking device to it while you sleep. But the Constitution doesn’t prefer the rich over the poor; the man who parks his car next to his trailer is entitled to the same privacy and peace of mind as the man whose urban fortress is guarded by the Bel Air Patrol.…We are taking a giant leap into the unknown, and the consequences for ourselves and our children may be dire and irreversible. Some day, soon, we may wake up and find we’re living in Oceania. Chief Judge Kozinski of the Ninth Circuit ☀
The U.S. Constitution says Congress must decide where and when to make war. Congress has not declared a war since 1941. Since that date Congress has put up a gradually diminishing pretense of involvement. In the case of Libya, Congress played no role whatsoever in launching the war. Is the law what the Constitution says, how the Constitution was interpreted for the first two-thirds of our national history, what presidents have gotten away with in recent decades, or what a president can get away with today? Wait, don’t answer that!
The Constitution also says that ratified treaties are the supreme law of the land. Does that include treaties passed almost a century ago, largely forgotten, and almost never discussed on television? Does it include only treaties that have been duplicated in U.S. statutes? Does it include only treaties the government is inclined to comply with? In this regard, we might wish to recall that theoretically the Kellogg Briand Pact is still one of our many supreme laws of the land. In 1928, the U.S. Senate ratified this treaty, which states:
“The High Contracting Parties solemly declare in the names of their respective peoples that they condemn recourse to war for the solution of international controversies, and renounce it, as an instrument of national policy in their relations with one another.”
The Senate tacked on a couple of modifications to the treaty, a practice of debatable legality itself. One reservation the Senate added was for cases of defense. The other was to clarify that the United States was not obliged to enforce the treaty by going to war against its violators. Since nobody has even claimed that Libya attacked the United States, and since the United States voluntarily went to war, the exceptions do not seem relevant. War is illegal. Period. At least if we go by Kellogg Briand. And why not? Aren’t ancient laws recalled and put to use when we need to expand corporate power or discriminate against gays or advance any other political agenda? So, why not Kellogg Briand? Because it’s been violated? What kind of reason is that?
The United Nations Charter, too, makes war illegal, with very limited exceptions that do not seem to apply. But the United Nations passed a resolution that the U.S. Justice Department, in a leaked/published memo, relies on heavily to justify the war. Does that resolution make the war in some way legal, even if the memo isn’t and the Constitution is still violated? And what if the war, in various ways, violates the resolution? The resolution was for a humanitarian intervention, a no fly zone, a cease fire, an arms embargo, and a ban on foreign ground troops. It was immediately used to bomb civilians, introduce arms, and employ foreign ground troops, not to mention drone bombings and an apparent assassination attempt — both practices of highly dubious legality. Is a war legalized by a resolution even if it violates the resolution, and even if it violates numerous other laws in doing so? Or is it internationally legalized while remaining domestically unconstitutional?
A U.S. law passed in 1973, the War Powers Act, if you read what it actually says, would have applied only if Libya had attacked the United States, which no one has ever claimed. But everyone pretended this law applied anyway. The War Powers Resolution requires that the President report information to Congress within 48 hours of launching a war, which Obama did — except that he didn’t include most of the information he was required to report. The War Powers Resolution also puts a 60-day limit on unconstitutional war, and that clock has expired. So is the war illegal because it violates both the Constitution and this weaker law? Or is it legal because there’s been such a pretense of complying with the law, to the extent of sending Congress a polite note when the 60-day clock ran out? And is this law somewhat less legal than other laws because it was passed over a veto and because some, but not all, presidents since its passage have declared that they object to it and hold it to be unconstitutionally strong — as opposed to being unconstitutionally weak, as the law appears to be?
The Patriot Act reaches far beyond terrorism prevention. In my home state of Maryland, State Police invoked the Patriot Act to run surveillance on the Chesapeake Climate Action Network dedicated to wind power, recycling and protection of the Chesapeake Bay. They infiltrated the DC Anti War Network, suggesting the group might be a front for “white supremacists,” and Amnesty International, claiming to investigate “civil rights abuses.” Opponents of the death penalty also got targeted (in case they got violent).
Bottom line: truth tellers who give Americans too much insight on any number of issues are vulnerable to a vast arsenal of judicial weapons typically associated with China or Myanmar. In the Patriot Act, the government has created a powerful tool to hunt out free thinking on the left or right. It doesn’t discriminate. Anyone who opposes government policy is at risk
How do I know all this? Because I was the second non-Arab American ever indicted on the Patriot Act. My arrest defied all expectations about the law. I was no terrorist plotting to explode the Washington Monument. Quite the opposite, I had worked in anti-terrorism for almost a decade, covering Iraq and Libya, Yemen, Egypt and Malaysia at the United Nations. At the instruction of my CIA handler, I had delivered advance warnings about the 9/11 attack to the private staff of Attorney General John Ashcroft and the Office of Counter-Terrorism in August, 2001. FBI wire taps prove that I carried details of a comprehensive peace framework with Iraq up and down the hallowed corridors of Capitol Hill for months before the invasion, arguing that War was totally unnecessary.
I delivered those papers to Democrats and Republicans alike; to my own second cousin, White House Chief of Staff Andrew Card; and to Secretary of State Colin Powell, who lived next door to my CIA handler. Gratis of the Patriot Act, we had the manila envelope and my hand written notes to Secretary Powell, dated a week before his infamous speech at the United Nations. My papers argued that no WMDs would be found inside Iraq, and that the peace framework could achieve all U.S. objectives without firing a shot.
In short, I was an Asset who loudly opposed War with Iraq, and made every effort to correct the mistakes in assumptions on Capitol Hill.
Then I did the unthinkable. I phoned the offices of Senator Trent Lott and Senator John McCain, requesting to testify before a brand new, blue ribbon Commission investigating Pre-War Intelligence. Proud and confident of my efforts, I had no idea Congress was planning to blame “bad intelligence” for the unpopular War.
Over night I became Public Enemy Number One on Capitol Hill.
Thirty days later I awoke to hear FBI agents pounding on my door. My nightmare on the Patriot Act lasted 5 years— Four years after my arrest, the Court granted me one morning of evidentiary testimony by two supremely credible witnesses. Parke Godfrey verified my 9/11 warnings under oath. Otherwise, I never got my day in Court.
President Obama may be on the brink of breaking the law.
At issue: The 1973 War Powers Act, which says if the president does not get congressional authorization 60 days after military action, the mission must stop within 30 days.
The president formally notified Congress about the mission in Libya with a letter on March 21, which makes Friday the 60-day deadline.
A GNT creation ©2007–2013
