An Imaginary Fascist Constitution

By Juan Cole, Informed Comment

24 October 13

he idea of having a strong Federal government was controversial in the early United States, and one of the ways Federalists reassured Americans that it wouldn't become tyrannical was to append a Bill of Rights to the Constitution.

That attempt to prevent despotism has failed, because the Federal government and its various agencies have set aside the Bill of Rights as a dead letter, substituted for them a bizarre set of interpretations of law, and either avoid having the courts adjudicate their fascist fantasies or managed to have appointed to the bench unethical or authoritarian judges that will uphold virtually anything they do.

How corrupt our system has become is evident when even the New Yorker emphasizes that a secret Senate report found that torture in the Bush years was "unnecessary" and "ineffective." Not that it was "unconstitutional."

The Eighth Amendment of the US constitution forbids 'cruel and unusual punishment.' US courts have found that the Framers' injunction was intended to be dynamic, and did not only forbid those things thought barbaric in 1789 but those things contemporary Americans would find cruel and unusual. As Cornell Law school put it,

'in Weems v. United States it was concluded that the framers had not merely intended to bar the reinstitution of procedures and techniques condemned in 1789, but had intended to prevent the authorization of "a coercive cruelty being exercised through other forms of punishment." The Amendment therefore was of an "expansive and vital character"41 and, in the words of a later Court, "must draw its meaning from the evolving standards of decency that mark the progress of a maturing society." '

If a sheriff in a small town arrested a shoplifter and waterboarded him 54 times, the sheriff would go to jail. Federal officials? Not so much.

Let us just underline the Supreme Court's diction here in Weems. The Framers had sought, they said, to forestall "a coercive cruelty being exercised through other forms of punishment."

Coercive cruelty. Coercive cruelty was the hallmark of treatment of Federal detainees in the Bush era. That was what Abu Ghraib, Bagram and Guantanamo were about. Some prisoners were likely victims of manslaughter by coercive cruelty (it is hard to know when to stop).

Waterboarding is illegal (not to mention setting German shepherds on people to viciously bite them). Professor of Law Wilson R. Huhn writes:

"Three major treaties that the United States has signed and unambiguously ratified prohibit the United States from subjecting prisoners in the War on Terror to this kind of treatment. First, Common Article 3 of the Geneva Convention Relative to the Treatment of Prisoners of War, which the Senate unanimously ratified in 1955, prohibits the parties to the treaty from acts upon prisoners including "violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; . . . outrages upon personal dignity, in particular, humiliating and degrading treatment."[18] Second, the International Covenant on Civil and Political Rights, which the Senate ratified in 1992, states that "[n]o one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment."[19] Third, the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment, which the Senate ratified in 1994, provides that "[e]ach State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction,"[20] and that "[e]ach State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture . . . ."

The United States has enacted statutes prohibiting torture and cruel or inhuman treatment. It is these statutes which make waterboarding illegal… The four principal statutes which Congress has adopted to implement the provisions of the foregoing treaties are the Torture Act,… the War Crimes Act…,and the laws entitled "Prohibition on Cruel, Inhuman, or Degrading Treatment or Punishment of Persons Under Custody or Control of the United States Government"… and "Additional Prohibition on Cruel, Inhuman or Degrading Treatment or Punishment."… The first two statutes are criminal laws while the latter two statutes extend civil rights to any person in the custody of the United States anywhere in the world.

The Torture Act makes it a felony for any person, acting under color of law, to commit an act of torture upon any person within the defendant's custody or control outside the United States…. Torture is defined as the intentional infliction of "severe physical or mental pain or suffering" upon a person within the defendant's custody or control… To be "severe," any mental pain or suffering resulting from torture must be "prolonged."[29] Under this law, torture is punishable by up to twenty years imprisonment unless the victim dies as a result of the torture, in which case the penalty is death or life in prison."

But somehow employees of the US military, the CIA and other Federal agencies managed to ignore all that. So yes, unnecessary and ineffective. But also, illegal and unconstitutional and treasonous.

Then of course there is the National Security Agency's gutting of the Fourth Amendment ban on unreasonable search and seizure. As long as the unreasonable search and seizure happens on the internet, apparently that is all right. What arrogance, what hypocrisy, what fascism.

An honest appeals court just ruled that the government needs a warrant to put a tracking device on your car and follow you around by GPS. But your cell phone metadata also reveals your movements, and the NSA is scooping that information up, effectively following you around without a warrant, exactly what the court just found unjustified. But the Federal government (yes, the Obama administration) has succeeded in keeping NSA practices out of the courts.

While few Americans care that the NSA was intensively spying on the Mexicans, French and Germans, even on German chancellor Angela Merkel's private cell phone, they should. The Bill of Rights were once a point of inspiration for human rights activists around the world. Much of what the youth who led the Arab upheavals of 2011 wanted was enshrined in the Bill of Rights. American ideals and rule of law were part of America's soft power in the world. The European Union is suddenly less cooperative because of our allies' outrage at being spied on. No one wants to be like creepy peeping toms or vicious torturers, and that is what Americans have become.

Moreover, the NSA foreign spying is racist. Yes, on top of everything else, it involves a racist hierarchy. The US doesn't intensively spy on Canadians, British and Australians, i.e. on what were called in the 19th century 'Anglo-Saxons.' It is only the inferior races that Washington subjects to surveillance.

But all that is crashing and burning as the US government has betrayed those ideals over and over again. We're being massively spied on by our government, our location, the people we call, the websites we visit, all being monitored constantly. And if the government decides we are terrorism suspects, we could well be tortured. Martin Luther King's principle of civil disobedience would be categorized as terrorism today, and if he were active in our time, instead of naming a Federal holiday after him, the government would have MLK waterboarded by police dressed up as military commandos.