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Van Buren writes: “Here’s what passes for good news when it comes to a free press these days: two weeks ago, the Supreme Court refused without comment to hear a case involving New York Times reporter James Risen.”

James Risen, a reporter for The New York Times, spoke at an event at the University of California, Berkeley, in November. (photo: Alex Menendez/AP)
James Risen, a reporter for The New York Times, spoke at an event at the University of California, Berkeley, in November. (photo: Alex Menendez/AP)


What We've Lost Since 9/11

By Peter Van Buren, TomDispatch

16 June 14

 

merica 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. 


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+13 # Jingze 2014-06-16 10:21
While drawing on 9/11 is convenient, one should really go back to the day JFK was slaughtered followed by 1968, the year which put a heavy exclamation point on that terrible disaster. Yes, the country changed significantly on 11/22. It lost its heart and spirit. Now the people have no voice in their government, and the laughingly "sacred" constitution has become a shallow read.
 
 
+4 # Radscal 2014-06-16 12:23
And of course, what we remember and honor JFK for was fighting against the state apparatus that was largely created through the 1947 National Security Act.
 
 
+4 # Tazio 2014-06-16 13:11
Kennedy referred to the CIA as "that army behind my back".
 
 
+12 # wipster 2014-06-16 10:31
Even more so with a government that can set up a "Wag the Dog" false flag event like 9/11 and convince the American public that three steel framed buildings can collapse from office fires all planned by a bearded Saudi in a cave in Afghanistan and that cell phones worked great in planes back in 2001...

And if you question that based on the laws of basic physics you're not a "patriot."
 
 
+6 # Pikewich 2014-06-16 12:23
I agree with all you said but would suggest the "patriot" thing is not fair.

The general population has been indoctrinated to live in fear of everyone including their neighbors. They are very afraid of the implications of the explosive demolition of WTC's 1, 2 and 7. It would mean government complicity, and they can not handle that.

So my take on it is: "And if you question that based on the laws of basic physics you're are a coward, fool and tool of empire"
 
 
+4 # universlman 2014-06-16 11:07
Government transparency began to disappear long before the Presidential election of 2008. In that year, the volume of government documents officially classified as "secret" increased five-fold. This escalation has not slowed since. I assume that part of this volume includes all of our phone records.

The government by raising this protective shield, deliberately hides their activity from the type of embarrassing public outrage stirred-up by Manning and Snowden.

This is the type of action that the authors are warning us against. Opening this archive will be a lot harder than closing the Guantanamo Bay detention camp. We should have better things to do.

http://en.wikipedia.org/w/index.php?title=File:Information_Security_Oversight_Office_(ISOO)_2011_Annual_Report_to_the_President.pdf&page=12
 
 
+15 # ChrisCurrie 2014-06-16 11:26
The 5 Republican "Justices" of the US Supreme Court have done more to "trash" the US Constitution than anyone else. The word "corporation" cannot be found anywhere in the US Constitution, but they ruled that "corporations are people" as far as Constitutional protections are concerned (i.e. THEY LIED!). In nearly all of their decisions, they have sided with corporate interests at the expense of the Constitutional rights of individual US citizens, and they have clearly allowed our government to figuratively "thumb its nose" at US citizens' 4th Amendment rights. Now, if the Trans Pacific Partnership treaty and its Atlantic counterpart are passed, our constitutional form of government will (for most practical purposes) be replaced with world-wide oligarchy of super-rich corporate CEOs who have "no god but money!"
 
 
+5 # Radscal 2014-06-16 12:28
The evisceration of our Constitution and nullification of our Bill of Rights has been a thoroughly bi-partisan "success."

The rise of corporate power specifically, began when corporations were given "human rights" in the 1886 Santa Clara v. Southern Pacific Railroad case.
 
 
+2 # janie1893 2014-06-16 13:07
So what are you going to do about it?
 
 
+1 # 6thextinction 2014-06-16 18:44
This article is inaccurate about Americans. "A new poll from Quinnipiac University suggests that, despite widespread efforts by politicians to attack and demonize Ed Snowden, a growing percentage of the American population views him as a whistleblower. It's now up to 57% from what had been 55% in the last poll. The same poll also showed that a majority of people now think that the US government's anti-terrorism policies have "gone too far. It cracked 51%, up from 45% right after the first Snowden revelation, and way up from the 25% who felt that way back in 2010." These attitudes don't indicate that "Americans are willing to accept, perhaps even welcome out of fear, the death of the Bill of Rights, one amendment at a time" as Van Buren writes.
 
 
+1 # jcdav 2014-06-16 19:54
We can but hope...it will take massive numbers of people willing to unass and risk incarceration (or worse as the situation deteriorates) to get the MIC to realize it is outnumbered (but not out gunned)...
Time is fast approaching or all will be lost to the banana republic of Amerika.
 
 
0 # robcarter.vn 2014-06-16 21:01
Yes but it was before 9/11 SCOTUS like the God to Moses. In USA SCOTUS Gorey details post-Elections ~ Handed you the BURNING BUSH & you let it be then, so must wear it now?
 
 
+2 # RMDC 2014-06-17 05:19
Thanks. this is good. It is clear that as our media and leaders said over and over, "9-11 changed everything." It was the coming out party for the American fascists. They no longer need to hide their intentions or goals -- although they do hide most of them. But there is enough for anyone who looks to see that the US is a police state run for the benefit of its big banks and corporations.

For at least 100 years, the US has been the most heavily propagandized nation on earth. People cannot very well analyze the social and political scene. The are presented with cartoon-like characters for political leaders -- Bush and Obama are the most cartoon-like of all. These leaders only are for TV. They do what they are told to by the CIA.
 
 
+1 # Carroll R. 2014-06-18 00:02
The real people who should be tried under the Espionage Act is the government for unconstitutiona l acts of spying on it's citizens and data basing all their private communication to be used against them in a court of law sometime in the unspecified future.
Just writing that sentence astounds me that this was passed by our congress who thought it was perfectly legitimate.
This country is indeed in a great deal of trouble. We are still so affected by the 19th century rulings of Supreme Court that handed over the Bill of Rights--- the rights we enjoy as living human beings, common to all human beings, to railroad contracts, man made constructs that exist only for the purpose of making money for the few, because the court did not want to acknowledge that the Bill of Rights now belonged to the freed slaves. Thus, instead of a body of law built on the 13th, 14th, 15th amendments applied to human beings as is demanded by the constitution (& 9th amendment, one of the powerful amendments of individual rights in the constitution) we have the gobble-di-gook of 19th century law that institutionaliz ed bigotry,, ushered in JimCrow and gave our unalienable rights to railroad contracts. The irony being that they had and have no right to do that, our rights being, to put it in today's speak, non negotiable. So, as I, say, who really needs to be prosecuted under espionage act.
 

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