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http://m.huffpost.com/us/entry/5497673
TheFirst Amendment
"Congress shall make no law respecting an establishment of religion, or prohibiting thefree exercise thereof; or abridging thefreedom of speech, or of the press; or the right of the people peaceably to assemble, and to petitionthe Government for a redressof grievances."
TheFirst 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 asthe ability to openly gather, debate, protest, and criticize, how would the people beableto judge their government'sadherence to the other rights? How could people vote knowledgeably if they didn’t know what wasbeingdone in their name by their government? An informed citizenry, Thomas Jefferson stated, was"a vital requisite for our survival asa free people."
That washow it wasseen long ago. In Post-Constitutional America, however, thegovernment strivesto "control the message," to actively thwart effortsto maintaina citizenry informed about what’s done in itsname, a concept that thesedays seemsas quaint asJefferson'spowdered wig. Thereare far too many examples of thepost-9/11 erosion of the First Amendment to list here. Let'sjust look at a few important onesthat tell the tale of what we have lost since9/11.
(Lack of) Freedomof Information
In 1966, an idea for keeping Americansbetter informed onthe workings of their government was hatched: the Freedom of Information Act (FOIA). Strengthened in 1974, it beganwith the premise that, except for someobvious categories(likeserious national security matters and personal information), the position of thegovernment should be: everything it doesisavailable to the public. Like theBill of Rights, which made specific the limitsof government, FOIA began witha presumption that it was the government’sduty to make information available --and quickly -- to the people, unlessa convincing case could bemadeotherwise. Thedefault position of the FOIA switch wasset to ON.
Three decades later, the FOIA systemworks far differently. Agencies are generally loathto release documentsof any sort and instead put their efforts into creating roadblocks to legitimaterequests. Some still require signatures onpaper. (The State Department notes, “Requestsfor personal information cannot be submitted electronically and should be submitted by mail.”) Othersdemand hyper-detailed information like theprecisedates and titlesof documentswhose datesand 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 deadlinemandated for a response as thetime period to send out a “request received” note. They tend to assign only a few staff membersto processing requests, leading to near-endless delays. At theState Department, most FOIA work is done ona part-time basis by retirees. The CIA won’t directly releaseelectronic versionsof documents. Evenwhen a request is fulfilled, “free” copying isoften denied and reproduction costs exaggerated.
In some cases, the requested recordshavea way of disappearing or aresimply removed. The ACLU’s experiencewhenit filed an FOIA-style request with the Sarasota policedepartment on itsuse of the cell phone surveillance tool Stingray could be considered typical. The morning the ACLU wasto review the files, Federal Marshalsarrived and physically took possession of them, claiming they had deputized the local copsand made thefilesfederal property. An ACLU spokesperson noted that, inother cases, federal authoritieshaveinvoked the Homeland Security Act to prevent the release of records.
John Young, who runs the web siteCryptomeand is a steadfast FOIA requester, stated, “Stonewalling, delay, brush-off, lying are normal. It is a delusionfor ordinary requesters and a bitch of a challenge for professionals. Churninghas become a way of life for FOIA, costly ashell for little results.”
Sealed Lips and the Whistleblower
All government agencies have regulationsrequiring employeesto obtain permission before speaking to the representatives of the people -- that is, journalists. The U.S. IntelligenceCommunity has among the most restrictiveof these policies, banning employeesand contractorscompletely fromtalking with the media without prior authorization. Even speaking about unclassified informationis a no-no that may cost you your job. A government ever more in lockdownmodehas created what one journalist callsa “culture where censorship isthenorm.”
So who doesspeak to Americans about their government? Growing hordesof spokespeople, communicationsstaff, trained PR crews, and those anonymous“senior officials” who pop up so regularly in news articlesin major papers.
Withthe government obsessively seeking to hide or spin what it does, in-the-sunlight contact barred, and those insidelocked behind an ironcurtain of secrecy, the whistleblower hasbecomethe paradigmatic figure of the era. Not surprisingly, anyone who blowsa whistle has, in these years, comeunder fierce attack.
Pick a case: Tom Drakeexposing early NSA effortsto turnitsspy toolson Americans, Edward Snowden proving that the government hasusunder constant surveillance, Chelsea Manning documenting war crimesin Iraq and sleazy diplomacy everywhere, John Kiriakouacknowledging torture by his former employer the CIA, or Robert MacLean revealing Transportation Safety Administration malfeasance. In eachinstance, thethreat of jail wasquick to surface. Thenuclear optionagainst such truthtellersisthe Espionage Act, a law thatoffended theConstitution whenimplemented in themidst of World War I. It has been resurrected by theObama administration asa blunt “wartime” tool for silencing and punishing whistleblowers.
TheObama administration hasalready chargedsix peopleunder that act for allegedly mishandling classified information. EvenRichard Nixononly invoked it once, in a failed prosecution against Pentagon Paperswhistleblower Daniel Ellsberg.
Indeed, the very word “espionage” couldn’t be stranger inthe 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, thepowers-that-be stand ready to twist language in whatever Orwellian direction isnecessary to bridge the gap between reality and theking'sneeds. In theEspionage Act case of State Department contractor Stephen Kim, a judge departed from previousprecedent, ruling that the prosecutionneed not even show that the information leaked to a Foxnews 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 questionmight be: How could a law designed almost 100 yearsago to stop Germanspies in wartime have become a tool to silence the few Americans willing to risk everything to exercise their First Amendment rights? When did freespeechbecomea crime?
Self-Censorship and thePress
Each person charged under the Espionage Act in these years wasprimarily a sourcefor a journalist. Thewriters of the Bill of Rightschose to include the term“press” in the First Amendment, specifically carving out a special place for journalistsin our democracy. The press wasnecessary to question government officialsdirectly, comment on their actions, and inform the citizenry about what its government wasdoing. Sadly, asthe Obama administration ismoving ever more fiercely against those who might reveal its actsor documents, the bulk of themedia haveacquiesced. Glenn Greenwald said it plainly: too many journalistshavegone into a self-censoring mode, practicing "obsequious journalism."
For example, a survey of reportersshowed “the percentageof U.S. journalists endorsing the occasional use of ‘confidential businessor government documentswithout authorization,’ dropped significantly from81.8% in 1992 to 57.7% in 2013.” About 40% of American journalistswould not have published documentslikethose Edward Snowden revealed.
And the same hasbeen trueof the management of newspapers. In mid-2004, James Risen and Eric Lichtblau uncovered George W. Bush's illegal warrantlesseavesdropping program, but the New York Times held the story for15 months, until after Bush'sreelection. Executives at the Timeswere told by administration officialsthat if they ran the story, they'd behelping terrorists. They accepted that. In 2006, the Los AngelesTimessimilarly gavein to the NSA and suppressed a story on government wiretaps of Americans.
Government Effortsto Stop Journalists
Reportersneed sources. Increasingly, thegovernment is classifying just about any document it produces--92 million documentsin 2011 alone. Itsintelligence agencies have even classified reportsabout theover-classification of documents. As a result, journalistic sourcesareoften pressed into discussing, at great personal risk, classified information. Forcing a reporter to reveal such sourcesdiscouragesfuture whistleblowing.
In one of the first of a series of attemptsto make journalists reveal their sources, former Fox News reporter Mike Levine stated that the Justice Department persuaded a federal grand jury to subpoena him inJanuary 2011. The demand wasthat hereveal hissourcesfor a 2009 story about Somali-Americanswho weresecretly indicted in Minneapolis for joiningan 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 amountsof time have been spent by theDepartment of Justicein the searchfor a legal rationale for indicting journalistsfor their participation in exposing classified documents. A crucial test case isJamesRisen's 2006 book, State of War, which had an anonymously sourced chapter on a failed CIA operation to disrupt Iran’snuclear program. When Risen, citing the First Amendment, refused to identify his source or testify inthe 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 otherslikeit to intimidate reportersand whistleblowers. But I am appealing to the Supreme Court because it istoo dangerousto allow the government to conduct national security policy completely in the dark.”
In June2014, the SupremeCourtrefused to take Risen'scase onappeal, essentially ratifying a U.S. Court of Appealsdecision that the First Amendment didn’t protect a reporter from being forced to testify about “criminal conduct that thereporter personally witnessed or participated in.” That decisionmakes clear that a reporter receiving classified information froma source is part of the crime of “leaking.”
Risen hassaid he will go to prison rather than testify. It ispossible 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 hisJustice Department might take that path -- a break for Risen himself, but not for reportersmore generally who now know that they can be jailed for refusing to divulgea source without hope of recourse to the SupremeCourt.
TheDescent Into Post-Constitutionalism
Aswith the King of England once upon a time, many of the things the government now does have been approved in secret, sometimesin secret courts according to a secret body of law. Sometimes, they wereeven approved openly by Congress. In constitutional America, theactionsof the executive and the lawspassed by Congresswere only legal whenthey did not conflict with theunderlying constitutional principlesof 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 prisonersand inthe Obama yearsto the drone assassination of Americans. Becausesuch “legalities” remain officially classified, they are, of course, doubly difficult to challenge.
But can’t we count on theusual pendulum swingsin Americanlife to change this? There were indeed notablemomentsin Americanhistory whenparts of the Constitution were put aside, but noneare truly comparable to our current situation. The Civil War lasted five years, with Lincoln'ssuspension of habeas corpus limited in geography and robustly contested. TheWorld War II Japaneseinternment camps closed after three yearsand the persecuted were a sub-set of Japanese-Americansfrom theWest Coast. Senator McCarthy’snotorious career asa communist-hunter lasted four years and ended in shame.
Almost 13 years after the9/11 attacks, it remains “wartime.” For the war on terror, the driver, excuse, and raison d'êtrefor the tattering of the Bill of Rights, there is no end in sight. Recently retired NSA head Keith Alexander istypical of key figuresin thenational security statewhen he claimsthat despite, well, everything, thecountry isat greater risk today than ever before. Thesedays, wartime isforever, which meansthat a government working ever more insecret has ever more latitude to decidewhich rightsin which formapplied in what manner arestill inalienable.
Theusual critical history of our descent into a post-constitutional state goes something like this: in the panicafter the 9/11 attacks, under the leadership of Vice President Dick Cheney withthe support of President GeorgeW. Bush, a cabal of top government officialspushed through legal-litemeasures to (as they liked to say) “take the glovesoff” and allow kidnapping, torture, illegal surveillance, and offshore imprisonment along withindefinite detentionwithout charges or trial.
Barack Obama, elected on a seriesof (false) promises to roll back theworst of the Bush-era crimes, while rejecting torture and closing America’soverseas “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 administrationslied, performed legal acrobatics, and bullied their way toward a kind of absolute power that hasn’t been seen sincethe days of King George. That'sthecommon narrative and, whilenot wrong, it isincomplete.
Missing Arethe People
One key factor remains missingin such a versionof post-9/11 eventsin America: the people. Even today, 45% of Americans, when polled on thesubject, agree that torture is“sometimesnecessary and acceptable to gain informationthat may protect thepublic.” Americansasa group seem unsure about whether the NSA's global and domesticsurveillanceis justified, and many remainconvinced that Edward Snowden and the journalistswho published hismaterial are criminals. The most common memerelated to whistleblowersisstill “patriot or traitor?” and toward the war on terror, “security or freedom?”
It’snot that Americans areincorrect to befearful and feel inneed of protection. Themain thingwe need to protect ourselvesagainst, however, isnot themodest domestic threat from terrorists, but a new king, a unitary executive that hastaken 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 strongBill of Rightsto protect us-- indeed, secureus-- from the dangersof our own government, we will have gone full-circleto a Post-Constitutional America that sharesmuchin common with the pre-constitutional British colonies.
Yet there is no widespread, mainstream movement of oppositionto what the government hasbeen doing. It seems, in fact, that many Americansare willing to accept, perhapseven welcomeout of fear, the death of the Bill of Rights, one amendment at a time.
We are thefirst to see, in however shadowy form, the outlinesof what a Post-Constitutional America might look like. We could be the last who might be able to stop it.
TheFirst Amendment
"Congress shall make no law respecting an establishment of religion, or prohibiting thefree exercise thereof; or abridging thefreedom of speech, or of the press; or the right of the people peaceably to assemble, and to petitionthe Government for a redressof grievances."
TheFirst 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 asthe ability to openly gather, debate, protest, and criticize, how would the people beableto judge their government'sadherence to the other rights? How could people vote knowledgeably if they didn’t know what wasbeingdone in their name by their government? An informed citizenry, Thomas Jefferson stated, was"a vital requisite for our survival asa free people."
That washow it wasseen long ago. In Post-Constitutional America, however, thegovernment strivesto "control the message," to actively thwart effortsto maintaina citizenry informed about what’s done in itsname, a concept that thesedays seemsas quaint asJefferson'spowdered wig. Thereare far too many examples of thepost-9/11 erosion of the First Amendment to list here. Let'sjust look at a few important onesthat tell the tale of what we have lost since9/11.
(Lack of) Freedomof Information
In 1966, an idea for keeping Americansbetter informed onthe workings of their government was hatched: the Freedom of Information Act (FOIA). Strengthened in 1974, it beganwith the premise that, except for someobvious categories(likeserious national security matters and personal information), the position of thegovernment should be: everything it doesisavailable to the public. Like theBill of Rights, which made specific the limitsof government, FOIA began witha presumption that it was the government’sduty to make information available --and quickly -- to the people, unlessa convincing case could bemadeotherwise. Thedefault position of the FOIA switch wasset to ON.
Three decades later, the FOIA systemworks far differently. Agencies are generally loathto release documentsof any sort and instead put their efforts into creating roadblocks to legitimaterequests. Some still require signatures onpaper. (The State Department notes, “Requestsfor personal information cannot be submitted electronically and should be submitted by mail.”) Othersdemand hyper-detailed information like theprecisedates and titlesof documentswhose datesand 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 deadlinemandated for a response as thetime period to send out a “request received” note. They tend to assign only a few staff membersto processing requests, leading to near-endless delays. At theState Department, most FOIA work is done ona part-time basis by retirees. The CIA won’t directly releaseelectronic versionsof documents. Evenwhen a request is fulfilled, “free” copying isoften denied and reproduction costs exaggerated.
In some cases, the requested recordshavea way of disappearing or aresimply removed. The ACLU’s experiencewhenit filed an FOIA-style request with the Sarasota policedepartment on itsuse of the cell phone surveillance tool Stingray could be considered typical. The morning the ACLU wasto review the files, Federal Marshalsarrived and physically took possession of them, claiming they had deputized the local copsand made thefilesfederal property. An ACLU spokesperson noted that, inother cases, federal authoritieshaveinvoked the Homeland Security Act to prevent the release of records.
John Young, who runs the web siteCryptomeand is a steadfast FOIA requester, stated, “Stonewalling, delay, brush-off, lying are normal. It is a delusionfor ordinary requesters and a bitch of a challenge for professionals. Churninghas become a way of life for FOIA, costly ashell for little results.”
Sealed Lips and the Whistleblower
All government agencies have regulationsrequiring employeesto obtain permission before speaking to the representatives of the people -- that is, journalists. The U.S. IntelligenceCommunity has among the most restrictiveof these policies, banning employeesand contractorscompletely fromtalking with the media without prior authorization. Even speaking about unclassified informationis a no-no that may cost you your job. A government ever more in lockdownmodehas created what one journalist callsa “culture where censorship isthenorm.”
So who doesspeak to Americans about their government? Growing hordesof spokespeople, communicationsstaff, trained PR crews, and those anonymous“senior officials” who pop up so regularly in news articlesin major papers.
Withthe government obsessively seeking to hide or spin what it does, in-the-sunlight contact barred, and those insidelocked behind an ironcurtain of secrecy, the whistleblower hasbecomethe paradigmatic figure of the era. Not surprisingly, anyone who blowsa whistle has, in these years, comeunder fierce attack.
Pick a case: Tom Drakeexposing early NSA effortsto turnitsspy toolson Americans, Edward Snowden proving that the government hasusunder constant surveillance, Chelsea Manning documenting war crimesin Iraq and sleazy diplomacy everywhere, John Kiriakouacknowledging torture by his former employer the CIA, or Robert MacLean revealing Transportation Safety Administration malfeasance. In eachinstance, thethreat of jail wasquick to surface. Thenuclear optionagainst such truthtellersisthe Espionage Act, a law thatoffended theConstitution whenimplemented in themidst of World War I. It has been resurrected by theObama administration asa blunt “wartime” tool for silencing and punishing whistleblowers.
TheObama administration hasalready chargedsix peopleunder that act for allegedly mishandling classified information. EvenRichard Nixononly invoked it once, in a failed prosecution against Pentagon Paperswhistleblower Daniel Ellsberg.
Indeed, the very word “espionage” couldn’t be stranger inthe 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, thepowers-that-be stand ready to twist language in whatever Orwellian direction isnecessary to bridge the gap between reality and theking'sneeds. In theEspionage Act case of State Department contractor Stephen Kim, a judge departed from previousprecedent, ruling that the prosecutionneed not even show that the information leaked to a Foxnews 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 questionmight be: How could a law designed almost 100 yearsago to stop Germanspies in wartime have become a tool to silence the few Americans willing to risk everything to exercise their First Amendment rights? When did freespeechbecomea crime?
Self-Censorship and thePress
Each person charged under the Espionage Act in these years wasprimarily a sourcefor a journalist. Thewriters of the Bill of Rightschose to include the term“press” in the First Amendment, specifically carving out a special place for journalistsin our democracy. The press wasnecessary to question government officialsdirectly, comment on their actions, and inform the citizenry about what its government wasdoing. Sadly, asthe Obama administration ismoving ever more fiercely against those who might reveal its actsor documents, the bulk of themedia haveacquiesced. Glenn Greenwald said it plainly: too many journalistshavegone into a self-censoring mode, practicing "obsequious journalism."
For example, a survey of reportersshowed “the percentageof U.S. journalists endorsing the occasional use of ‘confidential businessor government documentswithout authorization,’ dropped significantly from81.8% in 1992 to 57.7% in 2013.” About 40% of American journalistswould not have published documentslikethose Edward Snowden revealed.
And the same hasbeen trueof the management of newspapers. In mid-2004, James Risen and Eric Lichtblau uncovered George W. Bush's illegal warrantlesseavesdropping program, but the New York Times held the story for15 months, until after Bush'sreelection. Executives at the Timeswere told by administration officialsthat if they ran the story, they'd behelping terrorists. They accepted that. In 2006, the Los AngelesTimessimilarly gavein to the NSA and suppressed a story on government wiretaps of Americans.
Government Effortsto Stop Journalists
Reportersneed sources. Increasingly, thegovernment is classifying just about any document it produces--92 million documentsin 2011 alone. Itsintelligence agencies have even classified reportsabout theover-classification of documents. As a result, journalistic sourcesareoften pressed into discussing, at great personal risk, classified information. Forcing a reporter to reveal such sourcesdiscouragesfuture whistleblowing.
In one of the first of a series of attemptsto make journalists reveal their sources, former Fox News reporter Mike Levine stated that the Justice Department persuaded a federal grand jury to subpoena him inJanuary 2011. The demand wasthat hereveal hissourcesfor a 2009 story about Somali-Americanswho weresecretly indicted in Minneapolis for joiningan 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 amountsof time have been spent by theDepartment of Justicein the searchfor a legal rationale for indicting journalistsfor their participation in exposing classified documents. A crucial test case isJamesRisen's 2006 book, State of War, which had an anonymously sourced chapter on a failed CIA operation to disrupt Iran’snuclear program. When Risen, citing the First Amendment, refused to identify his source or testify inthe 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 otherslikeit to intimidate reportersand whistleblowers. But I am appealing to the Supreme Court because it istoo dangerousto allow the government to conduct national security policy completely in the dark.”
In June2014, the SupremeCourtrefused to take Risen'scase onappeal, essentially ratifying a U.S. Court of Appealsdecision that the First Amendment didn’t protect a reporter from being forced to testify about “criminal conduct that thereporter personally witnessed or participated in.” That decisionmakes clear that a reporter receiving classified information froma source is part of the crime of “leaking.”
Risen hassaid he will go to prison rather than testify. It ispossible 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 hisJustice Department might take that path -- a break for Risen himself, but not for reportersmore generally who now know that they can be jailed for refusing to divulgea source without hope of recourse to the SupremeCourt.
TheDescent Into Post-Constitutionalism
Aswith the King of England once upon a time, many of the things the government now does have been approved in secret, sometimesin secret courts according to a secret body of law. Sometimes, they wereeven approved openly by Congress. In constitutional America, theactionsof the executive and the lawspassed by Congresswere only legal whenthey did not conflict with theunderlying constitutional principlesof 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 prisonersand inthe Obama yearsto the drone assassination of Americans. Becausesuch “legalities” remain officially classified, they are, of course, doubly difficult to challenge.
But can’t we count on theusual pendulum swingsin Americanlife to change this? There were indeed notablemomentsin Americanhistory whenparts of the Constitution were put aside, but noneare truly comparable to our current situation. The Civil War lasted five years, with Lincoln'ssuspension of habeas corpus limited in geography and robustly contested. TheWorld War II Japaneseinternment camps closed after three yearsand the persecuted were a sub-set of Japanese-Americansfrom theWest Coast. Senator McCarthy’snotorious career asa communist-hunter lasted four years and ended in shame.
Almost 13 years after the9/11 attacks, it remains “wartime.” For the war on terror, the driver, excuse, and raison d'êtrefor the tattering of the Bill of Rights, there is no end in sight. Recently retired NSA head Keith Alexander istypical of key figuresin thenational security statewhen he claimsthat despite, well, everything, thecountry isat greater risk today than ever before. Thesedays, wartime isforever, which meansthat a government working ever more insecret has ever more latitude to decidewhich rightsin which formapplied in what manner arestill inalienable.
Theusual critical history of our descent into a post-constitutional state goes something like this: in the panicafter the 9/11 attacks, under the leadership of Vice President Dick Cheney withthe support of President GeorgeW. Bush, a cabal of top government officialspushed through legal-litemeasures to (as they liked to say) “take the glovesoff” and allow kidnapping, torture, illegal surveillance, and offshore imprisonment along withindefinite detentionwithout charges or trial.
Barack Obama, elected on a seriesof (false) promises to roll back theworst of the Bush-era crimes, while rejecting torture and closing America’soverseas “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 administrationslied, performed legal acrobatics, and bullied their way toward a kind of absolute power that hasn’t been seen sincethe days of King George. That'sthecommon narrative and, whilenot wrong, it isincomplete.
Missing Arethe People
One key factor remains missingin such a versionof post-9/11 eventsin America: the people. Even today, 45% of Americans, when polled on thesubject, agree that torture is“sometimesnecessary and acceptable to gain informationthat may protect thepublic.” Americansasa group seem unsure about whether the NSA's global and domesticsurveillanceis justified, and many remainconvinced that Edward Snowden and the journalistswho published hismaterial are criminals. The most common memerelated to whistleblowersisstill “patriot or traitor?” and toward the war on terror, “security or freedom?”
It’snot that Americans areincorrect to befearful and feel inneed of protection. Themain thingwe need to protect ourselvesagainst, however, isnot themodest domestic threat from terrorists, but a new king, a unitary executive that hastaken 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 strongBill of Rightsto protect us-- indeed, secureus-- from the dangersof our own government, we will have gone full-circleto a Post-Constitutional America that sharesmuchin common with the pre-constitutional British colonies.
Yet there is no widespread, mainstream movement of oppositionto what the government hasbeen doing. It seems, in fact, that many Americansare willing to accept, perhapseven welcomeout of fear, the death of the Bill of Rights, one amendment at a time.
We are thefirst to see, in however shadowy form, the outlinesof what a Post-Constitutional America might look like. We could be the last who might be able to stop it.