Civil Rights

Democratic Values

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 ~ Plato:

This and no other is the root from which a tyrant springs; when he first appears he is a protector.

A tyranny grows under a veneer of benevolence and the guise of protection. Security is being secured all right, but whose, and against what or whom?

Monday we honored Martin Luther King Jr., our country's pre-eminent civil rights leader. I was somewhat preoccupied that day, but later, during the Internet blackout, I thought about his legacy and importance to the underlying values of our country. King fought to enfranchise people of color, and by extension elevated and strengthened the civil rights of us all.

While we recall his vision, courage and ultimate sacrifice, we should ask also what has become of his legacy today?

What is the state of civil rights in America?

The short answer: in steep decline, facing existential threat, with almost no one in positions of power defending them.

The Bill of Rights

The Founders of the United States were keenly aware of the fragility of their nascent democracy. In protracted and vigorous debate they undertook considerable pains to craft a system of government defined not by the vagaries of men, but by the rule of law. Cognizant of centuries of European feudalism and the impact that whims of sometimes venal lords had on people, they grounded their great triumph of popular governance in core values, notably life, liberty and the pursuit of happiness.

They also drafted an initial 10 amendments to the Constitution—the Bill of Rights—arguably the most significant espousal of the primacy of the people over authority since the Magna Carta 5 centuries prior, if not ever. These rights, and the debate that lay behind their crafting, explicitly vest ultimate political power and legitimacy in people, not governments or institutions.

Whither the Bill of Rights. No, that's not a question, but rather a sad observation in realization of what has been happening before our all-too-distracted eyes. We needn't wonder at the future of these core principles that protect our very rights as humans; rather we must wonder at how those rights are being whittled away and hollowed out with hardly a peep from our political leadership.

The vigor of our civil rights is withering. Our leaders in all three branches of government swear the most solemn of oaths on pain of impeachment to defend these rights, but instead they either stand silently by or, worse, undermine them from avarice, temporal political advantage, or sheer cowardice.

The Bill of Rights, as amendments to our Constitution, are explicitly the highest law of the land and, as law, stand apart and above the desires and machinations of men. When our highest laws prove impediments to the powerful, and who then contrive to twist and torture them in justification of ulterior ends, it is nothing less than the diminution of our civil rights and the beginning of tyranny.

The United States is becoming an authoritarian state where Congress passes unconstitutional laws, our presidents behave with disregard to the Constitution or act unilaterally, and our courts deny the people redress even as they actively abet the creation of an oligarchy that our laws largely no longer touch.

I wish this were an exaggeration, but sadly, no, it is not. Behold how the Bill of Rights has been steadily eviscerated:

Amendment 1

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 erosion of these rights is longstanding, and goes back at least to the placement of "In God we trust" on our currency in 1957, a slight which seems almost innocent today. But it reveals a deeper pattern, for this tidbit of religion has twice been upheld by the Supreme Court using two non-Constitutional justifications that have been widely used to undermine our rights more broadly: (1) it is OK because it is "patriotic" and (2) those challenging lack "standing", the legal position or right to bring action. (I'll come back to these two insidious notions in a bit.)

Complaints about words on our money or whether Rastafarians can legally use marijuana, for example, might seem quaint or of trifling concern, but the damage to the First Amendment has accelerated alarmingly since, and especially in the 10 years since 9/11. There's a slippery slope from the prohibition against endangering others by falsely yelling "Fire!" in a crowded space to the restrictions piling up today.

The right of peaceful assembly is a core principle of American democracy, yet it has been curbed with the rise of the Occupy Movement. These peaceful assemblies are seeking government redress on inequality, bankster malfeasance, and economic policy more generally, yet they are being shut down, sometimes with unnecessary force and often on the wispiest of pretexts. Frequently, we are told, the protestors must go home because they are violating zoning or curfew laws. However, our parks and streets are public spaces, owned by the people, and no park rule or local zoning law should be allowed to overrule a Constitutional right. Yet somehow local officials and police are able, with impunity, to simply revoke this civil right on the flimsiest of suggestions that the gatherings (might) threaten public health or safety. (Never mind that what is being protested represent much greater such threats.)

The rights of journalists to freely report are also under attack. At least 30 have been arrested at Occupy protests despite complying with police instructions and clearly identifying themselves as members of the press. As has become the trend in war reporting, only pre-approved (embedded?) reporters are now allowed access, a right that can be arbitrarily rescinded, leading to considerable self-censorship. Individuals and "snooping bloggers" are also being arrested for filming the actions of police. Attempts to freely observe what happens in public and to record and report it is now leading to the beating and arrest of those trying to do so. This is not only unconstitutional, but has a chilling effect on many-fold more than just those attacked.

Finally, there is the patently unconstitutional directive of prior restraint encoded in the latest attempted insults to our freedom of expression: the Stop Online Piracy Act (SOPA) and the Protect IP Act (PIPA). These bills would empower the government to effectively suppress any web sites that "encourage" or "facilitate" piracy, and would have the effect of diminishing or squelching forums, blogs, and the general diversity of opinion, all while doing nothing about actual piracy. Such bills are responsive to big business interests, and sacrifice civil liberties. These proposed pieces of legislation are so bad that they provoked an Internet blackout that appears, for now, to have forced Congress to back off (but they will be back).

Amendment 2

A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

I have long been deeply suspicious of self-styled (and thoroughly unregulated) militias and their arguments that they must be able to buy, own and use without restriction any kind of weapon from assault rifles to rocket propelled grenades, missiles, or other war armaments. The same thinking that prevents the yelling of "Fire!" should also apply here—the philosophical primacy of life, liberty and the pursuit of happiness must take precedence. Many of these so-called militias are little more than self-reinforcing groups of racists and angry reactionaries whose social philosophies and emotional immaturity make most citizens very uneasy. Their warnings about creeping government tyranny, however, are starting to look alarmingly prescient.

The first half of 2009 saw the rise of the now co-opted Tea Party movement. There were many at those rallies openly carrying loaded weapons. That was broadly ignored at the time, and authorities largely turned a blind eye towards even the most incendiary speech and rifle-waving. No more. With the Occupy Movement the response is quite different—here authority perceives danger in protesters having anything (poo, sticks) that might even be repurposed as a weapon. Surely, such concerns are manufactured solely as a pretext for dispersing the Occupiers, but that's partly the point. The authorities seemingly can now curtail fundamental rights at their convenience and on their sole say-so that it might lead to lawless behavior.

Amendment 3

No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.

This lesser-known Amendment was more relevant at the time of the Revolutionary War when the British forced colonists to accommodate troops in their homes. It is not currently much of a concern, it seems, but it could quickly become so. Here's how.

The meaning, as well as the import, of the word "war" has changed over time. Successive Presidents have (as the Founders deliberately intended) found it constraining and inconvenient to initiate hostilities broadly understood for millennia to be wars. Congress was sufficiently piqued to enact the War Powers Resolution, but it has not deterred executive unilateralism by any administration, including Obama's, since it was passed over President Nixon's veto in 1973.

We no longer just fight wars without a Constitutionally required Congressional declaration. Now we also fight "wars" that are more properly police actions. The War on Drugs was the camel's nose under the tent in excusing (by both lawmakers and much of the public) end-runs around Constitutional restrictions, and beginning the use of our military as an instrument of criminal policing. The camel has move inside permanently with the now decade-long War on Terror, and the fanning of a mostly diffuse fear into calls for greater security, smoothing a ready acquiescence to more pervasively and invasively authoritarian measures.

Like the War on Drugs, the War on Terror has no end. It is the Endless War. There is no triumphant battlefield moment where the enemy is utterly vanquished or surrenders and returns to civilian life. We have entered a time of permanent war and the concentration of "emergency" powers that go with it in progressively less transparent and accountable institutions and individuals. Laws such as the Patriot Act increase arbitrary powers at the expense of civil liberties, and now the National Defense Authorization Act (NDAA) empowers the military further even as it expands the definition of what counts as terrorism.

How long until there are laws "in time of war", as the Third Amendment requires, that require citizens to admit the military into their homes in prosecution of that Endless War? Once "quartered" in our homes, the rest of our rights are literally overwhelmed from the occupation of even our homes by military force. Which leads to...

Amendment 4

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.

In the name of fighting the Endless War, the United States now routinely conducts warrantless searches under the Patriot Act without any necessity of showing probable cause. The government can compel virtually any business to turn over its records in an investigation it has the sole authority to determine is terrorism-related. There is no meaningful avenue of appeal, and furthermore, most are unaware since an absolute edict of secrecy can be imposed that prevents anyone knowing. National security letters on the unilateral action of the executive branch can be used to permit virtually any intrusion without explanation, review or even disclosure.

The Fourth Amendment has also been widely considered to implicitly recognize a right to privacy, "secure... against... searches" but our privacy is virtually non-existent. The Echelon system has allowed government to monitor all our communications in real time, en masse, and without the bother of having to name any specific objective or target. The explosion of closed-circuit video monitoring equipment has put everyone under continuous and near-ubiquitous observation. The resultant recordings, even when owned by third parties, are now accessible on demand by the government, and the providing businesses immune to lawsuit. The correlation with tracking information such as financial transactions, automatic highway toll paying, and from GPS, will permit the complete monitoring of everyone, including where they go, how long hey spend there, and with whom they meet. Our government: gone fishing.

As we expect and accede to less and less right to privacy and to the protections of the Fourth Amendment, we enable their permanent loss. What's next? Letting the government disable the Internet?

Amendment 5

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

This amendment nominally applies to "any criminal case" which may explain another facile by-product of the Endless War: for a decade now our government can effectively ignore this right by the simple expedient of claiming it is necessary to combat terrorism. The destruction of the rights embodied in this Amendment is indisputable and the list of specific transgressions long and includes extraordinary rendition, "enhanced" interrogation, and arbitrary execution, even of Americans. Authorities can even seize everything you own on a mere suspicion. Nowhere in any of these egregious examples does any kind of bona fide due process of law obtain.

There is also indefinite military detention: the government can no hold anyone, including American citizens without trial or, it would seem, right of habeas corpus. The power to do this has been greatly expanded under NDAA and those so held can be denied access to anyone. The government need not even admit who they are holding. Has our Congress passed and our President signed a law that creates an American gulag? It appears that we have, and it's not just at Guantanamo Bay and only for foreign nationals anymore.

With all these arbitrary ways the Fifth Amendment can be ignored it is very easy to subject individuals to a rather long sequence of deprivations. The prohibition against double jeopardy also does not seemingly include being tried in both civilian and military courts.

Amendment 6

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

Again, these rights are withering because of the broadening definition of terrorism and the expansion of what constitutes aiding or facilitating those suspected of terrorism or associating with terrorist suspects. Indefinite detention and other aspects of the emerging American gulag are allowing incarceration without trial, speedy or otherwise. We are moving to a system of Star Chambers, as the government simply claims the need for secrecy to protect sources and methods. In terrorism cases evidence and witnesses are routinely withheld, and even the specific charges and legal interpretations need not be given. The government now makes, interprets and enforces secret laws entirely in secret. All the government need do is claim a national security rationale, without even the need to detail the claim; courts accept such claims uncritically.

Between the aggressive expansion of terrorism to include principled dissent, and the use of the Endless War to reinterpret criminal activities into existential hostilities, the Sixth Amendment is being pushed aside. This is the clearest example of giving up liberty for security, acquiring (and deserving) neither.

Amendment 7

In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.

Especially with the costs of incarceration, the value of personal liberty rather exceeds twenty dollars! Yet the secret trials and military tribunals need not have juries. And here again the Endless War allows the militarization of alleged misdeeds that take it out of civilian reach and the application of common law.

Amendment 8

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Our government routinely employs cruel, inhuman and degrading punishments on detainees. From Abu Ghraib to Guantanamo, prisoners have been routinely, and at times sytematically, denied their civil rights on the expedient that they are military detainees, or, in that triumph of Orwellian doublespeak, enemy combatants. The laundry list of violations is well-documented and includes prolonged solitary confinement, water-boarding. And then there are the barbarically grim violations that follow a detainee's extraordinary rendition.

Amendment 9

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

This is my favorite part of the entire Bill of Rights, maybe even of the whole Constitution, as it codifies, in one spare but elegant sentence the absolutely pre-eminent principle that ours is a system of governance contingent on the consent of the governed.

It is because of this Amendment that the legal notion of standing should be abolished. It is unconstitutional because it elevates government rights over people's rights. Abraham Lincoln:

This country, with its institutions, belongs to the people who inhabit it. Whenever they shall grow weary of the existing government, they can exercise their constitutional right of amending it, or their revolutionary right to dismember or overthrow it.

The idea of restricting standing is to limit legal action to those who can demonstrate they have been harmed. But does not the enervation of democracy harm us all? How can the people together, and thus each of us, not have the power to challenge our government's actions, especially on constitutional grounds?

Amendment 10

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

We hear much more about this Amendment, sometimes called the States' Rights Amendment, than we do the Ninth, even though both attempt to make plain that the people hold ultimate power and unenumerated rights beyond this specifically included in the Constitution.

The constitution says that states have rights reserved unto them, but the federal government, usually abetted by the federal courts, encroaches on the legitimate rights of states in everything from abortion to drug use. Whatever one might think of the merits of the divergent legal and philosophical arguments made for and against various social issues, the fact is that the federal government's expansive view of the Constitution's Commerce clause appears to further aggrandize central power at the expense of state, local, and individual control.

A False Sense of Security

It is foolish to think there is more than the barest sliver of daylight between Democratic and Republican positions on upholding the Bill of Rights. Obama has been no better than Bush, but has instead largely solidified and helped make bipartisan the execrable assaults on civil rights that Bush initiated.

This curtailment of individual rights has closely paralleled the alarming elevation of corporate rights, of which the reprehensible Citizens United decision is the leading grotesquerie. The influence of money is destroying our democracy, and the thin end of its spear is the vitiation of the rights of the people to live, be free, be happy, and to successfully demand transparency and accountability from their government.

It is equally foolish to think one's rights are protected because of one's American citizenship. Many of the insults to the Bill of Rights recognize no citizenship exception, and, in any event, Congress is moving to formally allow the President to strip Americans of their citizenship, after which the full gamut of extra-judicial options would presumably be available without quaint legal objection. If you're a threat, or even a sufficiently annoying inconvenience, then off to the gulag with you.

Finally, the generalized sense that dissent is a time-honored American strength is under deliberate attack. Infiltration and provocation of protest groups is part of standard policing policy, and dissent can now be explicitly be recast as terrorism.

Conclusion

It is nearly impossible to view what has happened to our most fundamental civil liberties as anything other than a naked power grab by financial and governmental elites. The two "major" parties have engaged in what can only be called a Long Con—the creation of faux conflicts and political sideshows while the real policy, non-partisan, and funded by corporations and the 1%, harnesses the security apparatus of the state in service of moneyed interests to further entrench their incumbency.

The elevation of corporate "rights" over those of actual people is the economic and political Swiss army knife of the American financial and political elite, the 1%. Today is the second anniversary of the rebarbative Citizens United ruling. Black crepe would be the right decoration, but skip celebration and go straight to activism.

We commonly like to believe in American exceptionalism, that we are the greatest country on earth, and are so in large part by our example as a bastion of freedom and liberty. Sadly, the recent arc of activity in all three branches of our government makes us more like despotic regimes we regularly assail—China, Pakistan, Syria, Saudi Arabia and others. Are we still the land of the free?

Thomas Jefferson said that "dissent is the highest form of patriotism" yet we are being relentlessly conditioned to not question authority. We are denied standing to do so by the courts because, in part, it is allegedly unpatriotic. To protest the actions of government is now routinely disparaged as unpatriotic, notwithstanding the wise words of Teddy Roosevelt:

Patriotism means to stand by the country. It does not mean to stand by the president or any other public official save exactly to the degree in which he himself stands by the country. It is patriotic to support him insofar as he efficiently serves the country. It is unpatriotic not to oppose him to the exact extent that by inefficiency or otherwise he fails in his duty to stand by the country.

It is a duplicitous and manipulative appeal that asks us to suffer the steady erosion of our civil rights out of some obsequious patriotism, especially one that justifies it by claiming exigent circumstance. After all such appeals have been used before:

Why of course the people don’t want war … But after all it is the leaders of the country who determine the policy, and it is always a simple matter to drag the people along, whether it is a democracy, or a fascist dictatorship, or a parliament, or a communist dictatorship … Voice or no voice, the people can always be brought to the bidding of the leaders. That is easy. All you have to do is to tell them they are being attacked, and denounce the pacifists for lack of patriotism and exposing the country to danger. It works the same in any country.

The speaker was the Nazi Hermann Goering, and we all know how the triumph of that kind of thinking turned out.