Wednesday, July 4, 2012

Why Constitutional Rights Don't Exist

Four Acts of Government that Prove the “Bill of Rights” Doesn't Mean Anything

Ah, the 4th of July; that wonderful holiday were we celebrate freedom, liberty, independence and a whole bunch of other abstract ideas that 300 million people couldn’t possibly come to a consensus definition upon by doing what Americans do best - eating large quantities of food and spending outrageous sums of money on things just so we can watch them explode a little later on in the evening.

For the most part, I enjoy the 4th of July, because it’s arguably the least subtle thing that has ever been invented. While a lot of countries do a fantastic job of being jingoistic and nationalistic, I don’t think any country on earth does it as spectacularly as the United States. Our parades and celebrations are just so over-the-top and grandiose, a notion made a gajillion times weirder because of the comically absurd amount of patriotic splendor dripping out of every man, woman, child, dog, street corner and media outlet come the first week of July. It’s not so much that people are celebrating their nation as they are trying to display the most fanatical devotion to a certain set of symbols in front of their neighbors - it’s as if people are trying to overcompensate for a lack of perceived patriotism the other 51 weeks of the year, so they have to go all out on the 4th or their contemporaries will think they’re communists or something.

But, outside of all of that hilariously tragic nationalism, I’m still a fan of the holiday. And I still think that, America, for all its faults and foibles, is still a pretty great place to live in. Sure, we have a gargantuan wealth inequity problem (with about a third of the country hovering just above the poverty line), and our legal system is still subject to a few, uh, abnormalities, regarding criminal sentencing, and we may or may not have a major problem regarding the prevalence of firearm-related homicides in the country, but you know what? All of that stuff is worth it, because we have something that very, very few nations have: constitutionally-protected rights that are truly and completely respected by our governing bodies.

Well, for the most part. Yes, yes, we all know about “due process” and “separation of church and state” and all that jazz, but the reality is, our legal freedom is nowhere near as “legal” nor “free” as we may think it is. So, if you sell dildos in Alabama, or draw a violent comic book in Florida, or partake of a boycott of Israeli products, not only are you not protected by the U.S. Constitution…you’re actually guilty of several felonies as a result.

A lot of people like to go on about how great the U.S. Constitution is, but the reality is, it’s just a crinkled up sheet of paper with nothing more than symbolic power. You could argue that our constitutional rights are actually endowed to us by the Supreme Court, as their ability to dictate what the Constitution means is really the closest thing we have to expansive, guaranteed civil right protection in the nation. In that, our guaranteed individual rights are pretty much contingent on the moods of just nine people, and needless to say, they have made some, well, rather dubious calls in the past. I mean, some very, very dubious onesJesus people, you seriously have no idea how dubious I’m talking here

That said, even the Supreme Court can’t really prevent members of the executive or legislative branch from coming up with, passing and enforcing laws and mandates that ignore pretty much everything the Constitution says. Despite our perpetual praise of the “Bill of Rights,” the United States government has enacted numerous programs and policies over the last 60 years that utterly shit on our notions of constitutional rights, and what do you know? There’s really nothing anybody can do about it.

So, what kind of legislation and programs am I talking about here? Well, here are just four examples in recent U.S. history of the government deciding the Constitution just doesn’t count in certain aspects and scenarios…

The McCarran Act (1950)

Pat McCarran: the man that made the "blacklist" cool again. 

In the 1950s, there was this thing called “the Cold War.” At that point in time, two superpowers - capital-loving America and commune-loving Russia - were vying for global influence. Many politicians in the U.S. were very paranoid, and suspected that a number of rogue Commie agents had infiltrated the U.S. government. They also suspected that there was a monolithic communist movement going on, and it was only a matter of time until all of those godless reds got together and tried to overthrow the nation.

Pat McCarran, a Nevada Democrat, was one such politician. Fueled by anti-communist sentiment, McCarran and his buddies in Congress drew up a piece of legislation called the Internal Security Act of 1950 - alternately known as the Subversive Activities Control Act and simply the McCarran Act - which ended up overcoming a veto from Harry Truman, who called it, among other things “a mockery of the Bill of Rights” and “a long step towards totalitarianism.”

So, what did the McCarran Act do, exactly? Well, for one, it forced all communists in the U.S. to register with the U.S. Attorney General, you know, just in case things get a little fishy. Secondly, it created the Subversive Activities Control Board, which was allowed to investigate anybody accused or suspected of un-American activities. Oh, and if you were a member of these groups, or even suspected of being involved with such a group, not only were you prevented from applying for citizenship, you could actually have your citizenship revoked…even if you were born right here, in the good old U.S. of A. And if that’s not enough, the bill also contained  a section called the “Emergency Detention” statute, which gave the President the ability to arrest and detain "each person as to whom there is a reasonable ground to believe that such personal probably will engage in, or probably will conspire with others to engage in, acts of espionage or sabotage.”

While large chunks of the law were overturned following the Non-Detention Act of 1971, many implications of the McCarran Act are still applicable today, specifically in regards to military intelligence. In fact, two major, high profile espionage cases in recent years involved charges stemming from the McCarran Act - a Cold War relic that, obviously, still has influence on national security legislation to this day.

COINTELPRO (1956-1971)

A document showing how the FBI utilized tactics to eliminate political dissidents.

What do Muhammad Ali, Abbie Hoffman, John Lennon, Malcolm X, Martin Luther King, Jr., and Elijah Muhammad have in common? If you said they were all countercultural icons of the 1950s and 1960s, you’d be right. And if you said they were all targets of a vast,  super-illegal FBI conspiracy to destabilize political and social movements during the Civil Rights era…well, you’d also be correct.

COINTELPRO, an awkward acronym of sorts for its official namesake, The Counter Intelligence Program, was a series of FBI orchestrated “investigations” that sought to  "expose, disrupt, misdirect, discredit, or otherwise neutralize" political dissidents; a policy that included, among other things, feeding the media false information about movement leaders, illegally searching and imprisoning individuals of interest and, in some instances, even authorized assassinations.

Odds are, if you were part of any minority political or social group from the late 1950s to the early 1970s - whether you were in the NAACP, the Black Panthers, the American Indian Movement, the John Birch Society, the Klan or even the National Lawyers Guild - the FBI had a dossier on you. According to the Church Committee Report, COINTELPRO-like operations had been commonplace since the First Red Scare of the late 1910s - and had a group of pissed off activists not snuck into a Pennsylvania office in the early ‘70s and mailed some incriminating reports to the media, who knows who much longer the “official” program would have continued.

Clearly, the COINTELPRO operations were a blatant violation of the First Amendment, with FBI field instructions actually listing things like “restrict the ability to organize protests”  and “restrict the ability of individuals to participate in group activities” as project goals. For those of you that like to champion the United States as a bastion for individual freedom  and expression - this is something you MIGHT just want to take a look at.

REX 84 (1984)

This man wants to take you camping (right after he finishes shredding all those pesky documents, of course.)

In 1984, Ollie North and some representatives of FEMA got together for a “State of Domestic National Emergency” drill, called Readiness Exercise 84 (or Rex 84, for short.) Drills of the like, obviously, aren’t too uncommon. What makes Rex 84 so interesting is that it was a drill that simulated a “national security” disaster - one in which the U.S. Constitution gets suspended, martial law is declared, military personnel overtake state governments and huge, huge populations of American citizens are arrested.

According to plans supposedly penned by North himself, Rex 84 was something of a trial run in case there was widespread civil unrest in the U.S.  following an unpopular military action. Oh, and it was (allegedly) patterned after a similar plan mapped out in the 1970s by the then-head of FEMA, who suggested that there may come a time when, just maybe, we’ll have to detain 21 million black people in the name of “civil security.”

While Rex 84 was “just” a training exercise, it has legislative muscle due to something called “The Department of Defense Civil Disturbance Plan,” which is essentially a blueprint for martial law orders pending a very ill-defined period of “national crisis.” Alternately referred to as the “Garden Plot,” the plan is currently under the stewardship of  the United States Northern Command - a Unified Combatant Command created after 9/11, which is tasked with conducting “operations to deter, prevent, and defeat threats and aggression aimed at the United States, its territories, and interests.”

Obviously, “Rex 84” has lead to a barrage of conspiracy theories, with some folks saying that it proved that FEMA is nothing more than a cover for a Continuity-of-Government [COG] directive and others saying that the program, effectively, created a system of top-secret “concentration camps” in the United States. An intriguing project, to be sure, but it’s most certainly anything but the latest example of the U.S. government authorizing massive, far-reaching [COG] initiatives…

Executive Directive 51 (2007)

"So to uphold the Constitution, we sometimes have to do things that are against the Constitution. Like having one. At all." 

On May 4, 2007 President George W. Bush signed a Presidential Directive called “National Security Presidential Directive NSPD 51/Homeland Security Presidential Directive HSPD-20” - an order usually referenced as “Executive Directive 51.” It was one of many such directives issued by Bush in the wake of 9/11, and most media outlets totally ignored it as a result.

“Executive Directive 51,” in essence, gives the federal government - most explicitly, a subset of the executive branch - the self-ordained ability to restructure a “continuous government” in the aftermath of a “catastrophic emergency,” defined in the order as "any incident, regardless of location, that results in extraordinary levels of mass casualties, damage, or disruption severely affecting the U.S. population, infrastructure, environment, economy, or government functions."

Bush’s directive, out of literally thin air, created a hypothetical “Enduring Constitutional Government” - effectively, a federal government where the executive, judicial and legislative branches are all subordinate to the President and his cabinet. For all intents and purposes, the order gives the President the ability to circumvent virtually every fiber of the Constitution, making the Commander-in-Chief, in every sense of the word, the nation’s dictator.

Especially interesting is a portion of the directive listing the domain of the Executive Office’s conjectural power. I have included the passage, in its entirety, below:

A rather verbose passage to be sure, but once you translate the politispeak into actual English, the absolutely staggering scope of “Executive Directive 51” presents itself fully, with decrees that not only eliminate the idea of private property (sections c through e), but eliminate the idea of individual liberty altogether - the last two provisions, in essence, say that in times of “national catastrophe,” the interim government has the ability to move you around - and force you into labor or detention - if need be. 

While the incredibly vague definition of what constitutes a “national emergency” makes the order a very powerful document, perhaps it is what the document doesn’t say that makes “Executive Directive 51” such a potentially dangerous document - while it (albeit, poorly) defines what a national emergency is, it says virtually nothing about what occurs once that hypothetical emergency “ends,” or even how the nation is to transfer from an “emergency government” back to a “constitutional one.” Then again, that probably shouldn’t be a surprise - after all, W. was never really one to draw up blueprints for an exit strategy of any kind, was he?

So, later on today, when you're eating your hot dogs and drinking your soda and watching your second cousin blow his thumbs off with M-80s, just remember - we're all so fortunate to live in a land this free.


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