The Post-Constitutional Era…


cActivist Lauren DiGioia is arrested Jan. 3, 2012, during a demonstration in New York City’s Grand Central Station held to call attention to the National Defense Authorization Act, signed by President Barack Obama on the previous New Year’s Eve. (AP/Mary Altaffer)

From Chris Hedges

The U.S. Supreme Court decision to refuse to hear our case concerning Section 1021(b)(2) of the National Defense Authorization Act (NDAA), which permits the military to seize U.S. citizens and hold them indefinitely in military detention centers without due process, means that this provision will continue to be law. It means the nation has entered a post-constitutional era. It means that extraordinary rendition of U.S. citizens on U.S. soil by our government is legal. It means that the courts, like the legislative and executive branches of government, exclusively serve corporate power—one of the core definitions of fascism. It means that the internal mechanisms of state are so corrupted and subservient to corporate power that there is no hope of reform or protection for citizens under our most basic constitutional rights. It means that the consent of the governed—a poll by OpenCongress.com showed that this provision had a 98 percent disapproval rating—is a cruel joke. And it means that if we do not rapidly build militant mass movements to overthrow corporate tyranny, including breaking the back of the two-party duopoly that is the mask of corporate power, we will lose our liberty.

“In declining to hear the case Hedges v. Obama and declining to review the NDAA, the Supreme Court has turned its back on precedent dating back to the Civil War era that holds that the military cannot police the streets of America,” said attorney Carl Mayer, who along with Bruce Afran devoted countless unpaid hours to the suit. “This is a major blow to civil liberties. It gives the green light to the military to detain people without trial or counsel in military installations, including secret installations abroad. There is little left of judicial review of presidential action during wartime.”

Afran, Mayer and I brought the case to the U.S. Southern District Court of New York in January 2012. I was later joined by co-plaintiffs Noam Chomsky, Daniel Ellsberg, journalist Alexa O’Brien, RevolutionTruth founder Tangerine Bolen, Icelandic parliamentarian Birgitta Jonsdottir and Occupy London activist Kai Wargalla.

Later in 2012 U.S. District Judge Katherine B. Forrest declared Section 1021(b)(2) unconstitutional. The Obama administration not only appealed—we expected it to appeal—but demanded that the law be immediately put back into effect until the appeal was heard. Forrest, displaying the same judicial courage she showed with her ruling, refused to do this.

The government swiftly went to the U.S. Court of Appeals for the 2nd Circuit. It asked, in the name of national security, that the court stay the district court’s injunction until the government’s appeal could be heard. The 2nd Circuit agreed. The law went back on the books. My lawyers and I surmised that this was because the administration was already using the law to detain U.S. citizens in black sites, most likely dual citizens with roots in countries such as Pakistan, Afghanistan, Somalia and Yemen. The administration would have been in contempt of court if Forrest’s ruling was allowed to stand while the federal authorities detained U.S. citizens under the statute. Government attorneys, when asked by Judge Forrest, refused to say whether or not the government was already using the law, buttressing our suspicion that it was in use.

The 2nd Circuit overturned Forrest’s ruling last July in a decision that did not force it to rule on the actual constitutionality of Section 1021(b)(2). It cited the Supreme Court ruling in Clapper v. Amnesty International, another case in which I was one of the plaintiffs, to say that I had no standing, or right, to bring the NDAA case to court. Clapper v. Amnesty International challenged the secret wiretapping of U.S. citizens under the FISA Amendments Act of 2008. The Supreme Court had ruled in Clapper that our concern about government surveillance was “speculation.” It said we were required to prove to the court that the FISA Act would be used to monitor those we interviewed. The court knew, of course, that the government does not disclose whom it is monitoring. It knew we could never offer proof. The leaks by Edward Snowden, which came out after the Supreme Court ruling, showed that the government was monitoring us all, along with those we interviewed. The 2nd Circuit used the spurious Supreme Court ruling to make its own spurious ruling. It said that because we could not show that the indefinite-detention law was about to be used against us, just as we could not prove government monitoring of our communications, we could not challenge the law. It was a dirty game of judicial avoidance on two egregious violations of the Constitution.

In refusing to hear our lawsuit the courts have overturned nearly 150 years of case law that repeatedly holds that the military has no jurisdiction over civilians. Now, a U.S. citizen charged by the government with “substantially supporting” al-Qaida, the Taliban or those in the nebulous category of “associated forces”—some of the language of Section 1021(b)(2)—is lawfully subject to extraordinary rendition on U.S. soil. And those seized and placed in military jails can be kept there until “the end of hostilities.”

Judge Forrest, in her 112-page ruling against the section, noted that under this provision of the NDAA whole categories of Americans could be subject to seizure by the military. These might include Muslims, activists, Black Bloc members and any other Americans labeled as domestic terrorists by the state. Forrest wrote that Section 1021(b)(2) echoed the 1944 Supreme Court ruling in Korematsu v. United States, which supported the government’s use of the military to detain 110,00 Japanese-Americans in internment camps without due process during World War II.

Of the refusal to hear our lawsuit, Afran said, “The Supreme Court has left in place a statute that furthers erodes basic respect for constitutional liberties, that weakens free speech and will chill the willingness of Americans to exercise their 1st Amendment rights, already in severe decline in this country.”

The goals of corporate capitalism are increasingly indistinguishable from the goals of the state. The political and economic systems are subservient to corporate profit. Debate between conventional liberals and conservatives has been replaced by empty political theater and spectacle. Corporations, no matter which politicians are in office, loot the Treasury, escape taxation, push down wages, break unions, dismantle civil society, gut regulation and legal oversight, control information, prosecute endless war and dismantle public institutions and programs that include schools, welfare and Social Security. And elected officials, enriched through our form of legalized corporate bribery, have no intention of halting the process.

The government, by ignoring the rights and needs of ordinary citizens, is jeopardizing its legitimacy. This is dangerous. When a citizenry no longer feels that it can find justice within the organs of power, when it feels that the organs of power are the enemies of freedom and economic advancement, it makes war on those organs. Those of us who are condemned as radicals, idealists and dreamers call for basic reforms that, if enacted, will make peaceful reform possible. But corporate capitalists, now unchecked by state power and dismissive of the popular will, do not see the fires they are igniting. The Supreme Court ruling on our challenge is one more signpost on the road to dystopia.

It is capitalism, not government, that is the problem. The fusion of corporate and state power means that government is broken. It is little more than a protection racket for Wall Street. And it is our job to wrest government back. This will come only through the building of mass movements.

“It is futile to be ‘anti-Fascist’ while attempting to preserve capitalism,” George Orwell wrote. “Fascism after all is only a development of capitalism, and the mildest democracy, so-called, is liable to turn into Fascism.”

Our corporate masters will not of their own volition curb their appetite for profits. Human misery and the deadly assault on the ecosystem are good for business. These masters have set in place laws that, when we rise up—and they expect us to rise up—will permit the state to herd us like sheep into military detention camps. Section 1021(b)(2) is but one piece of the legal tyranny now in place to ensure total corporate control. The corporate state also oversees the most pervasive security and surveillance apparatus in human history. It can order the assassination of U.S. citizens. It has abolished habeas corpus. It uses secret evidence to imprison dissidents, such as the Palestinian academic Mazen Al-Najjar. It employs the Espionage Act to criminalize those who expose abuses of power. A ruling elite that accrues for itself this kind of total power, history has shown, eventually uses it.
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U.S. has legal “Constitution-Free” Zones 100 miles inland of all waterways; 80% of U.S. population live within 100 miles of coastlines.

http://www.foxnews.com/politics/2014/01/13/constitution-free-zones-controversial-obama-administration-policy/

A federal judge who endorsed “suspicion-less” searches of laptops, cameras and cell phones at the border has set up a possible Supreme Court showdown challenging what critics call “Constitution-free zones” and the Obama administration’s dragnet approach to national security.

A decision by Judge Edward Korman upholding the federal government’s right to search travelers’ electronic devices at or near the border conflicts with a similar ruling in California. That ruling requires a “reasonable suspicion” of criminal activity before agents can confiscate and examine personal photos, laptops and files. Korman’s ruling does not.

“I think Americans are justifiably becoming increasingly surprised and even outraged by the extent to which the national security state seems to be monitoring and collecting information about us all,” said ACLU Attorney Catherine Crump. “We think that having a purely suspicion-less policy is wrong, because it leaves border agents with no standards at all to follow. That opens the door that people will be [targeted] for inappropriate reasons.”

The ACLU originally challenged the administration’s policy, which can be applied anywhere within 100 miles of the border, after U.S. Customs agents stopped student Pascal Abidor on a train traveling from Canada to New York. After noticing Abidor had two passports — not uncommon for journalists and those with dual citizenship — agents asked to see his laptop. Since Abidor was a student of Middle Eastern affairs, his computer contained photos of political rallies held by Hamas and Hezbollah, known terrorist groups.

“I explained to the immigration officer that the reason I had these photos was this was my research,” said Abidor, a U.S. citizen. “I determined they looked at my personal photos and personal chats with my girlfriend. I knew I needed help.”

The ACLU sued, claiming the broad expansion of search powers under President Obama posed a danger to the lives of ordinary Americans — especially since the administration claims it has the right to inspect items not just at ports of entry, but checkpoints hundreds of miles away. The ACLU calls these “Constitution-free zones.”

Now is the time to flee abroad for those citizens who can. The next step is to set thugs on the moral folks to intimidate the rest into submission. Ukraine here we come.

ybera

At least as frightening as these many twisted new laws and regulations are, is the great surplus of our fellow citizens apparently all too eager to take employment enforcing and even overstepping them. And next in line are those blind to such developments, although that does seem to be changing lately, albeit too late now.

Things in the Land of the Free are heading south fast, along with those lucky enough to be able to afford to get the hell out.

Reverend Niemöller’s protestation of the Nazi’s crimes comes to mind.

Here is the version displayed in the DC Holocaust Museum from Wiki.

First they came for the Socialists, and I did not speak out– Because I was not a Socialist.
Then they came for the Trade Unionists, and I did not speak out– Because I was not a Trade Unionist.
Then they came for the Jews, and I did not speak out– Because I was not a Jew.
Then they came for me–and there was no one left to speak for me.

“Niemöller created multiple versions of the text during his career. The earliest speeches, written in 1946, list the Communists, incurable patients, Jews or Jehovah’s Witnesses, and civilians in countries occupied by Nazi Germany.” (Wiki).

We’ll, have we dealt cruelly with Communist and socialist, the trade unions are toast, Muslim’s are being pursued, and folks that are mistaken for Muslim, beaten and killed. And, in our historical context we should mention independent journalist in the list. They will be coming for the rest of us and there will be no one left to speak for us.

ybera

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