As the should-have-been scandal of the administrations illegal wiretapping policy wanes, as our government proceeds to contract out the construction of new, large-scale detention centers (apparently in preparation for a large influx of immigrants…?), as the right of whistle-blowers or dissenters in the administration (and elsewhere) to criticize our government is called into perilous legal question…I find myself more and more concerned with questions of where national (and personal) security ends and personal liberty begins. It seems that this is a question which should be uppermost in the minds of all Americans, as we tread into an age where the potential for extreme government monitoring and control is more technically possible, and apparently more desired, than ever before. And yet I find in casual conversation that very few citizens are concerning themselves with this vital issue. The attitude that the government will make the decisions which will best care for us is pervasive, and the notion that it is every citizen’s obligation to monitor and influence the government is outdated, perhaps treasonous. From it’s inception, however, our nation has been founded on the assumption that informed and active involvement in our government is every citizen’s obligation. The founding documents of our government worked hard to indicate that this was a government designed to be created and maintained by the people. It was not to become a monster controlling and directing the lives of its citizens for its own benefit. Hence the electoral process. Hence the “checks and balances” that we heard so much about in school. Hence the Bill of Rights. We hear much these days about the possibility of things being “unconstitutional”, but does anyone even remember the Constitution?
In the name of trying to revive interest in a crumbling concept, I would like to explain very simply what our government was meant to be and discuss the arguments which the current administration uses to justify its departure from those original ideals. I would like to bring to the notice of the public that this is, as Abraham Lincoln so famously said in 1863, a government of the people, for the people, and by the people, and that such a system depends upon the involvement of those who allow themselves to be governed, if it is not to perish from the earth.
To begin, let’s take a look at what the foundation documents of our governmental system tell us about the form our nation was supposed to take. The Declaration of Independence begins with the statement that all men have inalienable Rights (yes, they capitalized it) to Life, Liberty, and the Pursuit of Happiness. Oh…let’s just quote it:
“That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, –That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it…”
Oh. Um. We’re in trouble already, aren’t we? Well, I guess that really comes later, when we get to the Bill of Rights, but for now, take just a moment and contemplate those words, the first spoken about the intent of the Founding Fathers with regard to what sort of system they would eventually create. Yes, they were pretty angry with England right then, and those words were directed at what they viewed as the tyrannical oppression under which they had suffered, but that does not rob them of their value. Government derives its power from the consent of the governed. Somehow, our government seems to have lost sight of this crucial fact. It cannot carry out acts without our consent. It cannot stand between us, the governed, and our Rights of Life, Liberty, and the Pursuit of Happiness. It does not in fact exist, without our consent. The Declaration goes on to say, “accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed.” Yep, they got that part, too. That most folks will take as much as they can take, for as long as they can take it, rather than get up and try to alter a system already in place. “But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government…” Hmm. Maybe we had better look up “despotism”. There seems to be some confusion about that word, lately…
n 1: dominance through threat of punishment and violence
2: a form of government in which the ruler is an absolute dictator (not restricted by a constitution or laws or opposition etc.)
Ah, so as long as our government is keeping strictly in line with the precepts set out in our constitution, and there is freedom for opposition, we don’t have a despotism. Well, that’s a relief.
So, let’s look at the Constitution.
O.K., the first thing it states is that all laws are made by Congress. Note this. It explains the ways in which these representatives shall be elected, and goes on at great length to explain how these two houses of congress are the ones with the right to impeach the President. It explains the basic process by which laws may be passed and revenue be raised. It provides quite a list of things with which the Congress should concern itself, stuff like collecting taxes, declaring wars, and punishing piracy. It then goes on to explain that people cannot be held in prison without a fair trial, that the congress can’t pass any laws to single out a person or group for punishment without trial, make laws to punish people for doing something that was at the time they did it legal (by making it illegal afterward, and then making the punishment retroactive), and a bit about how they can’t tax exports or favor some ports over others. And it goes on. I should probably mention that it states that the President has to swear, upon being set in office, to uphold the Constitution. That part’s important. It sets up the structure of the judicial system and lays down a few standards as to what the punishments for treason may not entail (i.e. you can’t punish the children of a person who has committed treason, and you can’t take their property or prevent them from inheriting). Oh yeah, and you can’t convict a person of treason unless you have two people witnessing an overt (that is, obvious) act and treason is defined very narrowly as being “levying War against them, or in adhering to their Enemies, giving them Aid and Comfort”. Just to make that clear. And it wraps up with a little bit about the States, how they have to respect the laws and judgements of other states, and how new states can be made, and finally, how amendments can be made.
And now, on to the good stuff: The Bill Of Rights.
We hear a lot these days about this or that Amendment guaranteeing this or that freedom. But, honestly, I don’t think most folks have the slightest idea anymore what rights are actually granted in there, so let’s do a quick run-down (stick with me here, this is important). So here we go, crash-course style:
1. No laws can be made respecting an establishment of religion respecting = “to treat with deferential regard or esteem” or keeping people from practicing their chosen religion or preventing freedom of speech, or of the press or preventing people from peaceably gathering in groups or preventing people from asking the government to make up for injury it has caused.
2. You can have weapons.
3. You cannot be forced to let soldiers live in your house, unless they make a law that says otherwise.
4. They can’t invade your privacy or take your stuff, without a really good reason which they have to present to a court and the court has to agree with enough to write down that it’s o.k.
5. You can’t be tried for breaking the law without a jury, you can’t be tried for the same crime twice, you can’t be forced to say anything that proves you are guilty, and they can’t take your life, freedom, or stuff without proving you committed a crime. Also, they can’t just take your stuff because they need it without paying you for it.
6. If you are accused of breaking the law, you get a trial by jury in a short time, and you get a lawyer.
7. If someone else is suing you for a bunch of money, you still get a jury, and what the jury decides, goes.
8. They cannot set excessively high bail if you are arrested, and they can’t fine you excessive amounts, and they can’t inflict “cruel and unusual punishments”. Sadly, those terms are not well-defined.
9. Just because the Constitution spells out certain rights does not mean that there are no others.
10. If the Constitution hasn’t specifically said the federal government has the power to do something, then that means that the power is given to the state governments or the people.
O.K., that’s the first ten, the ones that were actually put in there at the time that the Constitution was written, and they were included because some of the folks they were hoping would sign off on the Constitution said they wouldn’t unless there was stuff in there guaranteeing the rights of the people. Pretty smart, and I’m sure we’re all glad they’re there. They went on to add a bunch more amendments, and while all of those are important, too (they work to provide more and more freedom for all of us), the first ten are the ones with which we are most concerned here, because they are the ones that were a part of the creation of our governmental structure.
So now, let’s take a look at some of the ways the Constitution has been violated by our current administration, and why they say that’s o.k. Again, we’re going to take this on crash-course style:
1. Holding people in prison without a fair trial, making laws that single out a group for punishment without a fair trial, not giving people speedy trials, not giving people access to a lawyer. Amendment #6, Text of the Constitution.
The Administration justifies this by saying that the folks being held in Guantanamo, and other federally maintained detention centers are “enemy combatants” and therefore fall under special rules which are not included in the Constitution’s dictates. Originally, this label was held to apply only to foreign folks, but that all changed with Jose Padilla in 2002. He was a citizen, captured on American soil, and the President decided he could be an “enemy combatant”, too. As American citizens, one would assume that “enemy combatant” would correlate in some way to “treason”. And yet, they have no access to bail, trial, or lawyer…and most certainly have not had the opportunity to stand in court and have two witnesses detail their overt acts of treason.
This violation of the Constitution also applies to many of our citizens who are being held in jail for extremely long periods of time, their property already confiscated before trial, awaiting the chance to have their day in court.
2. Invasion of privacy. Amendment #4
The most glaring and obvious example of this is the illegal wiretapping program authorized by President Bush and his administration. Yes, I did say illegal, the debate over the legality of this program is a farce. The FISA act of 1978 was very clear in it’s explanation that it was the end-all be-all declaration on laws governing wiretapping surveillance. Legal precedent has clearly demonstrated that in a case of two laws possibly conflicting, the governing law shall be the more specific one. FISA is obviously more specific than Public Law 107-40, the Authorization to Use Military Force (AUMF), which authorizes the President to use “all necessary and appropriate force against those nations, organizations or persons he determines planned, authorized, committed, or aided the terrorist acts that occurred on September 11, 2001…” Wiretapping is not “force”, by anybody’s definition. It’s surveillance, which falls under FISA. FISA was created (and Nixon had to step down from office) over this very issue. The President does not have the right to wiretap without a warrant, just because he’s the President. The program was illegal, and a violation of the fourth amendment, and (just mentioning it) an impeachable offense. There are plenty of other fourth amendment violations out there, but this one really takes the cake.
3. Preventing freedom of speech, and of the press. Amendment #1
Anyone out there heard of the “Free Speech Zones”? In case you missed this, a Free Speech Zone is a fenced off area, up to half a mile from somewhere President Bush may be speaking, where citizens who disagree with him are sequestered until he leaves. He doesn’t see them, they don’t see him, and the media isn’t allowed in to talk to them. If you try to hold up a protest sign anywhere outside the Free Speech Zone, you are arrested. One guy, Brett Bursey, was arrested for just such an act. He refused to take his protest sign to the designated Free Speech Zone half a mile a way from a fundraiser at which President Bush was speaking in Columbia, S.C. He was arrested for trespassing, and when those charges were dropped (South Carolina does not allow prosecution for trespassing on public property) a federal prosecutor jumped in to charge him with breaking another law: the Threats to the President statute. Bursey’s arguments that the area in which he was standing was not clearly laid out according to the requirements of the law (it would’ve had to be clearly defined, and with a single entrance point), and that other folks (pro-Bush demonstrators) were also inside the space did not get him off the hook. He was convicted. Law enforcement officials were thrilled, saying “If Bursey’s prosecution holds, we have another dozen cases” across the country. The administration says such acts are necessary to protect the President (and other government officials) from terrorists, and to protect the protesters (just the anti-Bush ones) from hurting themselves by running in front of a car, or something. No, really. I guess the assumption here is that if you are stupid enough to oppose the administration, you’re dumb enough to not know that cars kill…
4. Inflicting “cruel and unusual punishment”. Amendment #8
Again, by using the term “enemy combatants”, the administration releases itself from this requirement. The torture that has gone on at various American bases (notably, Abu Gharib), along with various statements and memos by high-ranking officials clearly demonstrate a disregard for this amendment. In 2002 the President issued a statement declaring that the Geneva Convention (a United Nations bill which is all about how people should be treated during times of war, and which talks a bunch about how you can’t torture people…the United States signed it back in 1949 and it’s considered a really important document by most countries) doesn’t apply to prisoners from the Afghanistan conflict. Later on that year, there was the famous “terror memo” to Alberto Gonzales (White House counsel) from the Justice Department saying that we could get away with torture to a large extent, as long as it didn’t cross some rather extreme guidelines, like being equivalent in pain to organ failure, and that psychological torture didn’t count unless it went on for months or years. And then it wrapped up with saying that the President had the Constitutional authority to order interrogations…and after everything else that was said in there it’s not a far leap to assume that they meant he could authorize what most of us would think of as torture. In 2003 the Defense Department issued its own guidelines which said much more explicitly that sometimes torturing al Qaeda members and other “terrorist leaders” was really all right, seeing as it’s all to protect us from more terrorist attacks, and went on to much more clearly state that holding to anti-torture legislation wasn’t necessary for the President. He can authorize torture whenever he wants to. Now the administration has done a lot of dancing around on this issue, ducking behind the “enemy combatants” phrase and claiming that of course it would never use torture anyone who was an American, and it wouldn’t torture anyone, anyway. The incident at Abu Gharib was clearly an exception. Except that the reports of abuse keep coming in, and The United States has now been condemned by the United Nations for its human rights abuses and we keep right on truckin’.
Awful, sure, but how does all this fit in with the Constitution? There are laws in place to prevent our government and its operatives from torturing people. The president is not above the law, despite what his administration wants to claim. This fact is even supported by a Supreme Court decision: Youngstown Steel and Tube Co v. Sawyer in 1952. Further, while I have had trouble finding the exact laws governing how our Constitutional Rights should be applied to foreigners (please email me if you know where they are), it becomes irrelevant when American citizens can be labeled “enemy combatants”. Once that decision was made, the Constitution was violated.
This is the tip of the iceberg, my friends. But it’s enough to illustrate a significant violation of the Constitution, which the President is sworn to uphold. That’s grounds for impeachment, instructions for which can be found in that document, itself. I want to make clear, however, that I don’t believe the President is the sole problem with our government at this time. The Legislative Branch has played along, given away its power, refused to stand up to the abuses of the Administrative Branch. The Judicial Branch, which should be a bastion of strength protecting the Constitution, has instead aided and abetted its slow and painful (even torturous) death. The checks and balances that were supposed to keep a large government from abusing its citizens have been abandoned. And it is up to the people to do something about it. The government cannot do this without our consent. It does not exist without our cooperation.
So what is to be done? Well, demanding that the President be impeached would be a start, a wake-up call. Remember, “impeachment” does not mean he’s out of office. It just means he has to stand there and explain his misdeeds. Further, Congress needs to take back its power, instead of “offering suggestions” to the Administrative Branch. The Judicial Branch needs to re-read our most precious document and remember that its primary job is interpreting laws by the letter of the Constitution.
And we the people? We need to accept our responsibility. Get informed. Read the laws, pay attention to the proposals. Write your congressmen, the President, everybody who is involved. Threaten them with the fact that you won’t vote for them next time if they don’t step in line…and then get out there and demand that the voting machines be set up in a way which makes them reliable. Volunteer on election day to oversee those machines. Make a big deal about it in the papers if you see anything sketchy. Go protest, even if they won’t let you near the people who need to see you…and take pictures and put them up on the internet. If you like group activities, go get involved with a group that unites people so that they can work together to make change. But most of all, Stop Being Afraid. Look around…there’s not a terrorist lurking outside your window. But someone from our government might be.