On June 7, 1776, Richard Henry Lee, a delegate to the Second Continental Congress, proffered a resolution declaring:
“That these United Colonies are, and of right ought to be, free and independent States, that they are absolved from all allegiance to the British Crown, and that all political connection between them and the State of Great Britain is, and ought to be, totally dissolved.”
It was the beginning of the first act of the American Revolution. The second and third acts – the long continental incubation and the emergence of the US as a world empire – would not be long in coming, as such things are measured. The seeds planted in Britain’s North American colonies were a vigorous stock, rooting quickly and sending forth leaves and runners in riotous profusion. The process culminated in a blossom such as the world had never seen.
The Founders of this country established a republic of a new type: one that strictly limited the power of government to seize one’s person or property. This right of self-ownership was defended by an innovative device: the Constitution of the United States, and specifically the first ten amendments. These explicitly forbade the seizure of person and property without due process of law by the government and encoded “the right of the people to be secure in their persons, houses, papers, and effects” in the DNA of the embryonic nation.
These provisions suffered almost continual assault from the time they were enacted: the imposition of the Alien and Sedition Acts, Lincoln’s depredations during the Civil War, the Brown Scare of the 1930s and the Red Scare of the 1950s – all wreaked their havoc, denting and often piercing the shield of the Constitution, although never wounding the republic at its heart. Every successful incursion on the inner fortress of the Bill of Rights was followed by a swift political counterattack, and eventually pushed back.
Not this time, however.
The recently passed National Defense Authorization Act (NDAA) empowers the President to detain “terror suspects” indefinitely, without benefit of a court of law, and without even making this lawless act public. This is the very definition of tyranny, and if allowed to stand would indeed murder what is left of our old republic in its sickbed.
That the vision of the Founders has not yet permanently faded is reflected in the decision of Judge Katherine Forest to declare the law unconstitutional: that the enemies of liberty are tireless is underscored by the Obama administration’scontention that the judge’s decision only means they won’t be able to detain the individuals who brought the lawsuit. So Daniel Ellsberg and Noam Chomsky are safe: the rest of us, not so much..,.
The “Homeland battlefield” portions of the NDAA, which have been struck down by the court, are not specifically aimed at members of Al Qaeda, or allied groups, and this lack of specificity is what drove the judge’s decision. Government lawyers argue that the President, in his role as commander-in-chief of the armed forces, must be free to act on the battlefield “in wartime” – and that, in our eternal “war on terrorism,”America is a battlefield.
It’s an argument with some interesting implications. Given that perpetual warfare is the animating principle of American foreign policy in the post-9/11 era, no special circumstances are required before President Obama sends the Koch brothers off to Guantanamo.
Like the Bush administration before it – whose top security officials issued a letterbefore the judge’s decision, arguing that to strike down the “homeland battlefield” provisions would be “unconstitutional” – this liberal White House is committed to the legal doctrine of presidential supremacism, which argues that the chief executive’s role as commander-in-chief trumps all constitutional checks and balances, including the Bill of Rights.
This would have shocked an earlier age, but in the long senescence of our decaying republic hardly anyone can be roused to even a semblance of outrage. Given the stakes, the legal and political battle over this fateful legislation is getting almost no attention: certainly it will never be an issue in the presidential election, and the media coverage is perfunctory, with stories relegated to the back pages. Particularly worrying is the political fight over efforts to amend the offending portions of the NDAA, led by Reps. Adam Smith, a Democrat, and Justin Amash, a Republican of the Paulian persuasion. Their amendment was smashed in the House, 238 to 182, with the leadership of both parties uniting behind the drive to crush the Constitution underfoot.
Americans stupidly believe none of this applies to them: it’s all about detaining foreigners, and “terrorists,” and is therefore okay. No President would use the provisions of the law to target and detain American political dissidents – would he?
The average American’s ignorance of basic history is so scant that they don’t realize there is ample precedent. If you ask them what they know about the Alien and Sedition Acts, you’re apt to get a blank look. As for Abraham Lincoln shutting down newspapers and imprisoning his political opponents – bringing up such inconvenient facts is heresy as far as the Lincoln cult is concerned. We aren’t supposed to talk about it, or, if we do, we’re only allowed to say something vague about how it was necessary to free the slaves. The outright repression of political opposition during both worldwars, the extended assault on civil liberties that characterized the cold war era – these less than proud chapters in American history aren’t taught in the schools. If mentioned at all, they’re whitewashed and rationalized away.
Over the years, these partially successful attempts to overthrow the rule of law and invalidate the Constitution have accumulated to the point where a coup is unnecessary. The President needn’t declare martial law and surround Congress with troops, because the people’s representatives have consented to the coup in advance – and are strewing the tyrant’s path with rose petals.
As Congress was rejecting the Smith-Amash amendment, what we were hearing was the death agony of our old republic. The American Revolution stands repealed without a shot being fired. What was required in order to pull it off wasn’t the sight of armed men swarming over Capitol Hill: it took only the greasy evasions of government lawyers and the heavy indifference of the public. The courts are the last recourse of those who seek to salvage the heritage of the Founders: beyond that, there is nothing but the certain prospect of tyranny.
As our drones hunt the world, striking at will, the skies over America will inevitably be darkened. With local law enforcement buying up drones and increasingly using them in routine police operations, we aren’t far from the day when the President can zap his enemies on command. And it will all be perfectly “legal.”
If I were one of the Koch brothers, I’d be worried.
NOTES IN THE MARGIN
I see we’ve finally made our fundraising goal – and I have to say, it’s quite a relief. Now that was a tough one!
I want to thank all our contributors, big and small, who made the success of this drive possible. We’ve labored mightily to serve our readers and supporters, and this is, for us, a vote of confidence, one that we take to heart. I don’t like these fundraisers any more than you do, but they are a necessary condition of our continued survival. There is a way to make them shorter, however, and that is by stretching out your contribution over a number of months: all you have to do is sign up to become a monthly contributor, which you can do by going here. This gives us the kind of reserves we need to tide us over in tough times, and it also gives us a way to rationally plan our budget in advance.
Yes, this was a tough one, but we made it, and for that I am more grateful than I know how to express. I don’t take my readers for granted: every time I sit down to write a column my focus is how best to inform them, energize them, and – yes – simultaneously entertain them, while in the process learning something new myself. I really do enjoy my job, but every once in a while I need a break – and that is what’s on the agenda this coming week.
I’ll be taking next week off: I’ve got a new book to start, and a garden choked with weeds. That should keep me busy for the duration. I’ll be back on Monday, June 25 – maybe sooner, if some new development warrants it.
A final note: go here to hear Jason Ditz debate none other than Richard Perle on BBC radio. The subject: America’s drone war.