Wednesday, September 12, 2007

The Shape of the Beast

Until recently, as every Civics student knows, the US government was a three-branch system. According to our beloved Constitution, it still is-but in the world of practical reality, our system has been slowly dismantled over time, as Presidents from both parties have strove to amass more power for the Executive Branch, and as the others, particularly the Congress, have ceded their authority to the Executive.
Let's examine this, shall we? Starting with some rather interesting aspects of the Patriot Act:

Sec. 106...give[s] to the President…the power to confiscate and vest in the United States the property of enemies of the United States during times of national emergency...The new provision permits the confiscate property of any foreign country, person, or organization involved in hostilities or attacks on the United States. This section also permits courts…to consider classified evidence.

But wait a minute...doesn't the Fourteenth Amendment say something about that?

14th Amendment, Section1: "...nor shall any State deprive any person of life, liberty, or property, without due process of law...

"Classifed evidence"? Obviously, the "right to confront one's accusers", also mandated under the Constitution, has seen better days.

There are three conclusions one can infer from this: being declared an enemy of the State by the President constitutes"due process of law"; the 14th Amendment has been repealed; or the US is not a "State". Choose your poison.

It has long been a hallmark of American jurisprudence that it is better to err on the side of caution, as stated in the long-standing dictum of famed English jurist William Blackstone, "Better that ten guilty persons escape than that one innocent suffer," that has been drilled into law students in the US for more than two centuries. One expression of this has been the use of limited access to information, in that a department of the government with legal access, i.e. warranted access to information, can only share this information with departments so authorized. The clearest example of this is the historic relationship between the CIA and the FBI. The CIA is (was) legally prohibited from running operations inside the US, or sharing information about US citizens it might have obtained by extra-legal means with domestic law enforcement. This seems, to me, eminently reasonable: if one is concerned with the civil liberties of the US population, one must legally enjoin a criminal intelligence agency from turning its weapons on the citizens it is supposed to protect.

Now wait a minute, you say. A criminal intelligence Agency? Isn't that a bit strong?

News flash for you. Covert ops contrary to law is what the CIA is for. If you doubt this, I will refer you to former counterterrorism chief Richard Clarke, in his book Against All Enemies, recalling an incident in the White House during the Clinton Administration. The White House had intelligence on the location of Osama bin Laden, and the decision was being undertaken as to whether to attempt to kill him. Late to the meeting, Vice President Al Gore was hurriedly advised that an attempt was feasible, but contrary to international law. Gore's response? "Of course it's against international law-that's why it's covert!"
So this is definitely not an agency a freedom-loving person wants operating inside the US, right?

Sec. 203. Authority to share criminal investigative information …to authorize disclosure of foreign intelligence information obtained by such interception…to any Federal law enforcement, intelligence, national security, national defense, protective or immigration personnel...

According to your Patriot Act, then, all US foreign-intelligence agencies-not just the CIA, but the DIA, the NSA, CIFA, and who knows how many others-can share any and all info they may collect with any and all domestic law enforcement. Speaking of CIFA, what do we know?
From the Washington Post:

CIFA is a three-year-old agency whose size and budget remain secret. The Pentagon's newest counterterrorism carrying out intelligence collection, analysis and operations within the United States and abroad, according to a Pentagon fact sheet on the Counterintelligence Field Activity, or CIFA, provided to The Washington Post. In a new move to centralize all counterterrorism intelligence collection inside the United States, the Defense Department this month gave CIFA authority to task domestic investigations and operations by the counterintelligence units of the military services. CIFA manages the Pentagon database that includes Talon reports, consisting of raw, unverified information picked up by the military services on suspicious activities that could involve terrorist threats...the Talon database contained reports on peaceful civilian protests and demonstrations that should have been purged long ago under Defense Department regulations.

In one fell, breathtaking swoop, then, all US intelligence and law enforcement agencies, both foreign and domestic, are fused into one monolithic bureau, which includes intelligence, law enforcement, electronic surveillance assets beyond imagination, and the Pentagon's secret-police agency, operating without any meaningful oversight, and bound by no law. This was forseen and planned from the outset, as can be demonstrated by the fact that the budget of our intelligence community is classified, in spite of the Constitutional mandate that all departments publish a budget. Hmmmm. A monolithic state-security secret-police apparatus that covers both foreign and domestic issues and recognizes no legal restrictions?

We've seen that before, in the Soviet Union. It was called the KGB.

It doesn't stop there, not by a long shot. One of the effects of the digital revolution of the last thirty years has been the explosive growth of the "paperless economy", where the vast majority of financial transactions in the US are electronic, either credit or funds-transfer. One facet of this is the records are preserved forever in cyberspace, and the totalitarians who've seized our government made sure to exploit this, in their assault on the Republic:

Sec. 314. Cooperative efforts to deter money laundering …to encourage cooperation among financial institutions, financial regulators and law enforcement officials, and to permit the sharing of information by law enforcement and regulatory authorities with such institutions… This section also allows…the sharing of information among banks. that? All intelligence agencies, law enforcement agencies, banks, financial institutions, , and regulatory authorities are all working from the same pool of info-which means, really, that they are all one.

The Beast continues to take shape.

Since no Unitary Executive worthy of the name would ever let himself be constrained by something as piddling as warrants or the law, we have the rather ironically-named "Protect America Act". You are by now getting a sense of how these things go, so what is contained herein should not be much of a surprise.
From the ACLU:

The so-called “Protect America Act of 2007,"...allows for massive, untargeted collection of international communications without court order or meaningful oversight by either Congress or the courts. It contains virtually no protections for the U.S. end of the phone call or email, leaving decisions about the collection, mining and use of Americans’ private communications up to this administration... The...Act allows the Attorney General (AG) to issue program warrants for international calls without court review...The law is silent on how to treat... American phone calls and emails — leaving the administration to decide how to collect, store, datamine and use Americans’ private communications...The AG is directed to submit to the intelligence court the procedures by which this new program will operate. However, the report...does not require the AG to explain how it treats Americans’ calls or emails when they are intercepted. The court will have no information about how extensive the breach of American privacy is, nor the authority to remedy it...The new law requires the AG to report to the Intelligence and Judiciary Committees twice a year. But those reports will only contain information about activity in violation of the AG’s own secret guidelines...The AG does not have to report on how many Americans’ calls it has tapped, incidentally picked up or how many Americans have become targets...

And there is still more. One of the most insidious aspects of this rush to a police state has been the programs which have been stopped, like Total Information Awareness (the brainchild of convicted Iran-Contra conspirator John Poindexter) and the "Domestic Security Enhancement Act", aka "Patriot Act II", only to have their most nefarios characteristics resurface under other names. Again, from the ACLU:

The government would no longer be required to disclose the identity of anyone, even an American citizen...until criminal charges are filed, no matter how long that takes (sec 201). Current court limits on local police spying on religious and political activity would be repealed (sec. 312). The government would be allowed to obtain credit records and library records without a warrant (secs. 126, 128, 129). Wiretaps without any court order for up to 15 days after terror attack would be permissible. (sec. 103). Release of information about health/safety hazards posed by chemical and other plants would be restricted (sec. 202). The reach of an already overbroad definition of terrorism would be expanded individuals engaged in civil disobedience could risk losing their citizenship (sec. 501); their organization could be subject to wiretapping (secs. 120, 121) and asset seizure...A new defense would be created, shielding wiretappers acting without a court order from prosecution, so long as they had authorization from senior officials (sec. 106). The bill would deny the press, and the public, access to the following important information: Arrests of terrorism suspects who have not been charged with a crime (sec. 201) - which might include material witness detainees, immigration detainees, or Americans citizens or others labeled "enemy combatants" by the President; Grand jury proceedings in connection with terror investigation (sec. 206); Public information about health and safety hazards of chemical and other plants (sec. 202).
Damn it all. One, exhausted and shocked, might think they would be quite finished by now-but, sadly, no. Now we turn to the two aces, the guarantee of victory over lawful, principled, republican(small r) government, lying face up for all to see, the Military Commissions Act and the Executive Order. Having neutralized the Congress, the Executive may now complete the destruction of that other check, the Judiciary, with this from the Military Commissions Act, via wikipedia:

...(c) Determination of Unlawful Enemy Combatant Status Dispositive- A finding, whether before, on, or after the date of the enactment of the Military Commissions Act of 2006, by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense that a person is an unlawful enemy combatant is dispositive for purposes of jurisdiction for trial by military commission under this chapter.
If accused of a crime, does one have a right to his day in court, as a free citizen?

No. You do not.
You simply must be declared an enemy combatant, and an enemy combatant is whoever the President or Secretary of Defense says it is. Don't think so? Ask Jose' Padilla, an American citizen recently convicted on all charges despite being held incommunicado and tortured for three years under that very status. Once one is declared an enemy combatant, all rights under the US Constitution are void. Be very clear on this.

Finally, plugging whatever holes may be left in this wall of police-state and Enabling-Act legislation is the Executive Order, as used to confiscate assets (from EO 13048-7/17/07):

“…all property and interests in property of the following persons...are blocked and may not be transferred, paid, exported, withdrawn, or otherwise dealt in: any person determined by the Secretary of the Treasury, in consultation with the Secretary of State and the Secretary of Defense,
(i) to have committed, or to pose a significant risk of committing, an act or acts of violence that have the purpose or effect of:
(A) threatening the peace or stability of Iraq or the Government of Iraq; or
(B) undermining efforts to promote economic reconstruction and political reform in Iraq or to provide humanitarian assistance to the Iraqi people;
(ii) to have...provided financial, material, logistical, or technical support for...such an act...or any person whose property and interests in property are blocked pursuant to this order; or
(iii) to be owned or controlled by...any person whose property and interests in property are blocked pursuant to this order.

Sec. 5. For those persons whose property and interests in property are blocked pursuant to this order who might have a constitutional presence in the United States, I find that, because of the ability to transfer funds or other assets instantaneously, prior notice to such persons of measures to be taken pursuant to this order would render these measures ineffectual. I therefore determine that...there need be no prior notice of a listing or determination made pursuant to section 1(a) of this order.
Sec. 6....The Secretary of the Treasury may redelegate any of these functions to other officers and agencies of the United States Government, consistent with applicable law.
[signed:] George W. Bush
If they decide you are obstructing Administration policy in Iraq, this means you.

And in case you're wondering what your detention may be like, I will refer you the Commander Guy again (from EO13440-7/20/07):

(b) I hereby determine that a program of detention and interrogation approved by the Director of the Central Intelligence Agency fully complies with the obligations of the United States under Common Article 3...
What follows is a long list of prohibited acts, ironic in the extreme since the entire world has seen pictures of US personnel doing everyone of these thing with very little repercussion.

And finally, one activating the State of Emergency that the Enabling Legislation calls for (from EO 13441-8/1/07):

I, GEORGE W. BUSH, President of the United States of America, determine that the actions of certain persons…to infringe upon or undermine Lebanese sovereignty contribute to political and economic instability in that country and the region and constitute an unusual and extraordinary threat to the national security and foreign policy of the United States, and I hereby declare a national emergency to deal with that threat.
So, thus is a political crises in a small nation far away exploited for the benefit of would-be tyrants at home, and the edifice of tyranny complete. The Shape of the Beast is plain for all to see. A huge, malevolent cephalapod, with countless, dark tentacles of surveillance, terror, and the inhumanity of unchecked AUTHORITY, intruding into every aspect of your lives and thoughts, being sure to wave a flag while trumpeting patriotic songs and propaganda. For you in the US, I have but one question: Do you still think you live in a free country? Do you REALLY???


Lynn Lightfoot said...

Thanks for this post, Ron. I came to your blog for the first time only this week, after clicking on the link to your Dien Bien Phu post on FDL. I'll be sending a link to The Shape of the Beast to several friends--it's excellent.

Ron said...

Thank you so much. Glad you found the post worthwhile, and I hope your friends will as well. Again, thank you, and please come again!