How the US Government Betrayed the Constitution and invented an Imaginary Fascist One

The idea of having a strong Federal government was controversial in the early United States, and one of the ways Federalists reassured Americans that it wouldn’t become tyrannical was to append a Bill of Rights to the Constitution.

That attempt to prevent despotism has failed, because the Federal government and its various agencies have set aside the Bill of Rights as a dead letter, substituted for them a bizarre set of interpretations of law, and either avoid having the courts adjudicate their fascist fantasies or managed to have appointed to the bench unethical or authoritarian judges that will uphold virtually anything they do.

How corrupt our system has become is evident when even the New Yorker emphasizes that a secret Senate report found that torture in the Bush years was “unnecessary” and “ineffective.” Not that it was “unconstitutional.”

The Eighth Amendment of the US constitution forbids ‘cruel and unusual punishment.’ US courts have found that the Framers’ injunction was intended to be dynamic, and did not only forbid those things thought barbaric in 1789 but those things contemporary Americans would find cruel and unusual. As Cornell Law school put it,

‘in Weems v. United States it was concluded that the framers had not merely intended to bar the reinstitution of procedures and techniques condemned in 1789, but had intended to prevent the authorization of “a coercive cruelty being exercised through other forms of punishment.” The Amendment therefore was of an “expansive and vital character”41 and, in the words of a later Court, “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” ‘

If a sheriff in a small town arrested a shoplifter and waterboarded him 54 times, the sheriff would go to jail. Federal officials? Not so much.

Let us just underline the Supreme Court’s diction here in Weems. The Framers had sought, they said, to forestall “a coercive cruelty being exercised through other forms of punishment.”

Coercive cruelty. Coercive cruelty was the hallmark of treatment of Federal detainees in the Bush era. That was what Abu Ghraib, Bagram and Guantanamo were about. Some prisoners were likely victims of manslaughter by coercive cruelty (it is hard to know when to stop).

Waterboarding is illegal (not to mention setting German shepherds on people to viciously bite them). Professor of Law Wilson R. Huhn writes:

“Three major treaties that the United States has signed and unambiguously ratified prohibit the United States from subjecting prisoners in the War on Terror to this kind of treatment. First, Common Article 3 of the Geneva Convention Relative to the Treatment of Prisoners of War, which the Senate unanimously ratified in 1955, prohibits the parties to the treaty from acts upon prisoners including “violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; . . . outrages upon personal dignity, in particular, humiliating and degrading treatment.”[18] Second, the International Covenant on Civil and Political Rights, which the Senate ratified in 1992, states that “[n]o one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”[19] Third, the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment, which the Senate ratified in 1994, provides that “[e]ach State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction,”[20] and that “[e]ach State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture . . . .”

The United States has enacted statutes prohibiting torture and cruel or inhuman treatment. It is these statutes which make waterboarding illegal… The four principal statutes which Congress has adopted to implement the provisions of the foregoing treaties are the Torture Act,… the War Crimes Act…,and the laws entitled “Prohibition on Cruel, Inhuman, or Degrading Treatment or Punishment of Persons Under Custody or Control of the United States Government”… and “Additional Prohibition on Cruel, Inhuman or Degrading Treatment or Punishment.”… The first two statutes are criminal laws while the latter two statutes extend civil rights to any person in the custody of the United States anywhere in the world.

The Torture Act makes it a felony for any person, acting under color of law, to commit an act of torture upon any person within the defendant’s custody or control outside the United States…. Torture is defined as the intentional infliction of “severe physical or mental pain or suffering” upon a person within the defendant’s custody or control… To be “severe,” any mental pain or suffering resulting from torture must be “prolonged.”[29] Under this law, torture is punishable by up to twenty years imprisonment unless the victim dies as a result of the torture, in which case the penalty is death or life in prison.”

But somehow employees of the US military, the CIA and other Federal agencies managed to ignore all that. So yes, unnecessary and ineffective. But also, illegal and unconstitutional and treasonous.

Then of course there is the National Security Agency’s gutting of the Fourth Amendment ban on unreasonable search and seizure. As long as the unreasonable search and seizure happens on the internet, apparently that is all right. What arrogance, what hypocrisy, what fascism.

An honest appeals court just ruled that the government needs a warrant to put a tracking device on your car and follow you around by GPS. But your cell phone metadata also reveals your movements, and the NSA is scooping that information up, effectively following you around without a warrant, exactly what the court just found unjustified. But the Federal government (yes, the Obama administration) has succeeded in keeping NSA practices out of the courts.

While few Americans care that the NSA was intensively spying on the Mexicans, French and Germans, even on German chancellor Angela Merkel’s private cell phone, they should. The Bill of Rights were once a point of inspiration for human rights activists around the world. Much of what the youth who led the Arab upheavals of 2011 wanted was enshrined in the Bill of Rights. American ideals and rule of law were part of America’s soft power in the world. The European Union is suddenly less cooperative because of our allies’ outrage at being spied on. No one wants to be like creepy peeping toms or vicious torturers, and that is what Americans have become.

Moreover, the NSA foreign spying is racist. Yes, on top of everything else, it involves a racist hierarchy. The US doesn’t intensively spy on Canadians, British and Australians, i.e. on what were called in the 19th century ‘Anglo-Saxons.’ It is only the inferior races that Washington subjects to surveillance.

But all that is crashing and burning as the US government has betrayed those ideals over and over again. We’re being massively spied on by our government, our location, the people we call, the websites we visit, all being monitored constantly. And if the government decides we are terrorism suspects, we could well be tortured. Martin Luther King’s principle of civil disobedience would be categorized as terrorism today, and if he were active in our time, instead of naming a Federal holiday after him, the government would have MLK waterboarded by police dressed up as military commandos.

22 Responses

  1. Strong stuff and hammer to nail.
    It’s one thing to loose a fight to overwhelming odds or superior strength; but to docilely allow one’s rights to be taken away with nary a peep is just flabbergasting.
    It can be fairly said; the citizens of a democracy get the government they deserve.

  2. Former FBI agent William Turner’s book “The Fish is Red” recognized that federal, state and local law enforcement agencies had a general policy of non-enforcement when it came to addressing evidence of violations of criminal law uncovered during the CIA’s Operation Mongoose (headquartered at the University of Miami medical school)covert actions against Cuba during the 1960s.

    Clear proof of violations of the Neutrality Act as well as explosives and firearms statutes were ignored and prosecutions only in the clearest cases of blatant wrongdoing by non-employee operatives of the Central Intelligence Agency. Anti-Castro exile leader Orlando Bosch was given a ten-year sentence for firing a bazooka at a Polish freighter of the Florida coast in a rare display prosecutorial and judicial toughness toward the Cuban-American community – but even he eventually received a pardon by President Bush in 1989 after serving a fraction of his sentence.

    The CIA even conceded that kidnapping laws may have been violated when Soviet KGB defector Yuri Nosenko was held by the Agency and tortured for years until it was concluded he was authentic and not a Soviet double agent.

    • “Radical?” Labels are such delicate and dangerous things — this aging curmudgeon would offer that the thoughts of Dr. Cole are right in line with what used to be called “conservatism.” Even Burke might agree with the observations in Dr. Cole’s post.

      Not, of course, what have come to be called “conservatives,” part of the triumph of misappropriation and misrepresentation of once-honorable words by oligokleptocrats and their “minions,” recently Gingrich, link to skilluminati.com, and Rove, link to dailykos.com, owned by the likes of the MurdoKochs.

      Any votes on a label, neologistical or traditional, that might more accurately describe our faux “patriots” and “capitalists?”

      And I have to observe that there ain’t ANYTHING IMAGINARY about the infestation of the planet by the Matrix-ites and their grim (Mr. Bill) or smug (Joe from Wherever) apologists. Who will insist that the headline terminology above is inappropriately inaccurate, according to the definitions they insist upon in order to win their points, to describe Our Great Democracy, that is, after all, only trying to ensure the necessary and appropriate upward flood of wealth to plenish, and re-plenish, and re-re-plenish the armories, and induce the lower orders to enlist and be one of The Few and The Strong, to muster and step out smartly to manifestly spread more of its exceptional “democratic” self all over the planet: “Terris est omnis divisa in partes sex…” link to history.navy.mil (let’s remember that sex sells ANYthing)

      • FWIW, I was using “radical”as an adjective, not as a noun.

        Getting to the root. You know you got to do it if the job is to be a success, sometimes you get there, sometimes you hack and hack and you just pull up one inch and you know that weed is coming back.

  3. Looking back at these images link to theguardian.com showing young men being tortured and humiliated you get the uneasy feeling our troops were actually enjoying their role as torturers.

    Also in light of the revelations released by whistle-blower Snowden these images bring to mind the embarrassment by the Bush administration when the public viewed in horror what our government was doing in Abu Ghraib, which punctuates the need for transparency.

    Even the Marquis de Sade said “What can be more brutal than war?”

    • The images show soldiers, low level in rank, humanity and intelligence and who were punished. The generals and field officers who were also complicit went unpunished. General Geoffrey Miller who had the job of Gitmo-izing Abu Ghraib retired with a hefty pension. “At his retirement service, Miller was awarded the Distinguished Service Medal, and praised as an “innovator”.” (Wikipedia)

  4. The Folly of Empire by Chris Hedges

    “The final days of empire give ample employment and power to the feckless, the insane and the idiotic. These politicians and court propagandists, hired to be the public faces on the sinking ship, mask the real work of the crew, which is systematically robbing the passengers as the vessel goes down. The mandarins of power stand in the wheelhouse barking ridiculous orders and seeing how fast they can gun the engines. They fight like children over the ship’s wheel as the vessel heads full speed into a giant ice field. They wander the decks giving pompous speeches. They shout that the SS America is the greatest ship ever built. They insist that it has the most advanced technology and embodies the highest virtues. And then, with abrupt and unexpected fury, down we will go into the frigid waters.”

    link to truthdig.com

    Several people have pointed out the parallels between the USA and the end stages of the Roman Empire.

    Looks like the USA is going full speed down the drain.

    The international fallout from the Eric Snowden documents might be enough, to get the attention of the country.

    When I asked Jeremy Scahill if the NSA revelations would reduce American exceptionalism, he responded No. Exceptionalism is so deeply embedded in the American culture that he didn’t know what it would take to reduce it.

  5. Let us be clear at to who is to blame.

    If the teabag party is willing to close government over healthcare, what chance does the US have to fix bigger fundamental problems?

    That is to say, if republicans refuse to recognize the health care problem in American, much less offer a solution, do you think republicans who cheered torture in the ChimpCo regime recognize any of this as a problem?

    Simply put, today’s republican party is fascist. They like it this way. They are white. They think they will never, ever be harmed by the hate and discontent they create.

  6. The idea that the US Constitution is a compendium of our rights is wrong and destructive. That document constitutes the government and prohibits it from denying some basic rights. We have many more rights that are inherent, God-given as it says in the Declaration of Independence.

    As Justice Roberts has said, there is no right to abortion in the Constitution, and he’s correct. There is also no right to breathe or have sex, or pop pills for that matter.

    Founding Fathers: Neither Hamilton nor Madison originally wanted the Constitution to include a Bill of Rights, because they were concerned that any specific enumeration of rights might open the door to legal sophistries that could override an intuitive appeal to natural rights, and reduce the guarantee of rights to a set of narrow technicalities, meaningless in practice and understood only by lawyers. When Madison saw that the sentiment in favor of a Bill of Rights had become so overwhelming that it could not be forestalled, he insisted on writing it himself, and incorporating the Ninth and Tenth Amendments as a precaution against the adoption of narrow technical interpretations.

    The Declaration of Independence, 1776, recognizes that people have certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. So the government is betraying not only the Constitution in some cases but more importantly our inherent rights to life, liberty and the pursuit of happiness. The government, or any government, doesn’t determine our rights, not mine anyhow.

  7. For the record, I am not so sure that Canada isn’t being as rigorously spied upon as, for example, Brazil, also for commercial reasons.

    But the spying would be redundant: the influence of the American government on the ruling Canadian political party being so entrenched and complete.

    We actually have a Federal government that doesn’t believe in the sovereignty of its own people.

  8. His strategy has worked very well! How do you defeat the pre-eminent world power when you are just a band of a few thousand living is a far away country like Afghanistan? The answer is you get them to defeat themselves. You drive them insane.

    Over-reactions, witch hunts, attacking innocents, alienating friends all contribute to our isolation and paranoia. That universal excuse; “terrorism” justifies all. Insanity reigns supreme!

  9. This was done because the American public didn’t just acquiesce, didn’t just encourage, but begged the administration to protect them from the Bogeyman. Takes courage to live free.

  10. I once criticized you for not using your position and well-informed insight in a more forceful manner. I now realize that I was mistaken and I am thankful for that.

    LS

  11. Prof. Cole
    The brutal, horrible truth. I hope you have some good people watching your back.

  12. Terribly sad, depressing and true.

    The question is: What can we do about it? It’s the same with US economic policy. We know that Social Security and Medicare benefits should be increased, that the rich should pay higher taxes, there should be a financial transactions tax, higher minimum wages or living wages, more and tougher enforcement of occupational safety laws, ditto with environmental laws and so on and so on.

    There’s widespread recognition of the problems in US society and plenty of great solutions. The question is again: What political strategy brings about these changes?

  13. The problem is not only one of a minority of the people shredding the Constitution, but the greater problem is of the majority of the people who don’t know of this or don’t care and, worse, approve of it.

    Add to Professor Cole’s commentary above and this article – No way out: As ye sow, so shall ye reap – link to counterpunch.org by Paul Craig Roberts on America’s economic decline and there is no conclusion other than dystopian prospects for our future.

    • I hate to break character, but I think there is a little hope for our species.

      Not that there’s any great reason to root and cheer for “US,” since the misfortunes of random biology built on the genetic base we inherit will always produce human tapeworms and liver flukes and other parasites, and of course the predators, that always glom onto power. And no amount of tinkering by “really smart people” who only know just enough to be profitably dangerous will fix that genetic inheritance.

      But a lot of “ordinary people” have started to heal the wounds the Kleptosociopathicrats have slashed in that complexity that “we” reductio-ad-absurdam as “the economy.” And in smallness and in odd corners of the planet, quite a few of us are looking for ways to build ourselves into a different, healthier and sustainable presence.

      The plutokleptocrats are all “Apres moi le deluge” pathogens, who could care less if the planet, and the human overpresence thereon that they suck off of, dies off. The Kochs and Jamie Dimon and Lloyd Blankfein and Nioxon and Cheney and the Bush League and even Obama, like Stalin and Pol Pot and Leona Helmsley and William Casey and the Shah and many, many others, get to live high, abuse others big-time, and die in comfort and ease. The whole fundamental problem, from my little perspective, is lack of consequences that matter. Unlike our individual bodies, there are no sufficient immune systems in place, no homeostatic mechanisms to speak of, to drive the soma in the direction of survival and health. There are no consequences, since the “healthy tissue” is led to believe first that the tumor cells and pathogens are no threat, and second that “the rule of law” will eventually result in policing up the disease processes. A vain belief, a naive hope, when the disease process, like many cancers and various auto-immune disorders, co-opts the immune system to help them swing the wrecking ball and pick through the rubble for edible bits. And eventually, the larger body’s resources are exhausted, so even the energy to renew and refresh is gone into gluttony and titillation of the parasites.

      When I worked for the EPA, decades ago, there was a report of a village in some “undeveloped” estuarine place where a post-national giant chemical corporation’s “suits” bribed “the government” to allow construction of a big chemical plant, unburdened by even rudimentary “externality controls.” The result was gross pollution, with multiple persistent toxins, of the ecology from which the inhabitants had been drawing their sustenance for millennia. Multiple pleas to “the government” to stop the killing resulted in deferral, delay and deception, a downward cascade of bribes to buy off the nascent leaders, goons in action, all that stuff. Eventually, the “locals” did the other thing, broke into the plant one balmy subtropical night and burnt it to the ground. (Any idea what happens under the TPP if something like that happens in the future? The locals have to pay to rebuild, and eat the toxins, right?)

      But there are some of us (now well identified in the Overlord databases, of course) who do wish and work for Better, as opposed to MORE… Hence that crippling bit of Hope that we ain’t headed for a Overlord-triggered K-T-class (now “K-Pg”) event… link to en.wikipedia.org

  14. There may be a simple dynamic here that, although it subserves fascism in this case, is not of a piece with it. Namely: people can be counted on to use the tools they have in hand, and also (alas) not to spend a lot of time assessing and dealing with the problems that face them. It’s technically feasible to gather immense amounts of data, and this gives the appearance of being a vigorous intelligence activity. It’s of little interest to the doer whether there’s an actual favorable outcome, as long as there’s hustle and expenditure, which there is in plenty.

    9/11 happened because the FBI and CIA were not in communication with each other, because the mentally ill Cheney was in charge and in the grips of delusions about the capabilities of non-state actors, and even perhaps because the Republicans made every effort to diminish Clinton’s effectiveness in the late 90′s. There was plenty of intelligence of exactly the right kind. But post 9/11 a few quiet organizational changes were not going fill the bill. Along the same lines, replacing professional interrogators with bumbling torturers might not seem like the most effective course of action — but effectiveness was not the top priority.

  15. “Moreover, the NSA foreign spying is racist. Yes, on top of everything else, it involves a racist hierarchy. The US doesn’t intensively spy on Canadians, British and Australians, i.e. on what were called in the 19th century ‘Anglo-Saxons.’ It is only the inferior races that Washington subjects to surveillance.”

    To avoid ambiguity, shouldn’t “inferior” in the last sentence be in quotes?

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