Corporations are people, my friend.

— Mitt Romney at Iowa State Fair

Corporations are obviously not people. But Romney is accurate in the sense that corporations have hijacked most of the rights of people while evading the responsibilities. An important part of the social justice agenda is democratizing corporations. This means we must radically change the laws so people can be in charge of corporations. We must strip them of corporate personhood and cut them down to size so democracy can work. People are taking action so democracy can regulate the size, scope and actions of corporations.

One of the most basic roles of society is to protect the people from harm. The massive size of many international corporations makes democratic control over them nearly impossible.

Corporate crime is widespread. The New York Times, ProPublica and others have revealed Wall Street giants like JPMorgan, Citigroup, Bank of America and Goldman Sachs have been charged with fraud many times only to get off by paying hundreds of millions. Professors at University of Virginia have documented hundreds of corporations which have been found guilty or pled guilty in federal courts.

Corporate abuse is even more widespread. For example, Corporate Accountability International named six to its Corporate Hall of Shame, including: Koch Industries for spending over $50 million to fund climate change denial; Monsanto for mass producing cancer causing chemicals; Chevron for dumping more than 18 billion gallons of toxic waste into the Ecuadorian Amazon; Exxon Mobil for being the worst polluter; Blackwater (now Xe) for killing unarmed Iraqi civilians and hiring paramilitaries; and Halliburton, the nation’s leading war profiteer.

Making corporations responsible to democracy of the people is challenging considering Wal-Mart, the world’s biggest corporation, does more business itself annually than all but two dozen of the two hundred plus countries in the world. Without dramatic changes, how can we expect people in small or even big countries to force corporations like Wal-Mart, Royal Dutch Shell, Exxon Mobil, BP, Toyota or Chevron to live by the same rules all the people have to?

Justice demands we make sure corporations do not harm people. Democracy must require that they operate for the common good.

In order to cut corporations down to size, the people must strip corporations of the special artificial legal protections they have created for themselves.

The story of how corporations took the full rights of legal persons in one of the great perverse tragedies in legal history. Corporations have worked the courts mercilessly since 1819 to take a wide variety of constitutional rights that were designed to cover only people. For example, the Fourteenth Amendment was passed in 1868 to make sure all citizens, particularly freed slaves and people of color, had full rights. There was no mention of protecting corporations. But corporations jumped on this opportunity resulting in a questionable Supreme Court decision that granted them legal personhood. At roughly the same time, the Supreme Court approved “separate but equal” racial segregation. Thus in thirty years, African Americans lost their legal personhood, while corporations acquired theirs.

Corporations now claim: 1st amendment free speech rights to advertise and influence elections: 4th amendment search and seizure rights to resist subpoenas and challenges to their criminal actions; 5th amendment rights to due process; 14th amendment rights to due process where corporations took the rights of former slaves and used them for corporate protection; plus rights under the Commerce and Contracts clauses of the constitution.

The most recent corporate judicial takeover of constitutional rights is the 2010 Supreme Court decision in Citizens United versus the Federal Election Commission. The court ruled that corporations are protected by the First Amendment so they can use their money to influence elections.

Because of the bad Supreme Court decisions, it takes a constitutional amendment by the people to change the laws back. An amendment requires two-thirds of both houses of Congress to agree, then three-quarters of the states must vote to ratify. This will take real work. But despite the growing size and unrestricted power of corporations, people are fighting back.

Dozens of groups are working to reverse Citizens United and restore limits on corporate election advocacy. In January 2011, groups delivered petitions signed by over 750,000 people calling on Congress to amend the Constitution and reverse the decision. More than 350 local events were held in late January 2012 to challenge the Citizens United decision.

Groups challenging this injustice include Code Pink, Common Cause, Free Speech for People, Moveon.org, Move to Amend, National Lawyers Guild, POCLAD, Public Citizen, People for American Way, The Center for Media and Democracy, and Women’s League for Peace and Freedom.

Many groups are asking for a broad constitutional amendment that makes it clear that corporations are not people and should not be given any constitutional rights. Representatives Ted Deutsch of Florida, Jim McGovern of Massachusetts and Senator Bernie Sanders of Vermont have sponsored bills in Congress to start the process for a constitutional amendment to make it clear that corporations are not people, are not entitled to the rights of people, and cannot contribute to political campaigns.

There are also many energetic actions at the state level. People for the American Way list organizational efforts in nearly all 50 states to end corporate influence in elections or amend the constitution.

Massive corporations now rule the earth. But they are recent arrivals which can, and should, be dispatched. It is time for people to again take control. The legal fiction of corporate personhood and the constitutional rights taken by corporations must cease. Join the efforts to cut them down to size and restore the right of the people to govern.

We may be in the advanced stages of going loony as a society and a polity, and yet expanding one’s awareness of how this process is proceeding is a form of enlightenment, even if the enlightenment is offered with some defeatist shading.

The United States of Fear is a collection of Tom Engelhardt’s writings from his TomDispatch blog. It turns our world inside out any number of times, allowing us to glimpse with startling clarity the horrifying world outside our cave without ever quite persuading us that the real world can be real if it isn’t on television, and not infrequently building into the presentation the understanding that there is no cure for what ails us.

Here’s an example. According to Engelhardt we dwell in a “Postlegal America”:

Is the Libyan war legal? Was Osama bin Laden’s killing legal? Is it legal for the president of the United States to target an American citizen for assassination? Were those ‘enhanced interrogation techniques’ legal? … [Such questions] are irrelevant. Think of them as twentieth century questions that don’t begin to come to grips with twenty-first-century American realities. In fact, I think of them, and the very idea of a nation based on the rule of law, as symptoms of nostalgia for a long-lost republic.

This formulation crystallizes our understanding that we are not dealing here with something in the way of the peaks of corruption seen in past cycles. There is something new and different about an age in which our leading criminals go on book tours while people scream for the blood of our leading whistleblowers, an age in which blanket immunity shields those guilty of the largest crimes from either prosecution or public identification, an age in which Ed Meese’s contention (that anyone among the peasants who is accused of a minor crime is by definition guilty) walks hand-in-hand with Richard Nixon’s explanation (that if a president does it then it is not a crime). But Engelhardt’s formulation simultaneously belittles and discourages efforts to undo this development. Who wants to be irrelevant, to fail to come to grips with the proper century, to suffer from nostalgia? Well, I do, of course. I want to join Martin King’s International Association for the Advancement of Creative Maladjustment. I don’t want to adjust to Postlegal Land.

In addition, according to Engelhardt, we have entered the Soviet Era in America:

It gives you chills to run across Communist Party general secretary Mikhail Gorbachev at a Politburo meeting in October 1985, almost six years after Soviet troops first flooded into Afghanistan, reading letters aloud to his colleagues from embittered Soviet citizens. … Or, in November 1986, insisting to those same colleagues that the Afghan War must be ended in a year, ‘at maximum, two.’ … Or what about Marshal Sergei Akhromeyev … ‘There is no single piece of land in this country that has not been occupied by a Soviet soldier. Nevertheless, the majority of the territory remains in the hands of the rebels.’

Not only has the United States transformed itself into the Soviet Union as the new occupier of Afghanistan whistling past the imperial graveyard, but we have accomplished this in the most Hopeful manner without really changing anything other than creating a collective fantasy called Change:

In the midst of the Great Recession, under a new president with supposedly far fewer illusions about American omnipotence and power, war policy continued to expand in just about every way.

Engelhardt’s book takes us through the dark Bush-Cheney era and on through the sunkissed dawn of Obama’s codification and entrenchment of Bush-Cheney crimes as the new normalcy. Engelhardt starts with the Cheney-run empowerment of the members of the Project for the New American Century:

This may, in fact, be the first example in history of a think tank coming to power and actually putting its blue-sky suggestions into operation as government policy, or perhaps it’s the only example so far of a government in waiting masquerading as a think tank.

The agenda of that think tank is still the agenda of the White House and Pentagon. What has changed? In Engelhardt’s telling, we’ve gone from a government of fanatical pro-war visionaries to one with no vision at all, just momentum. Oh, and, as Engelhardt points out, the U.S. corporate media has stopped seriously covering the deaths of U.S. men and women in war. That’s a change. And the world’s biggest ever embassy in Iraq from the Bush era is now being duplicated in Pakistan — with Hopey Changey drapes no doubt.

Another change that Engelhardt draws out and focuses our eyes and ears on is what might be called the logorrhea of the lieutenants. “There’s a history still to be written,” writes Engelhardt as he publishes the first draft, “about how our highest military commanders came to never shut up.” Military propaganda targeting our own people is a daily diet now. And while the generals are talking, our economy is imploding, our infrastructure crumbling. We know this is happening, but we don’t usually contemplate the scale of it or push to do something about it. We’re too fascinated by all the medals on the generals’ uniforms. And we’re not the only ones. “I have no greater job,” Engelhardt quotes Obama saying, “nothing gives me more honor than serving as your commander in chief.” Engelhardt comments in typical fashion:

As ever, all of this was overlooked. Nowhere did a single commentator wonder, for instance, whether an American president was really supposed to feel that being commander in chief offered greater ‘honor’ than being president of a nation of citizens. In another age, such a statement would have registered as, at best, bizarre.

Like the Italian cruise ship captain who accidentally “tripped” and fell into a lifeboat and abandoned his floating city to its fate, the power madness Engelhardt depicts is framed in his book as the flailings of a beast in decline:

The proximate cause of Washington’s defeat is a collapse of its imperial position in a region that, ever since President Jimmy Carter proclaimed his Carter Doctrine in 1980, has been considered the crucible of global power. Today, ‘people power’ has shaken the pillars of the American position in the Middle East, while — despite the staggering levels of military might the Pentagon still has embedded in the area — the Obama administration has found itself standing helplessly and in grim confusion.

Now Engelhardt comes around to the possibility that indeed something can be done, at least by foreigners: “Never in memory,” Engelhardt writes in the excitement of last year’s Arab Spring, “have so many unjust or simply despicable rulers felt quite so helpless, despite being armed to the teeth — in the presence of unarmed humanity. There has to be joy and hope in that alone.”

If “The United States of Fear” helps the United States set aside the fear, there is no limit to what unarmed humanity can do, even here, even acting on its nostalgia for the never-quite-existent age of equality before the law.

Why is Ron Paul America’s last chance?

Because he is the only candidate who is not owned lock, stock, and barrel by the military-security complex, Wall Street, and the Israel Lobby.

All of the others, including President Obama, are owned by exactly the same interest groups. There are no differences between them. Every candidate except Ron Paul stands for war and a police state, and all have demonstrated their complete and total subservience to Israel. The fact that there is no difference between them is made perfectly clear by the absence of substantive issues in the campaigns of the Republican candidates.

Only Ron Paul deals with real issues, so he is excluded from “debates” in which the other Republican candidates throw mud at one another: “Gingrich voted $60 million to a UN program supporting abortion in China.” “Romney loves to fire people.”

The mindlessness repels.

More importantly, only Ron Paul respects the US Constitution and its protection of civil liberty. Only Ron Paul understands that if the Constitution cannot be resurrected from its public murder by Congress and the executive branch, then Americans are lost to tyranny.

There isn’t much time in which to revive the Constitution. One more presidential term with no habeas corpus and no due process for US citizens and with torture and assassination of US citizens by their own government, and it will be too late. Tyranny will have been firmly institutionalized, and too many Americans from the lowly to the high and mighty will have been implicated in the crimes of the state. Extensive guilt and complicity will make it impossible to restore the accountability of government to law.

If Ron Paul is not elected president in this year’s election, by 2016 American liberty will be in a forgotten grave in a forgotten grave yard.

Having said this, there is no way Ron Paul can be elected, for these reasons:

Not enough Americans understand that the “war on terror” has been used to create a police state. The brainwashed citizenry believe that the police state is making them safe from terrorists.

Liberals, progressives, and the left-wing oppose Ron Paul, claiming that “he would abolish the social safety net, privatize Social Security and Medicare, throw the widows and orphans into the street, abolish the Federal Reserve,” etc.

Apparently, liberals, progressives, and the left-wing do not understand that privatizing Social Security and Medicare and destroying the social safety net are policies that many conservative Republicans favor and are policies that Wall Street is forcing on both political parties. In contrast, a President Ron Paul would be isolated in the White House and would never be able to muster the support of Congress and the powerful interest groups to achieve such radical changes. Moreover, Ron Paul has made it clear that a welfare-free state cannot be achieved by decree but only by creating an economy in which opportunity exists for people to stand on their own feet. Ron Paul has said that he does not support ending welfare before an economy is created that makes a welfare state unnecessary.

Candidate Paul cannot take any steps to reassure Americans that he would not throw them to the mercy of the free market, because his libertarian base would turn on him as another unprincipled politician willing to sacrifice his principles for political expediency.

If libertarians were not inflexible, candidate Paul could endorse Ron Unz’s proposal to solve the illegal immigration problem by raising the minimum wage to $12 an hour, so that Americans could afford to work the jobs that are taken by illegals.

Economist James K. Galbraith is probably correct that Unz’s proposal would boost the economy by injecting purchasing power and that the unemployment would be largely confined to illegals who would return to their home country. However, if Ron Paul were to treat Unz’s proposal as one worthy of study and consideration, libertarian ideologues would write him off. Whatever liberal/progressive support he gained would be offset by the loss of his libertarian base.

Why can’t libertarians be as intelligent as Ron Unz and see that if the Constitution is lost all that remains is tyranny?

In short, Americans cannot see beyond their ideologies to the real issue, which is the choice between the Constitution and tyranny.

So we hear absurd accusations that Ron Paul, a libertarian “is a racist.” “Ron Paul is an anti-semite.” “Ron Paul would favor the rich and hurt the poor.”

We don’t hear “Ron Paul would restore and protect the US Constitution.”

What do Americans think life will be like in the absence of the Constitution? I will tell you what it will be like, but first let’s consider the obstacles Ron Paul would face if he were to win the Republican nomination and if he were to be elected president.

In my opinion, if Ron Paul were to win the Republican nomination, the Republican Party would conspire to refuse it to him. The party would simply nominate a different candidate.

If despite everything, Ron Paul were to end up in the White House, he would not be able to form a government that would support his policies. Appointments to cabinet secretaries and assistant secretaries that would support his policies could not be confirmed by the US Senate. President Paul would have to appoint whomever the Senate would confirm in order to form a government. The Senate’s appointees would undermine his policies.

What a President Ron Paul could do, assuming Congress, controlled by powerful private interest groups, did not impeach him on trumped up charges, would be to use whatever forums that might be permitted him to explain to the public, judges, and law schools that the danger from terrorists is miniscule compared to the danger from a government unaccountable to law and the Constitution.

The reason we should vote for Ron Paul is to signal to the powers that be that we understand what they are doing to us. If Paul were to receive a large vote, it could have two good effects. One could be to introduce some caution into the establishment that would slow the march into more war and tyranny. The other is it would signal to Washington’s European and Japanese puppets that not all Americans are stupid sheep. Such an indication could make Washington’s puppet states more cautious and less cooperative with Washington’s drive for world hegemony.

What America Without the Constitution Will Be Like

In the January 4 Huff Post, attorney and author John Whitehead reported on the militarization of local police. Some police forces are now equipped with spy drones. Whitehead reports that a drone manufacturer, AeroVironment Inc., plans to sell 18,000 drones to police departments throughout the country. The company is also advertising a small drone, the “Switchblade,” which can track a person, land on the person and explode.

How long before Americans will be spied upon or murdered as extremists at the discretion of local police?

Recognizing the privacy danger, if not the murder danger, the American Civil Liberties Union has issued a report, “Protecting Privacy From Aerial Surveillance.”

The ACLU believes, correctly, that liberty is threatened by “a surveillance society in which our every move is monitored, tracked, recorded, and scrutinized by authorities.”

The ACLU calls on Congress to legislate privacy protections against the police use of drones. I support the ACLU because it is the most important defender of civil liberty despite other misguided activities, but I wonder what the ACLU is thinking. Congress and the federal courts have already acquiesced in the federal government’s warrantless spying on Americans by the National Security Agency. The Bush regime violated the Foreign Intelligence Surveillance Act many times, and all involved, including President Bush, should have been sent to prison for many lifetimes, as each violation carries a 5-year prison term. But the executive branch emerged scot free. No one was held accountable for clear violations of US statutory law.

The ACLU might think that although the federal executive branch has successfully elevated itself above the law, state and local police forces are still accountable. We must hope that they are, but I doubt it.

The militarization of local police has received some attention. What has not received attention is that state and local police are also being federalized. It is not only military armaments and spy technology that local police are receiving from Washington, but also an attitude toward the public along with federal oversight and the collaboration that goes with it. When Homeland Security, a federal police force, comes into states, as I know has occurred in Georgia and Tennessee, and doubtless other states, and together with the state police stop cars and trucks on Interstate highways and subject them to warrantless searches, what is happening is the de facto deputizing of the state police by Homeland Security. This is the way that Goering and Himmler federalized into the Gestapo the independent police forces of German provinces such as Prussia and Bavaria.

Homeland Security has expanded its warrantless searches far beyond “airline security.”

The budding gestapo agency now conducts warrantless searches on the nation’s highways, on bus and train passengers, and at Social Security offices. On Tuesday January 3, 2012, the Social Security office in Leesburg, Florida, apparently a terrorist hotspot, became a Homeland Security checkpoint. The DHS Gestapo armed with automatic weapons and sniffer dogs demanded IDs from local residents visiting their local Social Security office.

Thomas Milligan, district manager for the Social Security Administration office, said staff were not informed their offices were about to be stormed by armed federal police officers. DHS officials refused to answer questions asked by local media and left with no explanation at noon, reports infowars.com.

The DHS gestapo justified its takeover of a Leesburg Florida Social Security office as being an integral part of “Operational Shield,” conducted by the Federal Protective Service to detect “the presence of unauthorized persons and potentially disruptive or dangerous activities.”

One wonders if even brainwashed flag-waving “superpatriots” can miss the message. The Social Security office of Leesburg, Florida, population 19,086 in central Florida is not a place where terrorists devoid of proper ID might be visiting. To protect America from the scant possibility that terrorists might be congregating at the Leesburg Social Security office, the tyrants in Washington sent the Federal Protective Service at who knows what cost to demand ID from locals visiting their Social Security office.

What is this all about except to establish the precedent that federal police, a new entity in American life, the Federal Protective Service, has authority over state and local police offices and can appear out of the blue to interrogate local citizens.

Why the ACLU thinks it is going to get any action out of a Congress that has accommodated the executive branch’s destruction of habeas corpus, due process, and the constitutional and legal prohibitions against torture is beyond me. But at least the issue is raised. But don’t expect to hear about it from the “mainstream media.”

Americans in 2012, although only a few are aware, live in a concentration camp that is far better controlled than the one portrayed by George Orwell in 1984. Orwell, writing in the late 1940s could not imagine the technology that makes control of populations so thorough as it is today. Orwell’s protagonist could at least have hope. In 2012 with the erasure of privacy by the US government, protagonists can be eliminated by hummingbird-sized drones before they can initiate a protest, much less a rebellion.

Never in human history has a people been so easily and willingly controlled by a hostile government as Americans, who are the least free people on earth. And a large percentage of Americans still wave the flag and chant USA! USA! USA!

The Bush regime operated as if the Constitution did not exist. Any semblance of constitutional government that remained after the Bush years was terminated when Congress passed and President Obama signed the National Defense Authorization Act. One wonders how the National Rifle Association, the defender of the Second Amendment, will now fare. If there is no Constitution, how can there be a Second Amendment? If the President, at his discretion, can set aside habeas corpus and due process and murder citizens based on unproven suspicions, why can’t he set aside the Second Amendment?

Indeed, it is folly to expect a police state to tolerate an armed population.

The NRA is very supportive of the police and military. Now that these armed organizations are being turned against the public, how will the NRA adjust its posture?

Many NRA members, pointing to the “Oath Keepers,” former members of the military who pledge to defend the Constitution, and to police chiefs who support the Second Amendment, believe that the police and military will disobey orders to attack citizens.

But we already witness constantly the gratuitous brutality of “our” police against peaceful protesters. We witness military troops all over the world murder citizens who protest government abuses. Why can’t it happen here?

If you don’t want it to happen here, you had better figure out some way to get Ron Paul into the Presidency and to get him a cabinet and subcabinet that will support him.

Meanwhile, the police state grows. On January 4, 2012, the Obama regime announced by decree, not by legislation, the creation of the Bureau of Counterterrorism which will among other tasks “seek to strengthen homeland security, countering violent extremism.”

Take a moment to think. Do you know of any “violent extremism” happening in the US?

The regime is telling you that it needs a new police bureau with unaccountable powers to “strengthen homeland security” against a nonexistent bogyman.

So who will be the violent extremists who require countering by the Bureau of Counterterrorism? It will be peace activists, the Occupy Wall Street protesters, the unemployed and foreclosed homeless. It will be whoever the police state says. And there is no due process or recourse to law.

Given the facts before you, you are out of your mind if you think Ron Paul’s rhetoric against the welfare state is more important than his defense of liberty.

We had wanted the U.S. Department of the Interior to stop the government-approved slaughter of wild horses and burros in the southwest, but were disappointed that the cattle industry used its money and influence to shelter politicians from Americans who asked for compassion and understanding of  breeds that roamed freely long before the nation’s “Manifest Destiny.”

We wanted to see the federal government protect wolves, foxes, and coyotes, none of whom attack humans, have no food or commercial value, but are major players in environmental balance. But, we knew that the hunting industry would prevail since they see these canines only as competition.

We wanted to see the Pennsylvania legislature stand up for what is right and courageously end the cruelty of pigeon shoots. But, a pack of cowards left Pennsylvania as the only state where pigeon shoots, with their illegal gambling, are actively held.

For what seems to be decades, we have written against racism and bigotry. But many politicians still believe that gays deserve few, if any, rights; that all Muslims are enemy terrorists; and publicly lie that Voter ID is a way to protect the integrity of the electoral process, while knowing it would disenfranchise thousands of poor and minority citizens.

We will continue to write about the destruction of the environment and of ways people are trying to save it. Environmental concern is greater than a decade ago, but so is the ignorant prattling of those who believe global warming is a hoax, and mistakenly believe that the benefits of natural gas fracking, with well-paying jobs in a depressed economy, far outweigh the environmental, health, and safety problems they cause.Ee will continue to write against government corruption, bailouts, tax advantages for the rich and their corporations, governmental waste, and corporate greed. They will continue to exist because millionaire legislators will continue to protect those who contribute to political campaigns. Nevertheless, we will continue to speak out against politicians who have sacrificed the lower- and middle-classes in order to protect the one percent.

We will continue to write about the effects of laying off long-time employees and of outsourcing jobs to “maximize profits.” Until Americans realize that “cheaper” doesn’t necessarily mean “better,” we’ll continue to explain why exploitation knows no geographical boundaries.

The working class successfully launched major counter-attacks against seemingly-entrenched anti-labor politicians in Wisconsin, Ohio, and other states. But these battles will be as long and as bitter as the politicians who deny the rights of workers. We will continue to speak out for worker rights, better working conditions, and benefits at least equal to their managers. We don’t expect anything to change in 2012, but we are still hopeful that a minority of business owners who already respect the worker will influence the rest.

There are still those who believe education is best served by programs manacled by teaching-to-the-test mentality, and are more than willing to sacrifice quality for numbers. We will continue to write about problems in the nation’s educational system, especially the failure to encourage intellectual curiosity and respect for the tenets of academic integrity.

Against great opposition, the President and Congress passed sweeping health care reform. But, certain members of Congress, all of whom have better health care than most Americans, have proclaimed they will dismantle the program they derisively call “Obamacare.”

During this new year, we will still be writing about the unemployed, the homeless, those without adequate health coverage—and against the political lunatics who continue to deny Americans the basics of human life, essentials that most civilized countries already give their citizens.

We had written forcefully against the previous president and vice-president when they strapped on their six-shooters and sent the nation into war in a country that posed no threat to us, while failing to adequately attack a country that housed the core of the al-Qaeda movement. We wrote about the Administration’s failure to provide adequate protection for the soldiers they sent into war or adequate and sustained mental and medical care when they returned home. The War in Iraq is now over, but the war in Afghanistan continues. The reminder of these wars will last as long as there are hospitals and cemeteries.

We had written dozens of stories against the Bush–Cheney Administration’s belief in the use of torture and why it thought it was necessary to shred parts of the Constitution. We had hoped that a new president, a professor of Constitutional law, would stop the attack upon our freedoms and rights. But the PATRIOT Act was extended, and new legislation was enacted that reduces the rights and freedoms of all citizens. At all levels of government, Constitutional violations still exist, and a new year won’t change our determination to bring to light these violations wherever and whenever they occur.

The hope we and this nation had for change we could believe in, and which we still hope will not die, has been minced by the reality of petty politics, with the “Party of No” and its raucous Teabagger mutation blocking social change for America’s improvement. We can hope that the man we elected will realize that compromise works only when the opposition isn’t entrenched in a never-ending priority not of improving the country, but of keeping him from a second term. Perhaps now, three years after his inauguration, President Obama will disregard the disloyal opposition and unleash the fire and truth we saw in the year before his election, and will speak out even more forcefully for the principles we believed when we, as a nation, gave him the largest vote total of any president in history.

We really want to be able to write columns about Americans who take care of each other, about leaders who concentrate upon fixing the social problems. But we know that’s only an ethereal ideal.  So, we’ll just have to hope that the waters of social justice wear down, however slowly, the jagged rocks of haughty resistance.

After Recep Tayyip Erdogan, Istanbul mayor from 1994 to 1998, established the Justice and Development Party (AKP) in the year 2001 and subsequently won a victory in the 2002 election, a new Turkey successfully emerged from a severe economic crisis and its runaway inflation. Since becoming Prime Minister in 2003, Erdogan has diverged from the post-Ottoman laicism (secular), authoritative, and nationalist philosophy of the Turkish Republic’s founder, Kemal Ataturk, and steered Turkey in a direction more consistent with western democratic philosophy.

What enables this nation to operate independently and grow in a dependent and declining western world? Can it sustain its growth? Can it reject Kemalism without military interference? These are only three of many questions concerning Turkey’s foreign, economic and social policies, all of which contain contradictions, doubts, and problems. Problems? Turkey excels in problems. There is the Kurdish problem, Cyprus problem, Islamic influence problem, writing a new Constitution problem, relations with adjacent nations problem, entry to the European Union problem and of course, problems with Israel and the United States

A trip through Turkey, sponsored by the Washington based Rumi Forum, an interfaith and peace organization, featured meetings with parliamentarians, journalists, academics and businessmen, and provided insight into Turkey’s (1) ability to confront its problems, (2) strength to continue an independent path, and (3) role as a model for the Arab nations that are struggling from a revolutionary spring into a bright and peaceful future. Istanbul revealed the ‘think tanks that define the present.” Ankara provided the parliamentarians that shape the future. In Sanliurfa and Gaziantep, one learns of an ancient past and gains insight into Turkey’s nationwide progress and the role of its Kurdish community.

A discussion of Turkey starts with its youth.

A modern country

New airports, new super highways, massive construction of modern buildings in expanding cities that now contain 75% of the population with a median age of 28.5 years, highlight the growing Turkey.

A western oriented nation reflects a Mediterranean appearance. Buildings, offices, restaurants, hotels and institutions use warm colors; brown, beige, orange, together with neutral white, black and lilac; colors associated with steadfastness, simplicity, friendliness, and dependability. The warm colors made large rooms look cozier, while the orange proved mentally stimulating as well as sociable.

A subjective appraisal notes a nation of hard working purposeful and dedicated people, well organized and progressive. Turkey reflects vision and mission. Youthful representatives satisfied the vision.

Faik Tunay, at 30 years, is the youngest parliamentarian for the The Republican People’s Party (CHP). The CHP is the oldest political party of Turkey and is currently the main opposition in the Grand National Assembly. Best described as a modern social-democratic party, it is faithful to the principles of Kemal Ataturk, the Party’s founder.

The deputy for Istanbul, member of the Foreign Affairs committee, speaks five languages, and has been invited by the Eisenhower Institute to visit America, In addition to being an elected member of the Grand National Assembly, he is involved in several family businesses and some of his own – construction, agriculture, advertising. His ambition – although born as a White Turk, a member of a privileged class, he wants to leave as a Black Turk, as a member of the masses.

The youngest member of the Turkish Grand National Assembly is only 27 years old, one of three members under 32 years of age. Bilal Macit represents an Istanbul district for the AKP, but insists he represents the state and not the civil authority, does not represent youth nor will limit his activities to youth policies. He has traveled widely, matured in a global world and learned to think independently. Cognizant that his Party’s leader changed politics, Parliamentarian Macit won’t allow his independent attitude to harm the Party. Surprisingly, he offered the opinion that youth does not represent the Arab revolutionary movements, suggesting the movements are more complex and widely distributed. The youthful parliamentarian attributes some of his success to his previous association with the Young Civilians, a movement he helped to found.

Young Civilians

Fatih Demirci, who graduated with a manufacturing system engineering degree and is now an Istanbul entrepreneur, is another 27 year-old founder of the Young Civilians and still an active member. At a dinner meeting, he explained the operations of the organization whose name indicates its thrust — contrasts to Kemal Ataturk’s Young Turks who led the 1908 revolution and the Young Officers who won Turkey’s independence.

Organization? The Young Civilians have no formal organization. Corresponding by Facebook, Twitter and other social networks, they gather compatriots at demonstrations. Their symbol is the sneaker, a sharp difference from the military boot that shaped the nation. Similar to America’s flower children of the 1960′s with a dash of France’s 1968 rebel Cohen-Bendit’s “Ask for the impossible,” the Young Civilians “demand the possible but perfect.”

They grimace at any military or nationalist demonstrations, such as the May 19 Youth and Sports Day national holiday. On that day, in 2003, the group organized its first gathering at Parliament to protest the style of the festivities and become known. They became well known, even internationally, with coverage by the New York Times. Reducing military appearance in social and political life, gaining equal rights for all forty-two ethnicities, and no-holds barred allowance for religious and national expressions dominate their thinking. Removing visa requirements and opening the border between Armenia and Turkey would please them.

Will the Young Civilians (who are growing older) be only a humorous irritant to Turkey’s elite or will it become a serious movement that contributes to all Turks embracing one another with equal expression, regardless of religion or ethnicity? Does the answer lie with the flowering of the flower children of the American 60′s, who became more conservative as they moved on in years?

The Young Civilians might already be superfluous. The Kemalism they want defeated and the military coup they fear are quickly being subdued with no appearance of immediate revival.

Kemalism

After Kemal Ataturk died in 1938, almost any government that threatened the principal tenets, the six arrows of Kemalism, triggered a military coup.

Republicanism–a broadly based republican system.
Nationalism–a distinctly Turkish identity
Populism–a more classless society
Revolutionism–wholesale, rather than gradual, change
Laicism-cancellation of the power of religion in the state, and
Statism–state-led development of the economy and society

were inviolate until the AKP gained power.

Prime Minister Erdogan’s instant and bold challenge in 2003 to the tenets of Kemalism did not provoke a military coup. Nevertheless, the military and allied Kemalists have been accused of preparing a conspiratorial response in 2007 that was uncovered in 2009.

Why did Erdogan proceed so boldly and why was it difficult for the military to instantly respond to the AKP’s removal of several of the six arrows of Kemalism from its quiver? AKP parliamentarian Bilal Macit explained; “Before 2002, the military exercised control of most facets of society except for the economic system. Their political and social control promoted economic stagnation and decline.” Erdogan’s deft handling of the economy apparently impressed much of the military to favor his administration.

Markar Esayan, editor of the independent Taraf newspaper, suggested that the Prime Minister correctly gauged a change in society and recognized he had wide support. The year 2002 is now a milestone in Turkish history – the year the military was no longer the principal authority.

Mesut Ulker, a former army colonel, presently a strategist for a think tank and a well-known television personality, added a simple comment: ‘The army has rapidly changed.”

Professor Dr. Yasin Aktay, Director of the Institute of Strategic Thinking, summarized the situation in a strategic context: “The shift of the population to urban areas created an expanding middle class with new social demands. The population requested an allocation of resources, a new identity and a new constitution. The ideological state (Kemalism) with its stress on Turkic identity and secularism created problems.”

Yusuf Acar, Zaman newspaper journalist and world news editor for magazine Aksiyon, echoed the decline of Kemalism and military domination. “Power has shifted to president office #1, Parliament as #2, and then the military. Nevertheless, the state still comes before the citizen.”

A journalist for Zaman, which has become one of Turkey’s principal newspapers, with a circulation of about one million, might be prejudiced in its observations. Yusuf Acar admits Zaman is often accused of being a government supporter and receiving assistance. However, except for sharing a state run television station and agency with the government, he denies the state has any involvement with the newspaper.

Ozcan Yeniceri, previously a university professor, and presently a parliamentarian for MHP (The Nationalist Movement Party) speaks passionately and in great length on all topics. By gaining 53 seats in the 2011 general elections, his Party remained the third largest parliamentary group. Previously characterized as an ultra-nationalist party, which has recommended martial law in Kurdish territory, the MHP has tempered its extremist views.

In Ozcan Yeniceri’s opinion, nationalism has ontological meaning, a striving for security, and struggle for independence. It unites the country against invading forces. He considers his Party is less nationalistic than that of President Obama and would not resort to the killing of leaders that Obama has done. (Evidently referring to the assassination of Osama bin Laden and NATO attempts on Moammar Gadaffi’s life.) “Liberal criticisms about the establishment of the Republic are wrong in the claim that Ataturk did not introduce democracy. Ataturk was a pragmatic and not actually a Kemalist. He understood the times and adapted. Turkey’s divisions have been between left and right with left defined as communist and right defined as capitalist. Now there is a rapid change in democracy in all areas with an increase in human rights.”

Kemal Ataturk’s framed portraits still adorn the walls of public sector rooms and halls. Gigantic banners and posters of his image are noticeable. Prime Minister Erdogan has wisely retained the reverence to Turkey’s George Washington but abruptly replaced Ataturk’s nationalist and statist policies with an agenda more compatible with the global system and more in harmony with democratic dictates.

Nevertheless, the AKP, despite its widespread support, still has severe antagonists. The charge of an ongoing coup against the government has resulted in mass arrests of well known public figures, has divided the National Assembly and disturbed leaders from several sectors of society. In mid-November 2011, after several judicial reviews and hearings, a 264-page indictment accuses 143 suspects, 66 of them in pre-trial detention, with an attempt to overthrow the government.

The indictments have provoked a question: Is Erdogan using tactics similar to those of the military forces, exaggerating threats to squash opposition? Will the trial of civilians and officers associated with Operation Sledgehammer destabilize the stable nation?

Operation Sledgehammer

Prime Minister Recep Tayyip Erdogan insists that nobody has been jailed in Turkey because of their profession as a journalist; only due to their membership in an illegal organization. Others are skeptical.

Markar Esayan and his independent Taraf newspaper received credit and fame for exposing the proposed 2007 coup, which had as objectives: undermine the stability of the AKP and create chaos. Esayan would not expose those who presented his newspaper with the documents, but insisted they were authentic and with signatures of known generals. He said plans had been made to bomb two major mosques in Istanbul, assault a military museum by people disguised as fundamentalists, and increase tension with Greece by instigating dogfights between the fighter planes of the two countries over the Aegean Sea. The allegations included shooting down a Turkish plane and blaming it on Greece. Subsequently, he said, prosecutors found supporting documents at military headquarters.

Faik Tunay senses that the revelations spurred citizens to support Erdogan and harmed opposition Parties. Although he believes the alleged coup plotters should be punished, he senses some plotters, especially journalists, have been accused only because of personal association with alleged plotters — guilt by association.

Zaman’s Yusuf Acar said that the “society did not accept reports of military intervention,” but after “armaments in a military home were found to match some terrorist activities, belief became widespread. Changes became apparent when the Prime Minister chaired the Military Council and the General Chief of Staff no longer stood at his side.”

Professor Dr. Yasin Altai claimed that the military often created problems to justify its existence. He has been spied upon and a file prepared on him. Now the civil can try the military.

All top generals, one of whom died, resigned. Some interpreted the resignations as an attempt to create anarchy, others as a protest to the arrests.

What seems to many as an obvious and serious plot against the government, which must be dealt with in a legal manner, is viewed by others as a bumbling proposal by a few who drew others in with arguments and not with definite alliances. All words and no action. So where is the plot?

The decline of Kemal Ataturk’s political course and weakening of the military dictates a new direction. Can that direction continue without a new constitution? What constitution? The subject is being vigorously debated.

The Constitution

A commission, composed of representatives from the three major Parties and a pro-Kurdish group, has been appointed to prepare a Draft Constitution. One limiting factor: each article must be approved unanimously, an impossible task. Without a new constitution, Kemalism cannot be entirely decomposed. Without a new Constitution, it is doubtful Turkey can gain admittance to the European Union.

The Young Civilians want a total change and absolutely new constitution. Bilal Macit noted that it is difficult to change the first three articles of the constitution; secular, socialist, modern. Article 4 of the present Constitution declares the immovability of the founding principles of the Republic defined in the first three Articles and bans any proposals for their modification. Regardless, Macit claims that no division exists between secularists and Islamists. Both want a pluralist society.

If the Constitution is modified, will it contain some references to Sharia Law? The Kemalists and western world have one question in common: To what extent is the AKP an Islamic Party?

The Islamic Party

A consensus rejects the AKP as an Islamist party. Nothing in its agendas, in its cabinet, and in its operations suggests a relation with an Islamic movement.

Nasuhi Güngör, columnist for the Star newspaper, said that the AKP “no longer represents Islamic identity,” and he should know. He admits that the Star, which has a moderate circulation of 130K daily, is owned by businessmen aligned with the government and, although critical at times, still close to the AKP. “Many AKP members practice Islam and believe that forward movement requires affiliation with Islam. However, they don’t go beyond believing that the Islamic religion can play a satisfactory role in society and wanting its adherents to be able to practice the religion in accord with their own rules.” One clue, Güngör noted, is that the AKP has not brought the wearing of the scarf issue to the table, perceiving it as human rights rather than religious issue. If the AKP raised the issue then it would be marked as an Islamic Party.

Although Turkey might not be considered an Islamic run nation, will its identification with the Islamic religion serve as a model for the newly liberated Arab nations?

Turkey as role model

The world expects the Turks to guide the Arab revolutions in the same direction as Erdagon’s movement. Consensus does not adhere to that theme and has Turkey envisioning itself only as another European a nation. Rather than being a role model, Turkey wants absolute friendship with Arab neighbors, a lack of which distracted the Ottoman Empire and impeded progress of the Kemalist programs.

Star Daily journalist Güngör, who is the newspaper’s expert on the Middle East, believes the Muslim Brotherhood in Egypt has close similarities to the incipient AKP, but has never governed and is 30 years behind the AKP operations. He declared that if any of the Islamic parties gain control in the Arab nations, and they have already in Tunisia and Morocco (whose Islamic Party is also named Justice and Development), that country will make a big mistake.

His views on Hamas and Hezbollah are sanguine. Both, he claims, are maneuvered by Iran and are too militaristic. Nevertheless, he recommends that Turkey continue its relationship with Hamas.

Zero problems with neighbors

As others have said: “Turkey’s pursuit of zero problems with neighbors has morphed into zero neighbors without problems.”

All commentators agreed that Turkey has failed in this pursuit. Turkey has problems with neighbors and this is partly due to its own initiatives and independent policies. PM Erdogan’s commendable moral imperative, which identifies friendship with moral agendas rather than with what one nation can do for the other, creates misperceptions and misconceptions.

Misperception of the moral imperative solicits charges of arbitrary judgment of others and intention to establish a neo-Ottoman agenda. Erdogan has a misconception that these policies can succeed in a world of mistrust and self-interest.

Trespassing on Iraq sovereignty by engaging in military attacks on Kurds in Northern Iraq, requesting the resignation of Syria’s President Bashar Assad, demanding Israel apologize for the killing of Turkish citizens during an attempt to break Israel’s blockade of Gaza, installing NATO missile radar detection equipment to deter Iran, and refusing to pay compensation to Bulgaria for Ottoman eviction of Bulgarians in eastern Thrace, are only a few examples of Turkey’s conflicts with neighbors.

MHP Parliamentarian Özcan Yeniceri described the policy. “Turkey previously consulted the Pentagon for regulating its relations with Iran, Russia and others. After the fall of the Soviet Union, everything changed, and this allowed Turkey to reach potential. Still, its relations with the U.S. hindered relations with neighboring nations.”

And a host of other problems: resolution of the Kurdish question, entry into the European Union, and engagement with Israel and its principal supporter.

The Kurdish

Strategists outside of Turkey consider the Kurdish insurgency as Turkey’s number one problem. Despite continuous attacks by the Kurdistan Workers’ Party (PKK), punishing government counterattacks, and arrests of suspected PKK associates, correspondents considered the Kurdish question to be a declining problem. They noted that the Kurdish population is no longer demanding separation, feel more Turkic and sense the government is addressing their grievances. Turkey’s minority of 20 million does not maintain a unique Kurdish language and many dialects are prevalent. As for the Kurds being an organized ethnicity with direct relations in several nations, the Turkish Kurds don’t directly relate to the Kurdish populations in the other nations of Syria, Iraq and Iran. Kurdish irredentism is irrelevant to Turkey’s Kurds.

No longer considered to be a military problem, the Kurdish situation is defined as a civil and human rights problem. Former army colonel Mesut Ulker expressed the opinion succinctly: “It is a civic problem that will be resolved in 2-3 years.”

MHP Parliamentarian Ozcan Yeniceri presented a more rigorous analysis: “One third of the population has Kurdish relatives, intermarriage between ethnicities is high, and Kurds are well integrated. The Kurdish independence problem appeared after the fall of the Soviet Union, when new states formed. Nationalist Kurds asked: ‘Why not a Kurd state?’

“The PKK thought that after reforms, the government would become weak, eventually collapse and the country would divide into several divisions. Demands for democracy and freedom are not essential for the Kurds. They are only a Trojan horse. Nevertheless, the government should acknowledge rightful claims, and the conditions of the Kurds are showing improvement. Demand for a separate Kurdish language to be used in all facets of everyday public life comes from the PKK movement. In response the government has granted a Kurdish language television station, which broadcasts cultural programs.” Dunya TV has a satellite channel, and a footprint that reaches to Kurdish speaking peoples in all adjacent countries.

Ozcan Yemceri believes in equal rights for all ethnicities and private courses for Kurds, in their own language, which the government now allows. He closed with a wry remark: “America might face similar problems with its own minorities,” evidently referring to the multicultural and multilingual aspirations of Hispanic groups.

Apparently, the Turks believe that as their democracy develops it will encompass all minorities and diminish ethnic demands for separation. Developments in the Balkans, Iraq and Spain have not substantiated that belief.

European Union

As a member of the European Customs Union, Turkey has common tariffs in trade with EU nations. Petitioning the European Union for complete admission has faltered. Now, observers note that due to the contrast between Turkey’s growth and strength and a weakening Europe, it might no longer be favorable to Turkey to become a EU member.

Parliamentarian Bilal Macit agreed: “It is not important.”

Dr. Burak Erdenir, Deputy Undersecretary at Ministry for EU affairs, disagreed.
Three reasons for his intransigence:

(1) As a member of the Customs Union, Turkey is part of the decision taking but not part of the decision making.
(2) The European Union has been incorrect in its behavior towards Turkey and that behavior must be corrected.
(3) The EU process is supported by all political Parties

Dr. Erdenir spoke frankly. “EU refusal to grant admission to Turkey is entirely due to prejudice. To achieve candidate status, 35 articles must be approved. Seventeen are constantly blocked. Although Bulgaria and Romania have been given admission, Turkey is refused. The EU believes Turkey is too big, too poor, and too Muslim. The Austrians in particular have a mindset that that equates today’s Turkey with that of the Ottoman Empire 18th century attack on Vienna.

“However, things have changed. Turkey has the sixth largest economy in Europe, 159 universities, and the most stable economy. The EU has lost credibility and behaves dishonestly.”

Israel and America

Commentators condemned Israel for its policies towards the Palestinians and criticized the United States for its support of Israel and for its other Middle East policies. From observations, Israel has little support in Turkey, regardless of Party affiliation.

CHP Parliamentarian Faik Tunay included discussions of U.S. foreign policy as one factor in his Party’s quarrelsome manner. Despite Erdogan’s angry attitude towards Israel, which he supports, he claims the U.S. supports the AKP. His validation – Due to the AKP government, demonstrations against U.S. involvement in Iraq were limited.

MHP Parliamentarian Özcan Yeniceri established Israel and its support by the United States as the prime foreign policy issues. “The American image is deteriorating internationally and includes instability within NATO, in which the US has played a key role. The direction of its fight with Radical Islam and Al Qaeda will soon include all Islam. The U.S. shouldn’t be a military empire, but should base policies on values. U.S. mentors have become the Evangelists and Samuel P. Huntington’s Clash of Civilizations.

The U.S. interfered in Iraq and now tries to restrict Iran in its developments. Unlike Iran, the U.S. has the nuclear weapon and has used it, signs of hypocrisy and loss of credibility. The same can apply to Israel. If the U.S. changed its policy in regard to Israel, the region will change drastically. The effort would be a game changer.”

Two industrialists, who manufacture food containers for export to European nations, posed a simple question: ‘Why can’t Israel be satisfied with its nation to the Green Line? Why is it constantly expanding?”

Economy

Officials from TUSKON, the Turkish Confederation of Businessmen and Industrialists Worldwide, which has offices in major cities worldwide, highlighted Turkey’s economic progress. Since the AKP achieved governance, GDP and exports have tripled, while the inflation rate has fallen from 30 percent to 7.5 percent. Unemployment, which had been 14 percent in 2010, has dropped to 9.5 percent. A GDP of 735 billion dollars places Turkey 17th in the world and 7th in Europe, excluding the Russian federation. An export driven economy has increased exports to 135 billion dollars.

All the statistics are moving in proper directions, and although the inflation rate, interest rate (6%) and unemployment are high by western standards, they are acceptable by Turkish standards. Actually, the real interest rate (interest rate minus inflation) is negative, a deflationary anomaly that was not explained, and could hinder investment. Another major concern is the monotonically increasing negative trade balance, which was 42 billion dollars (2010).

If a fall in the European economy intensifies the negative trade balance, negative real interest rate, and relatively high unemployment rate, Turkey’s growth could come to a screeching halt. The vigorous economy has fragile elements.

Conclusion

Few, if any world leaders, have received as much admiration from the domestic and international public as has Prime Minister Recep Tayyip Erdogan. His open manner, sincerity and moral challenges contrast with the covert, duplicitous and self subscribing attitudes of most world leaders. If his policies are out of step with most nations, they might prove that in the present global environment an independent course is a route to success.

• Europe’s and America’s economies falter. Turkey continues with rapid growth.
• Nations split apart from nationalism. Turkey enhances national identities.
• Western nations sanction Iran. Turkey increases trade with the Islamic state.
• Military control increases in most nations. Military control is constrained in Turkey.
• China and other fast growing nations pursue statist polices. Turkey eschews statism.

As in most nations, continued governing by the AKP depends upon the continued success of its economic policies. With Europe being the primary source for Turkey’s exports, a forecasted faltering of the European Market could drastically affect Turkey. Or will it? Is it possible that Erdogan’s pragmatism will lead Turkey to realign allegiances and markets and shift them to Iran and Russia, trading finished products for energy supplies? Turkey seems to be in the driver’s seat.

But not entirely. The AKP needs prosperity to advance democracy, which will enhance civil and human rights and prevent the electorate from considering Kemalism as an antidote for Turkey’s problems.

Kemalism will soon be proved as either past history or a spoke in the cycles of history. As the wheel turns, will Kemal Ataturk’s visions and policies return and challenge another Turkish Republic? The verdict is still not rendered.

I know. I lived through it on the Patriot Act. When Congress decided to squelch the truth about the CIA’s advance warnings about 9/11 and the existence of a comprehensive peace option with Iraq, as the CIA’s chief Asset covering Iraq, I became an overnight threat. To protect their cover-up scheme, I got locked in federal prison inside Carswell Air Force Base, while the Justice Department battled to detain me “indefinitely” up to 10 years, without a hearing or guilty plea. Worst yet, they demanded the right to forcibly drug me with Haldol, Ativan and Prozac, in a violent effort to chemically lobotomize the truth about 9/11 and Iraqi Pre-War Intelligence.

Critically, because my legal case was controlled by civilian Courts, my Defense had a forum to fight back. The Judge was an independent arbiter. And that made all the difference. If this law on military detentions had been active, my situation would have been hopeless. The Patriot Act was bad enough. Mercifully, Chief Justice Michael B. Mukasey is a preeminent legal scholar who recognized the greater impact of my case. Even so, he faced a terrible choice —declaring me “incompetent to stand trial,” so my case could be killed—or creating dangerous legal precedents tied to secret charges, secret evidence, secret grand jury testimony and indefinite detention—from the Patriot Act’s arsenal of weapons against truth tellers—that would impact all defendants in the U.S. Courts.

It was a hideous choice—The judicial farce was more ugly because it stamped me a “religious maniac” for believing in God—a ludicrous argument. It lined up beautifully, however, with Congress’ desire to bastardize the “incompetence” of Assets engaged in Pre-War Intelligence. Anything to escape responsibility for their own poor decision making.

To this day, it scorches my heart with rage and betrayal. It was unforgivable on so many levels.

And it had nothing to do with fighting terrorism. This was about fighting truth—and protecting powerful leaders in Washington determined to glorify themselves with phony patriotism and media fireworks in the War on Terrorism—a fantasy if there was one.

Those of us with the facts at our fingertips, who could expose leadership fraud and deceptions, had to be destroyed. I had three strikes against me. First off, I had personal knowledge of the CIA’s advance warnings about 9/11, and how Republican leaders thwarted efforts to preempt the attack. Secondly, I had direct knowledge of Iraq’s contributions to the 9/11 investigation, and how Republican leaders rejected financial documents on early Al Qaeda figures like Ramzi Youssef and Sheikh Abdul Rahmon of Egypt and Sheikh al Zawahiri—who replaced Osama bin Laden as Al Qaeda’s leader. That would have shut down the financial pipeline for terrorism, if Washington cared about results. Finally, my team had successfully negotiated a peace framework with Baghdad that would have achieved all objectives in Iraq without firing a shot.

Oh I was a threat to the Washington elite, no doubt. Without the Patriot Act, the Cover Ups of 9/11 and Iraq would have failed. Given normal due process, I would have shouted truth from the rooftops and exposed them all.

Let’s not mince words. Members of Congress who support laws like the Patriot Act and Military Detentions fear the American people deeply. They hate what America stands for. Above all they fear exposure of their mediocrity as our leaders. They are desperate to hide their leadership failures. And so they commit Treason against us— savaging the liberties enshrined in our Constitution to safeguard their access to power, weakening our ability to challenge them openly, building a society of fear.

They ply us with buzzwords—like “anti-terrorism” and “national security.” But they are the greatest threat facing our nation today. They are traitors among us.

Terrorism is a buzz-word to quiet outrage over this shredding of the Constitution. Most Americans don’t understand that the Patriot Act has expanded the scope of terrorism to cover any free political speech that challenges Institutions of Authority. Acts of violence are not necessary. The possibility that free speech could weaken public trust in leadership qualifies as the New Sedition. Any political speech that provokes the People to think and question authority can be squashed as a threat to political control.

I was no Traitor. My whole life was dedicated to non-violence. My bona fides in anti-terrorism were the best anywhere. I gave advance warning about the 9/11 attack, the bombing of the U.S.S. Cole in Yemen, and the 1993 World Trade Center attack. When the FBI cracked open my computer, they found proof that my team had run one of the very first investigations of Osama bin Laden in 1998, before the Dar es Salaam/Nairobi bombings. I started negotiations for the Lockerbie Trial with Libya, and preliminary talks on resuming weapons inspections in Iraq.

I was a very real threat, however. I was guilty of possessing inconvenient knowledge powerful enough to persuade voters to throw a lot of deceptive politicians out of Congress.

Military detentions would push America farther into the abyss. First, it eliminates the need for charges against political defendants altogether. And secondly, it transfers decisions about a defendant’s fate away from the oversight of a civilian Judge to a military Sentry and base commander. It’s a complete negation of the Courts.

At a practical level, there are consequences that Americans would never dream possible:

• There’s no requirement for Military Officers to acknowledge that a prison exists inside a military base. Nor can Military officers be compelled to identify individuals who might be detained on the base.

• There’s no guarantee an attorney would be assigned to the accused. Indeed, the Sentry and Commanding Officer would have full authority, individually, to decide whether attorney visits shall be allowed at all. Access to an attorney would be a matter of military discretion, including frequency and duration. The Military Commander or sentry could decide to prohibit an attorney from entering the base altogether, without specifying a reason.

This must be underscored. Civilian Judges provide a fail-safe for defendants under military auspices. Under the proposed law, that protection would be removed. The Commanding Officer of the military base would assume full authority of the Court. The accused inmate would have nowhere to protest any aspect of the detention, or to move towards resolution.

• Since the military alone decides who enters the base, the Sentry would have the power to reject visits by Family or Journalists, if they so choose.

• In straight violation of the 8th Amendment of the Constitution, accused civilians would be denied the right to petition for bail

• Military prisoners might have limited rights to send letters or make phone calls to family or attorneys, at the discretion of the Commanding Officer. The military would have the right to keep a defendant totally incommunicado from the world.

• An accused person would have no automatic rights to recreation outside of the cell. Prisoners could be locked in a 10 X 12 room 24-7, and denied the rights to exercise for one hour in a prison yard. That would be “indefinite,” too.

• Like Bradley Manning, they could be forced to sleep almost naked with the lights on, under 24 hour surveillance, even in the absence of suicide threats.

Don’t bother arguing about it. One of the high points of my legal drama occurred when my fantastic and beloved Uncle Ted Lindauer—a family member— who happened to have 40 years of senior legal experience— jumped into my legal fray in a Herculean effort to restore my freedom.

Three Times Tenacious Uncle Ted Drove 700 Miles (1,000 kms) in Each Direction—from southern Illinois to Fort Worth, Texas. He carried proper identification and proof of his legal standing. He was registered on my visitor’s list, and prison authorities understood that he was functioning as Co-Counsel for my Defense.

On the first and second visits, Ted Lindauer arrived on the weekend during normal visiting hours. Nevertheless, the Sentry swore up and down that there was no prison inside Carswell Air Force Base, and I was not an inmate—

Horrified, Ted Lindauer requested to speak with the Commanding Officer on duty.

Confronted with letters mailed from the prison and Court documents signed by Judge Mukasey, nevertheless, the Sentry and Commanding Officer refused to back down. Both stubbornly denied that I was housed anywhere on their military base.

On the second visit, the Sentry and Commanding Officer had a new excuse. Yeah, there was a prison on Carswell Air Force Base. But there were no visiting hours on weekends. Other prison families stood close by. One after the other, the sentry granted them access to the base to visit their relatives detained at the prison. Yet when Ted Lindauer, a 70 year old man with silver hair, stepped forward, the sentry guard refused.

Ted was furious. He warned the Sentry that my family knows some Generals, too! He insisted on the sanctity of my rights to attorney access, and promised to file a complaint with Judge Mukasey to compel the military to allow this attorney visit to occur.

Ted swore that he would return with U.S. Marshals. And by God, he was coming onto that base.

Thankfully, there was a civilian Judge to back him up. Judge Mukasey raised hell. On the third visit, he did indeed order U.S. Marshals to flank Ted Lindauer at the front gates of Carswell Air Force Base.

Judge Mukasey waited in his Chambers in New York ready to give the order. Only when U.S. Marshals stood before them, ready to forcibly enter the base, did Carswell back down. They stopped pretending there was no prison, that I was not an inmate, and granted my Uncle—a family member and attorney—access to his client.

It’s a cautionary tale. The military is not equipped to handle this type of responsibility. It flies against all of their structure. And it illustrates poignantly why a Civilian Judge is critical to protecting a defendant’s rights when the military has physical jurisdiction.

All of this was occurring at a critical juncture. At that moment, citing the Patriot Act, the Justice Department was arguing that I should be detained “indefinitely” up to 10 years—with no right to a trial or hearing. More horribly still, the Justice Department was demanding the right to forcibly drug me with Haldol—a rhinoceros tranquilizer—until I could be “cured” of knowing the real facts about Iraq and 9/11 and serious leadership failures in the War on Terrorism.

Witness had already told the FBI about my work as an Asset—and my team’s all important advance warnings about 9/11. The Feds understood very precisely what they were hiding—and who would be the losers in Washington, if my story was told.

Because I was denied the right to a hearing, I was blocked from providing that validation to the Court–or the American public—something Republicans on Capitol Hill feared desperately. Without a hearing, the Feds had free rein to savage my reputation with fantastic embellishments, portraying me as a religious maniac. (I freely confess that I have rock solid faith in God. However, the Justice Department played fast and loose with descriptions of my spirituality).

By the end of it, all of my Constitutional rights had been savagely violated— My 1st Amendment rights to freedom of speech and religion; my 4th Amendment protections against illegal searches of my home; my 5th Amendment rights not to be forcibly interrogated by surrogates for the prosecution; my 6th Amendment rights to a speedy trial by a jury of my peers, with the rights to face my accusers and rebut accusations in a public Court of law. The Justice Department even violated my 8th Amendment protections against threats of torture, (forcibly drugging definitely qualifies).

To this day, I cannot believe such abuse could be possible in the United States. I’m a fighter, and I could not stop them. All the Constitutional protections that should have saved me were stripped away. It horrifies me.

No American really understands the preciousness of Liberty until more powerful individuals in the government fight to take away those rights. Then in a blinding flash, you are awed by the magnificence of the Founding Fathers’ vision. What they gave us was extraordinary. It must be protected from tyrants like those in Congress today. They are tyrants who fear and despise us. There is no ambiguity. They are against us.

President Obama must veto this bill or confess his hypocrisy as a champion of liberty. And members of Congress who support military detentions or the Patriot Act must be targeted for defeat in 2012.

They are the greatest threats facing this country today.

They are traitors to freedom. They are Enemies of the Constitution. And they deserve to be branded Enemies of the State.

They lose popular appeal and support or never expand beyond a small early group of supporters.  The nation and many supporters move on.  Other movements grab the interest of the most informed, dissident-type people seeking truth, justice or change.  A good example of such a failed contemporary movement is the 911 truth effort.  The groups, websites and true believers keep on pushing their objectives a decade after the historic event.  But the goal of revealing what really happened that the official government story does not divulge is like a moldy piece of forgotten food in the refrigerator.

Movement death by inattention happens despite good resources, charismatic leaders and even great organization and communication skills.  Critical mass of public support simply never materializes, in large measure because diverse segments of the population never buy into the central arguments of the movement.  The Internet is littered with websites of activist groups that persist despite clear evidence of decay and wide disinterest.  True believers have a mission in life tied to their egos that prevent them from admitting defeat.  They do not move on.

The biggest mistake that passionate advocates for a cause make is overestimating their ability to reach critical mass and underestimating the competition of other movements with greater appeal which rob them of both attention and supporters.

Make no mistake; I totally and enthusiastically support the Occupy movement because it offers the prospect of producing reforms to fix our broken government and attracting very wide public support for a nonviolent Second American Revolution.  What worries me, however, is that many of its participants seem over confident, as if they cannot fail.  On the other hand, I have become impressed by a convergence of thinking about what the next big step for the Occupy movement can and should be.  I will briefly identify examples of this convergent thinking.

Canadian author Erich Koch has written a compelling article: An Objective for the U.S. Occupy Movement: A Constitutional Convention.  He buys into the view that the Occupy movement could embrace the thinking of Harvard Professor Lawrence Lessig who has presented the case for amendments to fix Congress.  Like others Koch is correct in saying that “No one in the movement would disagree with its main point: the fundamental problem is the corruption of Congress.”  Unlike others, Koch recognizes the path for obtaining reform constitutional amendments is using the provision in Article V for a convention of state delegates, having the same power as Congress in proposing amendments that still must be ratified by three-quarters of the states.  It has never been used despite many hundreds of state requests for a convention because, clearly, Congress and most status quo forces fear such a convention.

Koch cited a great article by Alesh Houdek: Has a Harvard Professor Mapped Out the Next Step for Occupy Wall Street?  Most is a review of Lessig’s book.  Correctly noted about using the convention option is “it bypasses the usual means of reform (Congress, presidential elections, etc.) which the lobbyists and other interested parties have learned so well to manipulate. And lastly, such a convention would be free to propose solutions that would otherwise be subject to be stricken as unconstitutional by the Supreme Court.”  This is critical to understand.  Houdek concludes: “Properly presented, the strategies and aims of Lessig’s book could make it the handbook the protesters have been looking for — and provide a pathway for them to ride out the winter ahead.”

Dan Froomkin also has presented the same case in: Lawrence Lessig’s New Book On Political Corruption Offers Protesters A Possible Manifesto.  He quoted what Lessig himself had said in an article about the Occupy movement and the concern that I share, namely that the Occupy movement “will become too diffuse and not focused” on the root issue of corruption of government.  And that the movement will only grow “if a wide range of people can be part of it.”  This requires coalescing around an issue “as fundamental as the corruption of the system.”  Only a constitutional amendment can fix the corrupting impact of money in politics.  This is also the focus of Dylan Ratigan’s fine effort, except that the use of the convention path has not been emphasized.

A specific call for an Article V convention was made by the pro-Occupy US Day of Rage group: “We are organizing a coordinated national campaign at local and state levels, including where necessary the occupation of state capitols, in order to demand an article V constitutional convention be called to restore representative democracy to our nation.”  A set of specific reforms to be fix the corruption-money problem are presented.

The 99 Percent Declaration group has also presented an important statement centered on the call for a National General Assembly, where delegates would formulate a petition of a list of grievances that would be delivered to the main parts of the federal government on behalf of 99 percent of Americans.  A suggested list of grievances includes the need for constitutional amendments to achieve solutions, but only for a few of the issues.  Not explicitly acknowledged, however, is that constitutional amendments, not ordinary laws, would be necessary for other solutions, such as term limits for Congress and abandoning the Electoral College.  Moreover, there is no specific recognition that serious amendment reforms will not be proposed by Congress, and that an Article V convention is needed.  Inattention to method was also the shortcoming of a similar list of solutions by Ralph Lopez.

Author Scott Turow has presented: How Occupy Wall Street Can Restore Clout of the 99%.  His recommendation to the Occupy movement is “work across the nation for a constitutional amendment requiring Congress to regulate the expenditure of private money on elections.  … The best antidote to this imbalance of income and influence would be to greatly reduce the role of private funding in our elections.  …As for the Occupy Wall Street movement, it has been criticized by some for not having a realistic agenda, even though polling shows that millions of Americans, including me, are sympathetic to the basic message of the protests.”  His prescription: “rally around a single goal and reinvigorate their movement.”  Fine, but missing from his analysis is the recognition that Congress will never propose reform amendments, only an Article V convention will do the job.

This sampling of recent writings clearly shows convergent thinking that the Occupy movement can and should focus on key reform constitutional amendments and, second, that some better informed critical thinkers recognize, this requires advocacy for using the Article V convention option that Congress has refused to honor.

As to Occupy movement success, I want again to emphasize that there is always competition for the attention and support of concerned Americans who recognize how broken our system is.  In particular, the well financed Americans Elect effort is impressive.  Because it is offering an alternative path to nominating a presidential candidate in 2012, over 2 million Americans have already signed up to be delegates for a web convention, with millions more very likely as the mainstream media keeps giving this effort attention.  The Get Money Out campaign has over 250,000 signatories.

Disgust with the two-party plutocracy is surely shared by Occupy participants and supporters.  But for movement success based on enticing many millions of Americans, the Occupy movement cannot ignore competition such as Americans Elect.  This means that the Occupy movement must explicitly start making the case to the broad public why their effort can achieve more of what is needed.  This is easily done.

Here are some key concepts that the Occupy movement could use.  No matter who is nominated by Americans Elect, the odds are that either the better financed Democrat or Republican candidate will win the presidency.  This may just require spending even more millions of dollars on campaigns.  And whoever is nominated by the group will likely be strongly linked to one of the two major parties, rather than some courageous reformer and enemy of the status quo.  Moreover, this group does not offer a realistic path to getting the key reforms of the system that most of us see critically needed, such as constitutional amendments, already recognized by many Occupy supporters.

A sign of trouble for the Occupy movement is a recent national poll that found: “In the latest survey, 33 percent voiced support for Occupy Wall Street, down from 35 percent in a previous poll, while opposition to the movement climbed from 36 percent to 45 percent. Twenty-two percent were unsure.”  These results are worse than earlier polls.  From the left, Chris Bowers commented: “the decline in Occupy Wall Street’s image is probably more connected to the increasingly negative coverage of the clashes between protesters and police than it is to declining support for movement’s message.”  Now is the time to move the message from what is wrong to solutions, using an Occupy Congress approach.  Otherwise, this view from the conservative right might prevail: “OWS will linger … but I’d argue we’ve seen the movement’s high tide. It will now recede into a mere annoying shadow of itself as support is withdrawn by political figures and organizations.”

True, Occupy movement success is not inevitable.  The movement must better define what success means and how it can be achieved if it is to attract and keep the support of many millions of Americans.  It needs specificity for its solutions that ordinary Americans can relate to.  Never underestimate the power and commitment of status quo forces to maintain control over the political, government and economic system that has so harmed most Americans.  The fight against the Occupy movement mostly seen as local police violence against peaceful demonstrators and protesters as well disinformation from some news outlets and pundits are nothing compared to what could be mounted if the movement is viewed as more threatening to the status quo delusional democracy with its delusional prosperity.

According to Wikipedia, the Free Encyclopedia, September 28, 2011, “Richard Allen Posner” is “an America jurist and legal theorist who is currently a judge on the United States Court of Appeals Judge for the Seven Circuit in Chicago and a Senior Lecturer at the University of Chicago Law School. He is an influential figure in the law and economics school of thought. Posner has been called ‘the world’s most distinguished legal scholar.’ He is the author of nearly 40 books on jurisprudence, legal philosophy, and several other topics, including The Problems of Jurisprudence, Sex and Reason, Overcoming Law, Law, Pragmatism and Democracy, and The Problems of Moral and Legal Theory. The Journal of Legal Studies has identified Posner as the most cited legal scholar of the 20th century, and a 1999 New York Times article identified Posner as one of the most respected judges in the United States.”

In the first sentence of his book How Judges Think (Harvard University Press, 2008), Justice Posner says, “Traditional legal thinkers are likely to say that if legalism (legal formalism, orthodox legal reasoning, a ‘government of laws not men,’ the ‘rule of law’ as celebrated in the loftiest Law Day rhetoric, and so forth) does not exist everything is permitted to judges—so watch out! Legalism does exist, and so not everything is permitted. But its kingdom has shrunk to the point where today it is largely limited to routine cases, and so a great deal is permitted to the judges. Just how much is permitted and how they use their freedom are the principle concerns of this book.” On page 369 Posner concludes, “So judging is political.”

Constitution, Article VI, ¶2. “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” Article VI, ¶3. “The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.”

Judges are not to invent law but rather to apply law. The politicians invent it. That’s how a constitutional democracy works when it works. But apparently an eminent judge openly can say and, remain celebrated after having said it, that judges think politically when making decisions, even though the principle of constitutional supremacy upon which constitutional democracy is based requires the application of the constitutional truth to affairs absolutely without regard for the political consequences, those being a matter for the People to address by amending their constitution or for the politicians when drafting the laws.

How can lawyers’ minds accommodate such double think? Well, consider the modes of analysis identified by “Laurence Henry Tribe” of whom Wikipedia, September 28, 2011, says:

[He is] a professor of constitutional law at Harvard Law School and the Carl M. Loeb University Professor at Harvard University. He also works with the firm Massey & Gail LLP on a variety of matters. Tribe is widely recognized as a leading liberal scholar of constitutional law. He is the author of American Constitutional Law (1978), a treatise in that field, and has argued before the U.S. Supreme Court 35 times. Tribe was born in Shanghai to parents of Eastern European Jewish descent. He attended Abraham Lincoln High School in San Francisco, California. He holds an A.B. in mathematics, summa cum laude from Harvard College (1962), and a J.D., magna cum laude from Harvard Law School (1966), where he was a member of the Harvard legal Aid Bureau. Tribe was a national champion policy debater at Harvard, and later a college coach and high school summer institute teacher. Tribe served as a law clerk to Matthew Tobriner on the California Supreme Court from 1966–67, and as a law clerk to Potter Stewart of the U.S. Supreme Court from 1967–68. He joined the Harvard Law School faculty as an assistant professor in 1968, receiving tenure in 1972. In addition to his record as a scholar, Tribe is noted for his extensive support of liberal legal causes. He is one of the co-founders of the liberal American Constitution Society, the law and policy organization formed to counter the conservative Federalist Society, and is one of a number of scholars at Harvard Law School who have expressed their support for animal rights. He has argued many high-profile cases, including one for Al Gore during the disputed U.S. presidential election, 2000. The U.S. Supreme Court ruled against Tribe’s client in Bowers v. Hardwick in 1986, holding that a Georgia state law criminalizing sodomy, as applied to consensual acts between persons of the same sex, did not violate fundamental liberties under the principle of substantive due process. However, he was vindicated in 2003, when the Supreme Court overruled Bowers in Lawrence v. Texas. He wrote the ACLU’s amicus curiae brief supporting Lawrence, who was represented by Lambda Legal. Tribe also represented General Electric in its defense against its liability under Comprehensive Environmental Response, Compensation and Liability Act (‘Superfund’), in which GE and Tribe unsuccessfully argued that the act unconstitutionally violated General Electric’s due process rights. He actively supported the candidacy of President Barack Obama and described Obama as ‘the best student I ever had,’ a phrase he also used to describe Kathleen Sullivan. Alongside Harvard’s Cass Sunstain, Tribe served as judicial adviser to Obama’s campaign. In February 2010, he was named ‘Senior Counselor for Access to Justice’ in the Department of justice. He resigned this position, citing health reasons in November 2010. In 2004, Tribe admitted that material he published in 1985 was closely similar to material originally published by Henry J. Abraham in 1974. Some sentences were identical. After an investigation headed by former Harvard President Derek Bok, Tribe was reprimanded by Harvard President Lawrence Summers and Law School Dean Elena Kagan for ‘a significant lapse in proper academic practice’, but they concluded that Tribe’s error was unintentional.

What a curriculum vitae! In his chapter entitled “The Variable Role of Interpretive Judicial Precedent” in The Invisible Constitution (Oxford University Press, 2008), Tribe says:

Thus, although it may seem counterintuitive, the great difficulty of formally amending the Constitution to overturn a Supreme Court interpretation of its meaning, something our nation has done just four times in its history, in contrast to the relative ease of formally amending an act of Congress for such a purpose, has led to a practice in which judicial interpretations of the Constitution tend—with the exception of certain ‘superprecedents’ of the sort we will shortly encounter—to be more amendable than judicial interpretations of federal statutes to revision in subsequent judicial decisions. Although a handful of Supreme Court decisions have attained status as ‘superprecedents’ that it would be unthinkable for any subsequent Court to overrule virtually no Supreme Court ruling besides Brown—with the possible exception of the decision that is regarded as having permanently established the power of judicial review, Marbury v. Madison—has achieved a status essentially comparable to that of the Constitution itself.

Marbury v. Madison, 5 US 137, 163, 177-78 (1803) famously settled, “The government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right.… [And] It is emphatically the province and duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each. So, if a law be in opposition to the Constitution, if both the law and the Constitution apply to a particular case, so that the Court must either decide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law, the Court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. If, then, the Courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the Legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply. Those, then, who controvert the principle that the Constitution is to be considered in court as a paramount law are reduced to the necessity of maintaining that courts must close their eyes on the Constitution, and see only the law. This doctrine would subvert the very foundation of all written constitutions.¹

In spite of Marbury v. Madison, The Invisible Constitution’s chapter entitled “Organizing the Constitution’s Dark Matter” explains that just as the physical universe is 95% dark matter and energy about which humans little, so also is the Supreme Court’s interpretation of the constitution dark. Tribe says:

THAT THERE IS MORE ‘out there’ than is encompassed in constitutional text, and that much of what is out there nonetheless counts as part of our Constitution, now seems plain enough. What remain to be addressed are the processes by which we might best visualize and articulate the rules, principles, and rights that are part of our Constitution but are not discernable in or directly derivable from portions of its text.…I would identify six distinct but overlapping modes of construction in forming the invisible Constitution: geometric, geodesic, global, geological, gravitational, and gyroscopic.…Here are my drawings—one for each of the six ways of constructing the invisible Constitution—presented as I created them rather than in a professional rendition, in the belief that any reduction in clarity will be more than offset by the gains in vibrancy and immediacy.²

TO WIT:






It is no wonder the constitution is a field of dark matter encased in dark energy, dare one say the natural complexion of unconstitutional empire, since while thinking politically the judges are interpreting the constitution and the statutes not on the basis of what their words say but instead on the basis of Tribe’s modes of judicial construction: I Geometric Construction, II Geodesic Construction, III Global Construction, IV Geological Construction, V Gravitational Construction and VI Gyroscopic Construction.

An unconstitutional empire has displaced the constitutional democracy due to the chicanery of “how judges think.” They abrogate the principle of constitutional supremacy that is the sine qua non of constitutional democracy. In consequence constitutional democracy’s supreme law of peace based upon respect for the territorial sovereignty of foreign Nations and Indian tribes as implemented by the commerce, defence and treaty clauses is superseded by their unconstitutional empire’s diametrically opposed policy of perpetual wars based upon contempt for their territorial sovereignty.

Judicial thinking needs to re-start where it left off in 1871, at the end of the era 1789-1871 when the words of the constitution and the statutes whose compliance judicially is being measured are what the judges read. For construction they make do with a good dictionary ready to hand. The construing of the straightforward language employed by the constitution’s draftsmen in 1789 was basically finished before 1871, in which year the Appropriation Act of 1871 purported to abrogate Indian tribal sovereignty without troubling to comply with Article V, the Amendment Clause, for which reason the statute patently is null and void ab initio.

Correspondingly the tribes rely upon the constitutional protection of Indian tribal sovereignty as it was in 1871 and remains today, and seek a declaration from the Supreme Court of the United States as the constitutionally stipulated independent and impartial third-party adjudicator constituted by Article III, §2, ¶2, the Original Jurisdiction Clause, specifically for the resolution of territorial sovereignty and boundary disputes “with foreign Nations, and among the several States, and with the Indian Tribes.” That clause recognizes that when sovereign bodies politic dispute the court system of each is disqualified from adjudicating since none is a third-party to the dispute. In contrast the Supreme Court is beholden to no one of the disputants, deriving its jurisdiction not by grant from any of them but rather directly from the constitution itself which is beyond the legislative reach of any.

But is the judicial branch’s obstruction and ignoring actually a crime and if so is it Treason? If war and genocide in consequence of war are criminal then causing those crimes is itself a crime. War itself is constitutionally beyond the power delegated to the government except in self defence to repel an invasion, and no Indian tribe or foreign Nation currently is an invader of the United States or any of its allies Canada, France, Netherlands, Portugal, Spain, Russia, United Kingdom and United States. Yet war and genocide by the American empire is normal and prevalent all round the globe. But still, is it actually criminal in addition to being unconstitutional?

Article III, §3, ¶1 enacts, “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.” An ordinary reading of “levying War against them” means an invasion by force of arms. The Court Clerk and the Judges of the Supreme Court of the United States do not invade the United States, only Indian tribes and foreign Nations. So the phrase “levying War” is not relevant. What about “adhering to their Enemies, giving them Aid and Comfort?”

Certainly, if the word “Enemies” subsumes persons who swear or affirm allegiance to the constitution pursuant to Article VI, ¶¶2&3, but then obstruct and ignore the constitutional question of jurisdictional law alone of Indian tribal sovereignty to evade having to declare unconstitutional and void the Appropriations Act of 1871, 25 USC §71¶1 and 28 USC §1251¶(b)(1), then the Judges are “Enemies.”

Certainly they give “Aid and Comfort” to the unconstitutional empire in whose nature and character it is to commit war and genocide against Indian tribes and foreign Nations, for the economic advantage of confiscating their lands and resources. Since the life of the unconstitutional empire depends upon the death of the constitutional democracy, the judicial blindness is of mortal consequence.

So all in all it appears causing unconstitutional war and genocide is a crime; the crime is Treason and, last and most important, the judges can exonerate themselves by and only by voluntarily ceasing to be political in the performance of their judicial duty to uphold the constitution. This has nothing to do with prosecuting Clerks or Judges. Prosecution is about punishment and what matters is not vengeance for what is past, but prevention for the future.

The Judges are the only ones who can achieve prevention without violence. A jurisprudential revolution can prevent war and genocide simply by thinking judicially instead of politically. Specifically, the Mahican and Mi’kmaq Tribes seek a simple declaration the Appropriation Act of 1871 is ultra vires [beyond the constitutional jurisdiction delegated by] the defence, commerce and treaty clauses and their precedents. Such as this is precisely the purpose of the Constitution’s original jurisdiction clause that vests exclusively in the US Supreme Court the independent and impartial third-party court jurisdiction. It is the only court whose jurisdiction is beyond the power of any of the competing sovereign governments, precisely because it is the only constitutional court. Every other court labors under a conflict of interest that disqualifies it due to apprehension of bias in favor of its own government. Only the US Supreme Court is a creature of no government.

But in order to permit the Justices to fulfill their duty it is first necessary to remove the Clerk from office for refusing to do his duty. He wilfully obstructs the constitutional challenge to the Appropriation Act of 1871, 25 USC §71¶1 and 28 USC §1251¶(b)(1) on the ground of that legislation is immune from being constitutionally challenged. The Clerk is taking it upon himself to overrule Marbury v. Madison by permitting a federal statute to exempt itself from constitutional compliance. And that, precisely, is what Marbury v. Madison identified as, “This doctrine would subvert the very foundation of all written constitutions.”

The Clerk’s obstruction of the Indian sovereignty case also aids and abets the unconstitutional empire’s wars and genocides in abrogation of the sovereignty of foreign Nations. The War Powers Act of 1973 does the same with regard to foreign Nations as the Appropriation Act of 1871 does with regard to Indian tribes. Both manifestly and equally breach the commerce, defence and treaty clauses and their constitutive precedents. Both are justified if at all upon willfully reading the commerce clause jurisdiction to regulate trade “with” those entities as if it means a “plenary power” “over” them. The blindsided commerce, defence and treaty clauses and their precedents put paid to that nonsense, which no doubt is why the Clerk is stonewalling the Indian Case based entirely upon that law alone.

The Clerk’s obstruction of the constitution establishes the ascendancy of the unconstitutional empire of war and genocide over the constitutional democracy of peace and goodwill. The full name of the blocked Case is Mahican Tribe and Rick Vanguilder and Mi’kmaq Tribe and Gary Metallic v. Canada, France, Netherlands, Portugal, Spain, Russia, United Kingdom and United States. It can be examined at mightisnotright.org/ and the tribes’ Letter for the Removal of the Clerk is Document 19 of the Case Court Documents at that website, or can be viewed at the Internet link Supreme Court re Court Clerk.

1. p. 15, 19.
2. p. 155.

The state’s Sunshine Act [65 Pa.C.S.A §701–710] requires all public bodies to publish notices at least 24 hours before their meetings. The purpose is to eliminate secret meetings. Penn State, a private university, which received $279 million from the Commonwealth for its 2011–2012 budget, is bound by the Sunshine Act.

A public notice did appear in the Centre Daily Times, State College’s hometown newspaper, three days before a regularly-scheduled board meeting, Friday November 11. But the Trustees were caught flat-footed the week before by what eventually turned into the largest scandal in its history. These are events the Trustees should have been aware of for at least two years; certainly, the Board should have known there was a problem when the Harrisburg Patriot-News broke a story in March that the Grand Jury was investigating former defensive coordinator Jerry Sandusky.

But, based upon Board incompetence, there wasn’t even a crisis management plan in place when Sandusky was arrested November 5, and Athletic Director Tim Curley; and Gary Schultz, senior vice-president of finance and administration, were charged with perjury and failure to report a crime to police. The Trustees allowed Curley to take an administrative leave, and Schultz to return to retirement. Schultz, who had worked for Penn State for 40 years, had retired in 2009, but had been brought back on an interim basis in July. Both Curley’s and Schultz’s decisions were probably influenced by the Board demands.

During the two weeks, beginning November 5, the Board had conference calls, executive sessions, and emergency meetings, all without public notice.

Conference calls involving a quorum without public notice aren’t allowed. At least one conference call was conducted on Saturday, November 5. A meeting by telephone is just as illegal as a meeting with all persons at a table if it isn’t publically announced.

Several emergency meetings were held the next few days. The Sunshine Act allows emergency meetings. The Trustees conducted meetings Sunday, November 6, Monday, November 7, and Wednesday, November 9. By law, an emergency meeting can be called, without public notice, only for “the purpose of dealing with a real or potential emergency involving a clear and present danger to life or property.” [65 Pa.C.S.A §703] Even in the wildest stretch of that definition, there was no clear and present danger. That occurred years ago when the university didn’t contact police to report the actions of a man believed to be a child molester.

Executive sessions to discuss personnel issues and some other items are allowed—if they are announced at public meetings “immediately prior or subsequent to the executive session.” [65 Pa.C.S.S. §708(b)] But they were not. About 10 p.m., November 9, following an emergency meeting, Board vice-chair John P. Surma, flanked by 21 of the 31 trustees, publicly announced it had fired Paterno and PSU president Graham Spanier. Surma told the media the decision was unanimous, thus indicating a vote was done in secret and not under public scrutiny as required.

The Trustees also violated both Paterno’s and Spanier’s rights under law. It’s doubtful the Board members, most of them in corporate business, even care. How they handled Paterno’s firing is indicative they have little regard for employee rights and due process. Paterno had previously said he would retire at the end of the season, since he believed, “the Board of Trustees should not spend a single minute discussing my status. They have far more important matters to address. I want to make this as easy for them as I possibly can.” The Trustees, undoubtedly, believed firing Paterno immediately would take heat off the university. Again, it was wrong.

Although executive sessions may be conducted in private, the Sunshine Act requires that “individual employees or appointees whose rights could be adversely affected may request, in writing, that the matter or matters be discussed at an open meeting.” [65 Pa.C.S.A. §708(a)(1)] The Board, according to a report in the Easton Express-Times, had ordered Spanier to resign or be fired. He chose to resign. Paterno was not contacted by the Board prior to termination, either to request to be heard or to request an open meeting. Paterno was informed of his termination by a hand-delivered letter that demanded he place a phone call to a board member. There was no indication in that letter of what the Board’s decision was.

Violating the law could result in invalidating decisions made at those meetings, and penalties of $1,000 for each violation; until September, the penalty had been a paltry $100. But here’s a nice twist. The Trustees probably don’t care.

A district attorney must approve prosecution for Sunshine Act violations. Although the Pennsylvania Newspaper Association receives about 1,000 inquiries about what may be Sunshine Act and Right-to-Know law violations each year, “it’s rare for criminal prosecutions of the Sunshine Act,” according to Melissa Melewsky, media law council for the PNA. Civil actions by individuals are likewise difficult to pursue because of significant costs.

Here’s another surprise. Because of heavy lobbying to the legislature, whose members are feasted at one home game a year and can also receive comp football tickets to other home football games, Penn State is not bound by the state’s Right-to-Know law. This means that innumerable records, including minutes of all meetings— both public and those that are illegal under the Sunshine Act—can still be secret.

Here’s something not so surprising, however. Penn State’s Public Affairs office punted all questions to the Board. The Board arrogantly has refused to answer both verbal and written questions. However, possibly using public funds, it did hire a PR firm to handle crisis management issues. We won’t know the cost—that’s something it doesn’t have to tell the taxpayers.

• Assisting on this story was Melissa Melewsky, media law counsel of the Pennsylvania Newspaper Association.

Under “transparency president” Barack Obama, the U.S. government initiated a criminal probe of the organization after the site began releasing a virtual tsunami of confidential military and State Department files.

In the last two years alone, WikiLeaks revealed that the United States had committed grave war crimes in Afghanistan, Iraq and other global hot-spots of interest to America’s resource-grabbing corporate masters.

This year’s release of 779 classified dossiers on prisoners housed at the Guantánamo Bay prison gulag fleshed out the public’s knowledge of ongoing torture programs run by the military and the CIA under cover of it’s murderous “War on Terror.”

But it was their publication of some 250,000 secret State Department cables which sparked a new round of hysterical denunciations in Washington culminating in the witchhunt against Julian Assange and WikiLeaks supporters, a demonization campaign aided and abetted by U.S. financial institutions such as Bank of America and Pentagon cyberwar contractors.

Cable after cable revealed “the extent of US spying on its allies and the UN; turning a blind eye to corruption and human rights abuse in ‘client states’; backroom deals with supposedly neutral countries; lobbying for US corporations; and the measures US diplomats take to advance those who have access to them.”

Leading politicians, including Vice President Joe Biden and Senate Minority leader Mitch McConnell have called the web site’s founder a “high-tech terrorist,” and commentators such as right-wing Washington Times columnist Jeffery Kuhner and others have demanded that Assange and his co-workers be treated “the same way as other high-value terrorist targets.”

The Obama administration, loathe to pursue criminal probes of the previous regime’s lawbreaking, the better to immunize themselves over their own contemporary lawless acts, including the torture of prisoners at Bagram Airbase, clandestine CIA drone killings and the due process-free assassination of an American citizen who was never charged, let alone convicted of a crime, was up to the challenge and empaneled a grand jury in Alexandria, Va.

And when Justice Department inquisitors first sought to seize the activist’s information, in keeping with the new “Washington consensus” that constitutional rights are nothing more than empty platitudes duly trotted out on national holidays, they demanded that Twitter turn over the files without benefit of a warrant.

American Civil Liberties Union staff attorney Aden Fine denounced the ruling. “Internet users don’t automatically give up their rights to privacy and free speech when they use services like Twitter,” Fine said.

“The government shouldn’t be able to get this kind of private information without a warrant, and they certainly shouldn’t be able to do so in secret. An open court system is a fundamental part of our democracy, and the very existence of court documents should not be hidden from the public.”

According to the ACLU, it wasn’t only Twitter that was served with record demands by the Justice Department. “Based on the file numbers that have been created, it appears likely that there are additional orders whose existence remains secret.”

The public first became aware of the government’s fishing expedition only because Twitter informed the three activists, Jacob Appelbaum, a founding member of the online anonymity network, Tor Project, Rop Gonggrijp, a founder of the Dutch web portal XS4ALL and Birgitta Jónsdóttir, a left-wing member of Iceland’s Parliament.

As Antifascist Calling reported in March, Jónsdóttir was specifically targeted for her role in helping WikiLeaks release the Collateral Murder video last year.

That scandalous video exposed the wanton slaughter of a dozen people in the Iraqi suburb of New Baghdad, including two Reuters photojournalists, by a U.S. military Apache helicopter crew. Two children were also seriously wounded in the unprovoked attack.

The Army’s thrill-kill gun camera video wasn’t concealed from the public because of any alleged threat to “national security” or to protect intelligence “sources and methods,” standard boilerplate used to hide war crimes by the U.S. Empire, but precisely to cover-up imperialism’s murderous rampage that helped “liberate” Iraqis of their lives.

Commenting on the ruling, Jónsdóttir told The Guardian, “This is a huge blow for everybody that uses social media. We have to have the same civil rights online as we have offline. Imagine if the US authorities wanted to do a house search at my home, go through my private papers. There would be a hell of a fight. It’s absolutely unacceptable.”

Unfortunately, under Section 213 of the oxymoronic USA Patriot Act, which was not subject to a “sunset” provision of the constitution-shredding legislation, FBI agents can do precisely that and obtain so-called “delayed notification” warrants for the search and seizure of evidence of any federal crime, not only those related to “terrorism” investigations.

Called “sneak and peek” searches, federal snoops are permitted to clandestinely seize property or conduct electronic searches on a home computer if a court deems such seizures “reasonably necessary.” Indeed, notification of a covert FBI home invasion “may thereafter be extended by the court for good cause shown.”

The sweeping ruling by Judge Liam O’Grady upheld demands by U.S. investigators that they should have virtual free-reign to pillage private records related to the users’ IP address, the unique identifier used by a computer or hand-held device to log onto the internet.

According to the Electronic Frontier Foundation (EFF) who represent Jónsdóttir along with American Civil Liberties Union attorneys, O’Grady “also blocked the users’ attempt to discover whether other Internet companies have been ordered to turn their data over to the government.”

“When you use the Internet, you entrust your online conversations, thoughts, experiences, locations, photos, and more to dozens of companies who host or transfer your data,” EFF Legal Director Cindy Cohn said.

“In light of that technological reality, we are gravely worried by the court’s conclusion that records about you that are collected by Internet services like Twitter, Facebook, Skype and Google are fair game for warrantless searches by the government.”

Among other things, O’Grady wrote in his 60-page decision that “the information sought was clearly material to establishing key facts related to an ongoing investigation and would have assisted a grand jury in conducting an inquiry into the particular matters under investigation.”

O’Grady, appointed to the United States District Court for the Eastern District of Virginia in 2007 by President George W. Bush, argued that because Twitter users “voluntarily” turned over their IP addresses when they signed up for an account, they lost any expectation of privacy.

In other words, simply because users click through opaque “Terms of Service” agreements with Twitter, Google, Facebook or any other internet vendor, “petitioners knew or should have known that their I.P. information was subject to examination by Twitter, so they had a lessened expectation of privacy in that information, particularly in light of their apparent consent to the Twitter terms of service and privacy policy.”

However, as security researcher Christopher Soghoian pointed out in Slight Paranoia, “The federal judge in the Wikileaks case cited in his order a version of Twitter’s privacy policy from 2010, rather than the very different policy that existed when Appelbaum, Gonggrijp and Jonsdottir created their Twitter accounts back in 2008.”

“That older policy,” Soghoian wrote, “actually promised users that Twitter would keep their data private unless they violated the company’s terms of service. It is unclear how the judge managed to miss this important detail.”

“There is a slight problem with relying on a privacy policy created on November 16, 2010 to decide the reasonable expectation of privacy of these three individuals: They created their Twitter accounts several years before the document was written.”

Indeed, as Soghoian observes, “not only is a federal judge ruling that 3 individuals have no reasonable expectation of privacy with regard to the government getting some of their Internet transaction data, but the judge isn’t even citing the right version of a widely ignored privacy policy to do so.”

“If the judge were to examine the privacy policy that existed when these three targets signed up for a Twitter account,” Soghoian concludes, “he might decide that they do in fact have a reasonable expectation of privacy and that the government needs a warrant to get the data.”

While true as far as it goes, and Soghoian should be commended for pointing out this glaring contradiction in the government’s case, readers are well aware that the WikiLeaks Twitter case is about politics not process, that is, moves by the secret state to clamp-down on dissent and dissenters, and not whether someone has read and “voluntarily” signed-off on a vendor’s “Terms of Service” agreement.

Among other things, O’Grady’s ruling revealed that the government was seeking not only IP addresses but “1. subscriber names, user names, screen names, or other identities; 2. mailing addresses, residential addresses, business addresses, e-mail addresses and other contact information; 3. connection records, or records of session times and durations; 4. length of service (including start date) and types of service utilized; 5. telephone or instrument number or other subscriber number or identity, including any temporarily assigned network address; and 6. means and source of payment for such service (including any credit card or bank account number) and billing records.”

It doesn’t take a computer forensics expert to conclude that the government, in obtaining “connection records,” will also get their hands on information about anyone else who corresponded or “followed” the activists on Twitter.

Kevin Bankston, a senior staff attorney with EFF told CNET News that the ruling means that “essentially any data about you collected by an Internet service is fair game for warrantless searches by the government.”

The District Court’s ruling can be situated within the wider context of the Obama administration’s unprecedented drive to criminalize whistleblowing.

The persecution of Julian Assange and other WikiLeaks supporters is a shot across the bow not only against those who leak sensitive information to the public that expose egregious acts by the well-connected, but at investigative journalists and researchers who in their course of their work uncover high crimes and misdemeanors by powerful corporations and governments.

As the World Socialist Web Site pointed out, “Assange’s real ‘crime’ is that, through its publication of a mass of secret US military documents, diplomatic cables and video footage, WikiLeaks has exposed the criminal character of the invasions and occupations of Afghanistan and Iraq and numerous other conspiracies carried out against the world’s people by Washington and its allies.”

Make no mistake, this ruling is a warning of further draconian moves to come.

As The Washington Post reported last month, the “commingling” of CIA officers, JSOC paramilitary troops and contractors “occupy an expanding netherworld between intelligence and military operations” where “congressional intelligence and armed services committees rarely get a comprehensive view.”

Or any “view” at all, which is precisely what the CIA and Pentagon have long desired; an oversight-free zone where American policymakers operate, as Dick Cheney infamously put it, on the “dark side,” a position fully-embraced by the “hope and change” administration of Barack Obama.

Awlaki’s state-sponsored killing, like the May 2 murder of Osama Bin Laden in Abbottabad, Pakistan, resurfaces many unanswered questions concerning the 9/11 attacks, the so-called trigger for America’s global “War on Terror.”

But before turning to those issues, it is necessary to take a detour and examine administration actions; specifically the deliberations undertaken by Obama’s national security team which culminated in Awlaki’s death.

White House “Death Panel”

Unlike the fantasies of the corporate-controlled Tea Party who charged during the run-up to the White House sell-out of health care reform that the administration would create “death panels” to deny care to the elderly, it has since emerged that Team Obama has stood-up the authentic article.

According to The Washington Post, President Obama’s Justice Department “wrote a secret memorandum authorizing the lethal targeting” of Awlaki. The Post reports that the memorandum “was produced following a review of the legal issues raised by striking a U.S. citizen and involved senior lawyers from across the administration. There was no dissent about the legality of killing Aulaqi.”

That memorandum, according to The New York Times, was drafted in June 2010, some six months after Awlaki had been placed on the White House hit list, by Office of Legal Counsel attorneys “David Barron and Martin Lederman.”

Both former OLC lawyers are prominent “liberals” from prestigious universities; Barron at Harvard and Lederman at Georgetown University.

Ironically enough, in several scholarly articles they had railed against the previous administration’s adaptation of the “Unitary Executive Theory” promulgated by “torture memo” authors Jay Bybee and John Yoo.

Under Bush, OLC opinions were used to justify everything from warrantless wiretapping, the domestic deployment of the military to arrest Americans, to the torture and indefinite detention of “terrorist” suspects at the Guantánamo Bay prison gulag and CIA “black sites.”

This, of course, begs the question: if Awlaki’s murder was “legal,” why then was the authorization to do so reached in camera by officials following a deliberative process which can’t be shared with the public because of “national security”?

The answer should be chilling and shocking to all Americans: because the nucleus of a death squad state recalling those stood up in Chile and Argentina during the “dirty war” period of the 1970s may now exist.

Reuters disclosed that Americans “are placed on a kill or capture list by a secretive panel of senior government officials, which then informs the president of its decisions, according to officials.”

“There is no public record of the operations or decisions of the panel,” reporter Mark Hosenball wrote, “which is a subset of the White House’s National Security Council. … Neither is there any law establishing its existence or setting out the rules by which it is supposed to operate.”

According to Reuters, “targeting recommendations are drawn up by a committee of mid-level National Security Council and agency officials. Their recommendations are then sent to the panel of NSC ‘principals,’ meaning Cabinet secretaries and intelligence unit chiefs, for approval.”

A “former official” told Hosenball that “one of the reasons for making senior officials principally responsible for nominating Americans for the target list was to ‘protect’ the president,” i.e., provide Obama legal cover under the thin veneer afforded by “plausible deniability.”

McClatchy News reported that “broadly speaking” White House orders to kill Awlaki were based on claims that “the nation’s inherent right of self-defense [is] recognized under international law.” However, “international law also imposes limits: Targeted killing is banned except to protect against ‘concrete, specific and imminent’ danger.”

And although the administration now claims that Awlaki was targeted for death because “his role in AQAP had gone ‘from inspirational to operational’,” Reuters disclosed that “officials acknowledge that some of the intelligence purporting to show Awlaki’s hands-on role in plotting attacks was patchy.”

In fact, the White House has failed to provide any proof whatsoever that Awlaki posed an “imminent danger” to the United States, although there is considerable evidence that he was on the radar of U.S. and allied secret state intelligence agencies for more than a decade, had close ties to several of the 9/11 hijackers and could have been picked up and indicted at any time.

Instead, federal law enforcement officials gave Awlaki a green light to leave the United States, unlike thousands of innocent Muslim-Americans swept-up and detained by the FBI in the post-9/11 hysteria that followed the attacks.

A “former military intelligence officer who worked with special operations troops to hunt down high-value terrorism targets,” told the right-wing Washington Times: “I think it’s pretty easy to understand why they didn’t take him alive. Would you want to deal with the hassle of trying to put him on trial, an American citizen that has gotten so much press for being the target of a CIA kill order? That would be a nightmare. The ACLU would be crawling all over the Justice Department for due process in an American court.”

That about sums up the dominant mindset of an Empire in sharp decline: the rule of law and due process for criminal suspects reduced to a “hassle.”

Slouching Towards Dictatorship

Obama’s national security team justified whacking Awlaki, as with their earlier hit on Osama Bin Laden, by referencing the Bush-era Authorization for Use of Military Force (AUMF), hastily passed by Congress in the wake of the 9/11 attacks.

“A decade later,” McClatchy reported, “the Obama administration contends that this wartime authority remains even if it’s evolved for reasons the administration won’t fully elucidate.”

The relevant section of AUFM reads: “IN GENERAL — That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.” (emphasis added)

Readers will undoubtedly note that in passing the resolution, Congress not only ceded its authority to declare war to the Executive Branch but also planted the seeds of the administration’s preemptive war doctrines along with an unprecedented expansion of its domestic surveillance powers.

More pertinently is the reason why the administration “won’t fully elucidate” how the Bush-era AUMF “evolved” chiefly due to the fact that secret annexes now exist which authorize the killing of Americans, not only in Yemen or other “War on Terror” fronts, but right here in the United States itself?

After all, it’s not beyond the Obama administration to play fast and loose with the truth or hide repressive policies under layers of top secret presidential “findings” or a multitude of CIA and Pentagon black programs, as did the previous Bush government.

Recall that during the run-up to the reauthorization of three expiring provisions of the USA Patriot Act, civil libertarians decried the use of secret legal memos justifying everything from unchecked access to internet and telephone records to the deployment of government-sanctioned malware on private computers during “national security” investigations.

Recall too, that the Obama administration, as The New York Times disclosed in June, handed the FBI “significant new powers to its roughly 14,000 agents, allowing them more leeway to search databases, go through household trash or use surveillance teams to scrutinize the lives of people who have attracted their attention.”

These “news rules,” the Times averred, will give agents “more latitude” to investigate citizens even when there is no evidence they have exhibited “signs of criminal or terrorist activity.”

It gets worse.

Last month, The New York Times revealed that the FBI “is permitted to include people on the government’s terrorist watch list even if they have been acquitted of terrorism-related offenses or the charges are dropped.”

Under these new standards, the Bureau may deem someone a “known or suspected terrorist,” not based on evidence gathered through a criminal investigation, but solely if officials have “particularized derogatory information,” including that derived from First Amendment protected activities, to support to support an individuals’ watch listing or placement on a “no-fly” list.

One administration wag, speaking on condition of anonymity because to do otherwise would reveal “closely held deliberations within the administration,” but did so anyway because this was clearly a sanctioned leak to stenographer Peter Finn, told The Washington Post that “what constitutes due process in [the Awlaki case] is a due process in war.”

“The administration officials refused to disclose the exact legal analysis used to authorize targeting Aulaqi,” Finn wrote, “or how they considered any Fifth Amendment right to due process.”

We now know, thanks to Reuters, that authorization came from a White House death panel, an extra-constitutional committee of anonymous officials operating outside the rule of law.

As we have seen since Barack Obama took office, as under the previous Bush government, the Constitution is a meaningless scrap of paper with some words on it, duly trotted out on national holidays only to be cast aside in practice; that is, when it isn’t used as a rhetorical hammer against assorted “new Hitlers” or geopolitical rivals whose resources corporate America seek to “liberate.”

Dead Men Tell No Tales

As toxic to democratic norms and the rule of law as the Awlaki affair clearly is, there are underlying parapolitical themes surrounding his murder which strengthen suspicions that what took place in Yemen on September 30 is more than just another story about an overt power grab by the Executive Branch.

While the government and media continue to cover-up the role played by the CIA and other secret state agencies in alleged intelligence “failures” leading up to the 9/11 attacks, evidence suggests that the Awlaki killing, as with last May’s murder of former bête noire and on-again, off-again ally, Osama Bin Laden, may have been a “clean-up” operation designed to remove inconvenient witnesses with knowledge of Agency involvement in the plot.

As Antifascist Calling reported nearly two years ago in the wake of the aborted 2009 bombing of Northwest Airlines Flight 253 on Christmas Day over Detroit, a plot for which Awlaki was accused of orchestrating, though evidence can’t be supplied because it’s “secret,” The Washington Post disclosed that Awlaki had extensive contacts with 9/11 hijackers Nawaf Alhazmi, Khalid Almihdhar and Hani Hanjour who “had spent time at his mosques in California and Falls Church.”

In a series of 2010 articles (here, here, here and here), I reported on the stark parallels between September 11 and the Flight 253 affair.

And as with the 2001 attacks we were told “changed everything,” far from being a failure to “connect the dots,” intelligence and law enforcement officials possessed sufficient information that should have prevented accused bomber, Umar Farouk Abdulmutallab, from boarding that plane and placing the lives of nearly 300 air passengers at risk.

And while Awlaki wasn’t given a free pass by the administration in that botched attack, earlier government failures to apprehend him certainly set the stage.

According to History Commons, “shortly before the [FBI] investigation [into Awlaki's alleged ties to the now-shuttered Holy Land Foundation] is closed,” in 2000, Awlaki “is beginning to associate with hijackers Nawaf Alhazmi and Khalid Almihdhar shortly before the investigation ends.”

“For instance,” History Commons avers, “on February 4, one month before the FBI investigation is closed, al-Awlaki talks on the telephone four times with hijacker associate [and suspected Saudi intelligence agent] Omar al-Bayoumi.”

“The 9/11 Commission will later speculate that these calls are related to Alhazmi and Almihdhar, since al-Bayoumi is helping them that day, and that Alhazmi or Almihdhar may even have been using al-Bayoumi’s phone at the time. Al-Bayoumi had also been the subject of an FBI counterterrorism investigation in 1999.”

Keep in mind that at least two of the hijackers, Nawaf Alhazmi and Khalid Almihdhar, figure prominently in recent revelations by researcher Kevin Fenton, the author of Disconnecting the Dots.

In a recent conversation with Boiling Frogs Post’s Sibel Edmonds and Peter B. Collins, Fenton said that during the course of his investigation, drawn from the Congressional 9/11 Joint Inquiry, the 9/11 Commission, the Justice Department’s Inspector General’s report, and the CIA’s still-redacted Inspector General’s report, he discovered that the CIA had deliberately withheld information from the FBI that the future hijackers had entered the United States with multiple entry visas issued in Jeddah, Saudi Arabia.

Even though the Agency had identified the pair as international terrorists who attended a 2000 Al-Qaeda summit in Malaysia where they and others, including Khalid Shaikh Mohammed and Khallad Bin Attash, one of the principle architects of the 1998 U.S. Embassy bombings in Kenya and Tanzania, planned the assault on the USS Cole and the 9/11 attacks, they kept this from the FBI, information that could have led straight to the heart of Al-Qaeda’s “planes operation.”

Fenton provides substantial evidence that the CIA’s Alec Station Director Richard Blee and deputy, Tom Wilshire, concealed intelligence from investigators, concluding this “information was intentionally omitted in order to allow an al-Qaeda attack to go forward against the United States.”

As part of this continuing cover-up, Awlaki’s ties to the 9/11 hijackers were far more extensive than secret state officials have led us to believe.

In fact, although the Obama administration has justified killing Awlaki with false claims that he was AQAP’s “external operations” chief, his role before 9/11 was substantially more significant from an investigatory perspective: that of a “fixer,” first in San Diego where he assisted Saudi spook Omar al-Bayoumi in “settling” Alhazmi and Almihdhar, and later in Falls Church, Virginia, where he did the same for Hani Hanjour.

In 2002, Newsweek revealed that “some federal investigators suspect that al-Bayoumi could have been an advance man for the 9-11 hijackers, sent by Al Qaeda to assist the plot that ultimately claimed 3,000 lives.”

“Two months after al-Bayoumi began aiding Alhazmi and Almihdhar,” Newsweek disclosed, “al-Bayoumi’s wife began receiving regular stipends, often monthly and usually around $2,000, totaling tens of thousands of dollars.

Payments arrived “in the form of cashier’s checks, purchased from Washington’s Riggs Bank by Princess Haifa bint Faisal, the daughter of the late King Faisal and wife of Prince Bandar, the Saudi envoy who is a prominent Washington figure and personal friend of the Bush family.”

With startling similarities to the Awlaki case, ten days after the attacks, al-Bayoumi is picked up by British authorities in London, where he had relocated in July 2001, at the request of the FBI. Although his phone calls, bank accounts and associations are scrutinized, the Bureau claim they found no connections to terrorism.

The Washington Post will report that by 2002 the FBI had concluded, the same year Awlaki leaves the U.S., “that no evidence could be found of any organized domestic effort to aid the hijackers.”

Recall that new information linking some members of the Saudi royal family and its intelligence apparatus to the attacks has recently surfaced. Last month, The Miami Herald revealed that two weeks before the kamikaze assaults on the World Trade Center and the Pentagon, a Saudi family “abruptly vacated their luxury home near Sarasota, leaving a brand new car in the driveway, a refrigerator full of food, fruit on the counter–and an open safe in a master bedroom.”

Investigative reporters Anthony Summers and Dan Christensen learned that “law enforcement agents not only discovered the home was visited by vehicles used by the hijackers, but phone calls were linked between the home and those who carried out the death flights–including leader Mohamed Atta–in discoveries never before revealed to the public.”

“Ten years after the deadliest attack of terrorism on U.S. soil,” Summers and Christensen wrote, “new information has emerged that shows the FBI found troubling ties between the hijackers and residents in the upscale community in southwest Florida, but the investigation wasn’t reported to Congress or mentioned in the 9/11 Commission Report.”

In a follow-up piece that significantly advanced the story, researcher Russ Baker reported on the WhoWhatWhy web site “that those alleged confederates were closely tied to influential members of the Saudi ruling elite.”

Building on information first disclosed by the Herald, Baker, the author of Family of Secrets, reports that this “now-revealed link” between those who consorted with the hijackers in Florida “and the highest ranks of the Saudi establishment, reopens questions about the White House’s controversial approval for multiple charter flights allowing Saudi nationals to depart the U.S., beginning about 48 hours after the attacks, without the passengers being interviewed by law enforcement–despite the identification of the majority of the hijackers as Saudis.”

Is there a pattern between the hands-off treatment afforded well-connected Saudis and Anwar al-Awlaki’s casual, and inexplicable, flight from the United States?

“After 9/11″ History Commons points out, “the FBI will question al-Awlaki, and he will admit to meeting with Alhazmi several times, but say he does not remember what they discussed. He will not claim to remember Almihdhar at all.” Other accounts suggest that the relationship was much closer.

“The 9/11 Congressional Inquiry,” History Commons avers, “claim that Alhazmi and Almihdhar ‘were closely affiliated with [al-Awlaki] who reportedly served as their spiritual adviser during their time in San Diego. … Several persons informed the FBI after September 11 that this imam had closed-door meetings in San Diego with Almihdhar, Alhazmi, and another individual, whom al-Bayoumi had asked to help the hijackers’.”

“Around August 2000,” History Commons reports, “al-Awlaki resigns as imam and travels to unknown ‘various countries.’ In early 2001, he will be appointed the imam to a much larger mosque in Falls Church, Virginia. During this time frame, Alhazmi, Almihdhar, and fellow hijacker Hani Hanjour will move to Virginia and attend al-Awlaki’s mosque there.”

Anecdotally, in 2003 Newsweek reports: “Lincoln Higgie, an antiques dealer who lived across the street from the mosque where Aulaqi used to lead prayer, told Newsweek that he distinctly recalls the imam knocking on his door in the first week of August 2001 to tell him he was leaving for Kuwait. ‘He came over before he left and told me that something very big was going to happen, and that he had to be out of the country when it happened,’ recalls Higgie.”

The antiques dealer later told The New York Times, that when he learned that Awlaki would be permanently leaving San Diego, “he told the imam to stop by if he was ever in the area–and got a strange response.” Higgie said, “‘I don’t think you’ll be seeing me. I won’t be coming back to San Diego again. Later on you’ll find out why’.”

Although the FBI suspected Awlaki “had some connection with the 9/11 plot,” authorities claim there wasn’t enough evidence to charge him, nor can he be deported because he’s an American citizen. And when the Bureau hatched an ill-conceived plan to arrest him on an obscure charge of “transporting prostitutes across state lines,” that plan collapsed when Awlaki left the U.S. in March 2002.

“But on October 10, 2002,” History Commons reports, “he makes a surprise return to the U.S.” Although his name is on a terrorist watch list and he is detained by Customs’ officials when he lands in New York, they are informed by the FBI that “his name was taken off the watch list just the day before. He is released after only three hours.”

“Throughout 2002,” History Commons informs us, Awlaki is the “subject of an active Customs investigation into money laundering called Operation Greenquest, but he is not arrested for this either, or for the earlier contemplated prostitution charges. At the time, the FBI is fighting Greenquest, and Customs officials will later accuse the FBI of sabotaging Greenquest investigations.”

Awlaki again leaves the U.S., this time for good. Although the FBI admits they were “very interested” in Awlaki, they fail to stop him leaving the country. One FBI source told U.S. News and World Report, “We don’t know how he got out.”

Inexplicably however, it was not until 2008 that secret state officials concluded that Awlaki was an Al-Qaeda operative! This beggars belief, and raises the question as to why he was allowed to leave in the first place. It certainly can’t be for lack of evidence or that when Awlaki set-up shop, first in London and finally in Yemen, he is continually under surveillance by British, Yemeni and American intelligence agencies.

Although interviewed four times by the FBI after September 11, the Bureau concluded, according to The New York Times, that Awlaki’s “contacts with the hijackers and other radicals were random.”

Other investigators, however, disagreed. “One detective,” the Times reported, whose name has been scrubbed from 9/11 Commission files, told staff that he believed Awlaki “was at the center of the 9/11 story.” At the time of the Flight 253 affair, I wrote that “despite, or possibly because of these dubious connections he was allowed to leave the country.”

In fact, the curious disinterest exhibited by authorities in bringing Awlaki to ground following September 11, were neither “errors in judgement” nor “mistakes” by overtaxed investigators but are rather, a modus operandi which suggests that Awlaki and others were part of a CIA domestic operation which allowed the 9/11 plot to go forward.

Nothing in what I have written above should be construed as justification for the extrajudicial assassination of Anwar al-Awlaki. In fact, the opposite conclusion can be drawn. The available evidence indicates that Awlaki could have been arrested multiple times. At the least serious end of the criminal justice spectrum he could have been charged with providing “material support to a designated foreign terrorist organization,” to whit, Al-Qaeda, and legally taken out of circulation.

That he wasn’t and continued to operate freely as a propagandist, despite substantial corroboration from multiple law enforcement sources that he was a key figure in the pre-9/11 domestic support network, suggests that Awlaki may have been a double agent, albeit one who had decidedly gone “off the reservation.”

Awlaki’s handling by authorities raise serious questions about just how extensive U.S. support for Al-Qaeda was prior to, and possibly even after the September 11 attacks, particularly in resource-rich global hot-spots.

As numerous journalists and researchers have painstakingly documented, Al-Qaeda, allied terrorist outfits and international narco-trafficking networks have a long, sordid history of supporting U.S. covert operations that targeted America’s geopolitical rivals even as Bin Laden’s far-flung organization plotted to attack the United States itself.

In this light, Awlaki’s “targeted killing” as with the earlier hit on Osama Bin Laden, may be part of a larger CIA/Pentagon operation to remove inconvenient participants and witnesses from the scene who might have a thing or two to say about the crimes and intrigues hatched by the imperialist Empire.

After all, dead men tell no tales…

“The NYPD engaged in a premeditated, planned, scripted and calculated effort to sweep the streets of protesters and disrupt a growing protest movement in New York,” plaintiffs charged in the complaint.

After escorting and leading a group of demonstrators and others well out, the NYPD suddenly and without warning curtailed further forward movement, blocked the ability of persons to leave the Bridge from the rear, and arrested hundreds of protestors in the absence of probable cause.

This contradicts police statements to the media: “They were warned not to walk on the roadway — the people that walked on the pedestrian walkway, there was no issue — the ones on vehicular roadway, they chose to anyway, and they were arrested.”

However, in this video, police can be seen leading protesters onto the Brooklyn Bridge roadway.

“This was a form of entrapment, both illegal and physical,” plaintiffs asserted.

The suit describes the entire event as a charade by the cops who filmed their use of a bullhorn to warn protesters to leave the bridge. Problem is, the bullhorn was inaudible and the cops had blocked both ends of the protest line.

Plaintiffs cite case law affirming that “the Constitution requires that any ostensible command must be heard by those who are expected to be bound by it.”

Instead, the suit clarifies that “the NYPD engaged in a performance, videotaped it, and sprang their trap. They then set their PR machine into motion, distributing widely edited videos of events to spin a false narrative of events to the public and media.”

Mayor Michael Bloomberg applauded the events, saying, “The police did exactly what they were supposed to do.”

Not only do such illegal arrests chill free speech, but they also invade the privacy of citizens engaged in free speech and assembly.  Police collected the names, fingerprints and DNA of lawful protesters for the massive police state database.  Each of those arrested can now worry their name will find its way onto the federal Terrorist Watch List, since the government considers lawful protest a form of terrorism.

Representing the entire class of those arrested, plaintiffs claim damages for violations of their 1st and 4th Amendment rights. In addition to seeking an undisclosed amount in compensatory and punitive damages, they also seek to have their arrests declared null and void and all records pertaining to the arrest sealed and expunged. If asked if ever arrested, plaintiffs demand the right to respond in the negative, given the arrest was illegal and unconstitutional.

Of note, a post on the JP Morgan Chase website confirms an unprecedented $4.6 million gift to the New York City Police Foundation, made prior to the mass arrest. The money was donated ostensibly as a “gift … to strengthen security in the Big Apple.”

Tod Fletcher and Fred Burks of PEERS and WantToKnow.info ask, “Now why would this huge bank be donating millions for security in New York City?”

Yves Smith of Naked Capitalism also questioned the donation. “While this effort to supplement taxpayer funding has a certain logic, it raises the nasty specter of favoritism, that if private funding were to become a significant part of the Police Department’s total budget, it would understandably give priority to its patrons.”

Represented by the Partnership for Civil Justice Fund, the suit against Mayor Michael Bloomberg, Police Commissioner Raymond Kelly and the City of New York was filed in the U.S. District Court for the Southern District of New York, Case No: 11 CIV 6957 (Garcia, et al. vs. Bloomberg, et al.).

PCJF recently won $8.25 million for a class action settlement in a similar case. During protests in 2000 and 2002, Washington, D.C. police arrested over 1,000 people using the same trap and detain tactic.

The NY Daily News reports that Mayor Bloomberg “has suggested the city is starting to grow weary of the protesters.”

Too bad. We grow weary of Wall Street crimes and our own joblessness, homelessness and exploitation-level wages for those who do have jobs.

Hail! Hail! Karina Garcia, Marcel Cartier, Yari Osorio, Benjamin Becker, and Cassandra Regan for fighting for our inalienable right to assemble and protest.

There are official data over time called the Gini index or coefficient between zero and one that is a statistical measure of economic inequality.  When it is zero national income is evenly distributed among all citizens, and when it is one all the income goes to one person.  Obviously the Gini figure will be somewhere between zero and one.  Some nations have very low values and others very high ones.  In the high category is the US.  But more important is that the index has changed over time, rising from about 1980 to current times, after it had remained fairly stable over several decades.  That significant rise from about .37 to .45 shows unequivocally that the rich got richer as most of the population in the middle class and below lost ground.

To truly appreciate what has happened you must seriously examine some data.  For example, between 1979 and 2005 the inflation-adjusted income of families in the middle of the income distribution rose 21 percent. That is very slow growth, especially compared with the 100 percent rise in median income over a generation after World War II when inequality actually decreased.  More importantly, over the same period, the income of the very rich, the top 100th of 1 percent of the income distribution, rose by 480 percent.  Absorb that number for a few moments.  In 2005 dollars, the average annual income of that group rose from $4.2 million to $24.3 million.   Those numbers describe the true class war in which the rich and powerful were the clear winner.

Presently, according to new estimates by the nonpartisan Tax Policy Center, one-fourth of those with incomes of more than $1 million a year pay income and payroll tax of 12.6 percent of their income or less, putting their tax burden below that of many in the middle class who are likely pay twice that amount or even more.  The class war winners are clear.

Need more convincing?  Consider data from the Tax Foundation. Between 1987 and 2008, the share of income controlled by the top 1 percent  grew to 20 percent from 12 percent. That equates to a total share growth of 67 percent. During the same period, their share of taxes went to 28 percent from 24 percent, indicating a share growth of 17 percent.  Follow that?  The top 1 percent share of income grew nearly five times faster than their share of taxes: 67 percent versus 17 percent.  Pretty darn good deal.  So forget all that malarkey from Republicans that the rich pay so much of the nation’s taxes unfairly.  The class war winners are reaping the rewards of a two-party plutocracy that they own.

Here is another dose of class war reality.  The top 1 percent share of total pre-tax income rose from about 10 percent in 1980 to 21 percent in 2008, a nice doubling that helps explain the rise in economic inequality.  It really pays to win the class war.

The idea that raising taxes on the rich in these dismal economic times in any way represents some injustice is such baloney that one should wonder how any American can possibly eat this Republican garbage.  Similarly, the nonsense about job creators somehow not creating new jobs because of higher taxes flies in the face of reality, because very low taxes have not caused them to create significant new jobs.  Nor did higher taxes for some decades after World War II stop high rates of new job creation.

The rich class own most of the wealth of the nation after winning the class war for some thirty years.  They accomplished this victory by using money to buy and corrupt the political system.  The most perplexing aspect of all this is why most Americans have not risen up in revolt against the political system that has so screwed them.  Those on the right keep supporting Republican candidates that lie to them and actively work against the economic interests of all but the rich.  Those on the left fall victim to the lies of Obama and other Democrats that promise much but deliver next to nothing to bring economic justice to most Americans.  Democrats have also contributed to the killing of the middle class.

Odds are that those who have lost the real class war will continue to suffer until they wake up to the need to overthrow the political system.  The only peaceful strategy being use of the Article V convention option in the Constitution by which state delegates could propose amendments that would reform the political and government system to take away the power used by the rich to steal the wealth of the nation.  Do not ever believe that voting for new Democrats or Republicans will fix our corrupt and dysfunctional system.

One important thing to keep in mind: Raising taxes on the rich is necessary but not sufficient to turn the class war already won by the rich around.

Finally, the path to economic justice must include what Dylan Ratigan is advocating, a constitutional amendment to get money out of politics, which I urge readers to support.  This is the way to remove the key tool used by the rich and powerful to pervert the economy in their favor.  Congress will never propose such an amendment, only a convention will.

Since that particular court is the imperial court of the empire the question is really asking them to do a coup amounting to a counter counter-revolution. The revolution was in 1776 when America started the fight that led to the 1789 Constitution of the United States of America which gave birth to Constitutional Democracy. The counter-revolution was in 1871 when the United States Congress enacted an Appropriations Act with a rider tacked on at the last minute abolishing the Indian tribal sovereignty. Till then it had sheltered under the protection of the commerce, defence and treaty clauses interpreted by the US Court’s constitutionally constitutive precedents with regard to the constitutional relationship between the United States and “Indian Tribes and foreign Nations” within the meaning of the Commerce Clause Article I, §8, ¶3, that says Congress is: To regulate Commerce with Indian Tribes and foreign Nations subject to the Protection of their Sovereignty and Possession under the Treaty Clause Article II, §2, ¶2 that delegates to the President the “Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur,” and also subject to the Defence Clauses Article I, §8, ¶1 says “The Congress shall have power to…provide for the common defense…” ¶11. “To declare War [and] ¶15. “To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.

The counter-revolution was perfected when the courts of the United States and Canada decided not to permit anyone to challenge the legality of the abolition of the previously established constitutional right of Indian tribes and foreign Nations to an Answer from the Supreme Court of the United States pursuant to the Original Jurisdiction Clause Article III, §2, ¶2 saying “In all Cases affecting Ambassadors, other public Ministers and Consuls…the Supreme Court shall have original Jurisdiction.”

No Indian tribe’s sovereignty received the Court’s Protection after 1871 although the constitutional question of and answer by the US Supreme Court prior to 1871 settled that the Treaty and Defence Clauses preclude the assumption the Commerce Clause jurisdiction To regulate Commerce with Indian tribes and foreign Nations really means To exercise “plenary power” i.e., sovereignty over Indian tribes and foreign Nations.”

The court record for the entire set of court systems sitting in North America remained a blank slate from 1871 until in United States v. Lara, 541 US 193, 214, 227 (2004), Supreme Court Justice Clarence Thomas out of the blue said:

In 1871, Congress enacted a statute [Appropriations Act of 1871] that purported to prohibit entering into treaties with the ‘Indian nation[s] or tribe[s].’ 16 Stat. 566, codified at 25 USC §71. Although this Act is constitutionally suspect (the Constitution vests in the President both the power to make treaties, Art. II, §2, cl. 2…), it nevertheless reflects the view of the political branches that the tribes had become a purely domestic matter. To be sure, this does not quite suffice to demonstrate that the tribes lost their sovereignty…Federal Indian policy is, to say the least, schizophrenic.…I believe we must examine more critically our tribal sovereignty case law. Both the Court and the dissent, however, compound the confusion by failing to undertake the necessary rigorous constitutional analysis. I would begin by carefully following our assumptions to their logical conclusions and by identifying the potential sources of federal power to modify tribal sovereignty …I do, however, agree that this case raises important constitutional questions that the Court does not begin to answer. The Court utterly fails to find any provision of the Constitution that gives Congress enumerated power to alter tribal sovereignty…I would be willing to revisit the question.

From 1871 through to 2004 this conflict of laws between the constitutional and the ordinary law went unnoticed in so far as the courts of North America are concerned. Of course, the Indians noticed it as did the settlers led by the lawyers, judges and police in the land rush into the Indian territories inaugurated by the ordinary legislation. The legal establishment preceded the settlers in order to open the registry offices to record the government grants to the settlers of the Indians’ lands. The lawyers certified titles to the private property created by the land grants.

The Indians who noticed themselves in the way of the crops, cows, sheep and fences,  of course, noticed the sudden absence of the constitutional protection formerly much promised by newcomer society from time out of mind. They knew the constitutions precluded entry of newcomers unto their land other than with their consent for the purpose of the mutually beneficial fur trade. The Indians were quite familiar with the newcomer government laws regulating this trade by prohibiting the newcomer traders selling alcohol or settling other than to the extent of fur trading posts agreeable to both cultures. Suddenly the fur trade was all but over and the lands were flooded with settlers.

Since the Indians had no money to speak of and since the Appropriations Act of 1871 and Indian Act of 1876 confiscated their lands and put in place of traditional Indian government, the government of the newcomers assisted by newcomer-created Indian band councils, the aboriginal government itself was confiscated along with the land it used to govern. Indians who went to lawyers were told they could either hang around town and beg or go to live on a reservation on some land the newcomer government could spare from settlement and live on handouts there. The aboriginal economy was dead as a means of survival. The lawyers were far too busy profiting from the conveyancing of Indian land to act on behalf of Indians to raise the constitutional question.

This went on the length and breadth of North America until 1972 when on February 11th five Indians came into my law office in Haileybury in northern Ontario, a town of three thousand people on the western shore of Lake Temiskaming. It’s a long narrow lake the center line of which defines the border between northern Ontario and northern Quebec. I’d been called to bar the year before and only just opened my office as a sole practitioner. The Indians were among my first clients. They hailed from Lake Temagami about forty five miles south west as the crow flies. Their lake was situate in the middle of the vast Temagami Forest Reserve of old growth white pines, sparkling rivers and crystal lakes. Their four thousand square mile ancestral homeland is about as close an approximation of the pre-Columbian natural order as exists in North America.

They complained to me that they’d just heard and read about an announcement by the government of Ontario that an 80 million dollar destination ski and summer holiday resort would be built on Maple Mountain, the 2nd highest elevation in Ontario and the crest of the height of land that defines the continental watershed between the waters flowing north to Hudson’s Bay from those flowing south to the Great Lakes St Lawrence drainage basin. What brought them out of the woodwork was the fact the resort was to be placed right at the highest point from the cave at which had emerged the mythic lynx and first people to inhabit the land exposed by the falling water level of the great flood.

Later anthropological and archeological research established a massive concentration of prehistoric rock pictographs throughout this region and unrivalled anywhere else. Similarly, linguistic analysis established this as the geographical centre of a dialectic chain of the Algonkian speaking linguistic family comprised of autonomous hunting bands organized in hereditary family fishing territories taking advantage of the finely networked riverine system that characterizes the northeastern North American woodlands. The waters were both the transportation highways and byways and the inexhaustible source of food complemented by hunting and gathering for variety. And, of course, some degree of quasi-cultivation in the sense of controlled burns that encouraged the important and reliable annual blueberry crops.

Adjacent bands were linked together to constitute the gene pool the minimum size of which has to be at least five hundred to avoid the complications of inbreeding. Also for political, commercial, religious and legal purposes were the aboriginal family, band, national and tribal entities closely linked and integrated by the water routes and intermarriage networks. Artifacts and natural products from one region in North America commonly turn up in the archeological record of the trade routes that the newcomers’ fur trade eventually was able to tap into and take advantage of, from the perspective of both cultures, at first, until the fur resource was depleted by over exploitation and the market collapsed as European fashion moved on from fur hats to the next fad and fashion. And then the settlement frontier leap-frogged the fur trade treaty frontier.

Quite early in my legal research prompted by the Indian clients from Bear Island in Lake Temagami I came across the rather famous Royal Proclamation of 1763. By no very great feat of scholarship I had learned by the summer of 1972 that it codified an agreement or consensus previously arrived at between all the European nations that had been involved in the great scramble to profit from “the discovery.” As early as 1493 the Catholic Church enacted ecclesiastical legislation that purported to bind Christian Europe as a matter of equity to respect Indian tribal sovereignty and exclusive possession to the extent of not just taking as if the right to do so were inherent, but instead to enter into treaties with the tribe, nation or band in occupation for the acquisition from it of the right to govern and possess.

Thus the papal bulla promulgated under reign of Pope Paul III and entitled Sublimis Dei of May 29, 1537 enacted:

To all faithful Christians to whom this writing may come, health in Christ our Lord and the apostolic benediction.

The sublime God so loved the human race that He created man in such wise that he might participate, not only in the good that other creatures enjoy, but endowed him with capacity to attain to the inaccessible and invisible Supreme Good and behold it face to face; and since man, according to the testimony of the sacred scriptures, has been created to enjoy eternal life and happiness, which none may obtain save through faith in our Lord Jesus Christ, it is necessary that he should possess the nature and faculties enabling him to receive that faith; and that whoever is thus endowed should be capable of receiving that same faith. Nor is it credible that any one should possess so little understanding as to desire the faith and yet be destitute of the most necessary faculty to enable him to receive it. Hence Christ, who is the Truth itself, that has never failed and can never fail, said to the preachers of the faith whom He chose for that office “Go ye and teach all nations.” He said all, without exception, for all are capable of receiving the doctrines of the faith.

The enemy of the human race, who opposes all good deeds in order to bring men to destruction, beholding and envying this, invented a means never before heard of, by which he might hinder the preaching of God’s word of Salvation to the people: he inspired his satellites who, to please him, have not hesitated to publish abroad that the Indians of the West and the South, and other people of whom We have recent knowledge should be treated as dumb brutes created for our service, pretending that they are incapable of receiving the Catholic Faith.

We, who, though unworthy, exercise on earth the power of our Lord and seek with all our might to bring those sheep of His flock who are outside into the fold committed to our charge, consider, however, that the Indians are truly men and that they are not only capable of understanding the Catholic Faith but, according to our information, they desire exceedingly to receive it. Desiring to provide ample remedy for these evils, We define and declare by these Our letters, or by any translation thereof signed by any notary public and sealed with the seal of any ecclesiastical dignitary, to which the same credit shall be given as to the originals, that, notwithstanding whatever may have been or may be said to the contrary, the said Indians and all other people who may later be discovered by Christians, are by no means to be deprived of their liberty or the possession of their property, even though they be outside the faith of Jesus Christ; and that they may and should, freely and legitimately, enjoy their liberty and the possession of their property; nor should they be in any way enslaved; should the contrary happen, it shall be null and have no effect.

By virtue of Our apostolic authority We define and declare by these present letters, or by any translation thereof signed by any notary public and sealed with the seal of any ecclesiastical dignitary, which shall thus command the same obedience as the originals, that the said Indians and other peoples should be converted to the faith of Jesus Christ by preaching the word of God and by the example of good and holy living.

This principle of equity was adopted as the positive constitutional law of each of the great maritime powers of Europe that took part in the New World adventure: France, Netherlands, Portugal, Spain, Russia, United Kingdom. And in due course it was saved and continued by their successors in North America Canada and the United States. That is why each of the those italicized names is identified as a defendant in the Case of Mahican Tribe and Rick Vanguilder and Mi’kmaq Tribe and Gary Metallic v. Canada, France, Netherlands, Portugal, Spain, Russia, United Kingdom and United States. That is the Case currently and criminally being stonewalled by William H. Suter, Clerk of the Supreme Court of the United States. It asks the constitutional question the answering of which by the Court will settle the matter Constitutional Democracy v. Unconstitutional Empire in favor of one or the other of those alternative modes of being.

In so far as British North America in particular is concerned, being the immediate predecessor to Canada and the United States of the preemptive right conferred by discovery to treat with the Indian aboriginal governments for the conveyance from them of their previously established jurisdiction and their Peoples’ corresponding possessory in the several hunting, fishing and gathering territories comprising the many ancestral homelands, as early as 1704 the Imperial Judicial Committee of the Privy Council (UK) in the reign of Queen Anne ruled, in the matter of Mohegan Indians v. Connecticut, that with regard to a constitutional question whether a newcomer government has yet acquired jurisdiction and power of disposition over real estate by treaty with the Indian government, that the Indian government is entitled to independent and impartial third-party adjudication.

The Mohegans petitioned Queen Anne in 1703 for appointment of such a third-party because they felt there was no point raising the constitutional question of Connecticut’s jurisdiction over a disputed tract in Connecticut’s court system, for the same reason Connecticut might be expected to be reticent to raise the question in the tribe’s court system. The Attorney General of the UK was commissioned to investigate the issue and in due course he recommended the commissioning of a Standing Committee of the Imperial Privy Council to serve as a trial level third-party adjudicator, subject to appeal ultimately to the Judicial Committee (UK) itself. This was adopted by the Queen and enacted into the colonial constitutional law by Royal Commission pursuant to the royal prerogative to legislate the colonial constitutional law, by means of this particular constitutional procedure. Connecticut repeatedly appealed over the course of the next seventy five years until, in 1775, the Judicial Committee of the Privy Council (UK), the Imperial Court of Last Resort affirmed the exclusive original jurisdiction as the independent and the impartial third-party adjudication of inter parties boundary disputes affecting competing sovereignties between crown governments, Indian tribes and/or foreign Nation or any combination thereof. The exclusive jurisdiction as third-party adjudicator of such disputes before 1789, as at 1789 devolved upon the Supreme Court of the United States pursuant to the constitution’s Original Jurisdiction Clause:

Article III, §2, ¶2 of the Constitution of the United States of America prevents any lapse of jurisdiction by saving and continuing the independent and impartial third-party jurisdiction formerly vested in the Judicial Committee in the Supreme Court of the United States. It enacts, “In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.”

This is the Article of the constitution upon which Rick Vanguilder and Gary Metallic rely to invoke the Court’s third-party jurisdiction to answer the constitutional question of jurisdiction law alone of competing sovereignties between constitutional governments, Indian tribes and foreign Nations. The case of Mahican Tribe and Rick Vanguilder and Mi’kmaq Tribe and Gary Metallic v. Canada, France, Netherlands, Portugal, Spain, Russia, United Kingdom and United States is currently left standing outside the Courthouse door by the Clerk of the Supreme Court Clerk’s chicanery. The legal consequence of the chicanery is that the US Supreme Court in consequence unconstitutionally is denied its right, jurisdiction and judicial duty to vindicate Constitutional Democracy in the case of Constitutional Democracy v. Unconstitutional Empire. Of record as: Mahican Tribe and Rick Vanguilder and Mi’kmaq Tribe and Gary Metallic v. Canada, France, Netherlands, Portugal, Spain, Russia, United Kingdom and United States.

Gary and Rick attest in the US Supreme Court documents they are ambassadors and public ministers duly appointed in the tribal way to deal with the newcomer governments and Peoples by means of raising the constitutional question of the conflict between the constitutions of the named defendants, on the one hand, and on the other the Appropriations Act of 1871 and Indian Act of 1876.

Since those two ordinary statutes are the basis of the federal Indian law that ostensibly, although allegedly unconstitutionally, governs the relationship for legal purposes between natives and newcomers, therefore the constitutional question really means turning back the clock one hundred forty years to a time when it was well understood by everybody that newcomer jurisdiction and possession was contingent upon proof of purchase.

Specifically, by production and filing in court of a certified copy of the Indian Treaty duly registered in a land registry or land titles office and establishing proof of purchase. Such land records relative to New York and Massachusetts where the historical events relevant to the case of Mahican Tribe and Rick Vanguilder and Mi’kmaq Tribe and Gary Metallic v. Canada, France, Netherlands, Portugal, Spain, Russia, United Kingdom and United States took place.

The land records were governed in each of those regions at all material times by one of two pieces of ordinary legislation enacted in compliance with the governing constitutional law. These are from New York and Massachusetts but the same law as identified there applies in all jurisdictions of the United States and Canada:

An Act concerning purchases of lands from the Indians, Stat. Prov. NY 1684, c. 9. Bee itt Enacted by this Gen’ll Assembly and by the authority of the same that from henceforward noe Purchase of Lands from the Indians shall be deemed a good Title without Leave first had and obtaineid from the Governor signified by a Warrant under his hand and Seale and entered on Record in the Secretaries office att New Yorke and Satisfaction for the said Purchase acknowlidged by the Indians from whome the Purchase was made is to bee Recorded likewise which Purchase soe made and prosecuted and entered on Record in the office aforesaid shall from that time be Vallid to all intents and purposes.

An Act to prevent and make void clandestine and illegal purchases of lands from the Indians, Stat. Prov. Mass. Bay 1701-02, c. 11. WHEREAS the government of the late colonys of the Massachusetts Bay and New Plymouth, to the intent the native Indians might not be injured or defeated of their just rights and possessions, or be imposed on and abused in selling and disposing of their lands, and thereby deprive themselves of such places as were suitable for their settlement and improvements, did, by an act and law named in the said colonys respectively many years since, inhibit and forbid all persons purchasing any land of the Indians without the licence and approbation of the general court, notwithstanding which, sundry persons for private lucre have presumed to make purchases of lands from the Indians, not having any license or approbation as aforesaid for the same, to the injury of the natives, and great disquiet and disturbance of many of the inhabitants of this province in the peaceable possession of their lands and inheritances lawfully acquired; therefore, for the vacating of such illegal purchases, and preventing of the like for the future,—Be it enacted and declared by the Lieutenant-Governor, Council and Representatives in General Court assembled, and by the authority of the same,
(1). That all deeds of bargain, sale, lease, release or quit-claim, titles and conveyances whatsoever, of any lands, tenements or hereditaments within this province, as well for term of years as forever, had, made, gotten, procured or obtained from any Indian or Indians by any person or persons whatsoever, at any time or times since the year of our Lord one thousand six hundred thirty-three, without the license or approbation of the respective general courts of the said late colonys in which such lands, tenements or hereditaments lay, and all deeds of bargain and sale, titles and conveyances whatsoever, of any lands, tenements or hereditaments within this province, that since the establishment of the present government have been or shall hereafter be had, made, gotten, obtained or procured from any Indian or Indians, by any person or persons whatsoever, without the licence, approbation and allowance of the great and general court or assembly of this province for the same, shall be deemed and adjudged in the law to be null, void and of none effect: provided, nevertheless,—…
(4). That if any person or persons whatsoever shall, after the publication of this act, presume to make any purchase or obtain any title from any Indian or Indians for any lands, tenements or hereditaments within this province, contrary to the true intent and meaning of this act, such person or persons so offending, and being thereof duly convicted in any of his majestie’s courts of record within this province, shall be punished by fine and imprisonment, at the discretion of the court where the conviction shall be, not exceeding double the value of the land so purchased, nor exceeding six months’ imprisonment.
(5). That all leases of land that shall at any time hereafter be made by any Indian or Indians for any term of years, shall be utterly void and of none effect, unless the same shall be made by and with licence first had and obtained from the court of general sessions of the peace in the county where such lands lye: provided nevertheless, that nothing in this act shall be taken, held or deemed in any wise to hinder, defeat or make void any bargain, sale or lease of land made by one Indian to another Indian or Indians.

Those two colonial statutes are the template for all the colonies and their successors — the States of the United States and the Provinces of Canada. All are based upon and in compliance with the colonial constitutional law eventually codified and reiterated by the first and only omnibus constitution applicable to all of British North America, superseding the same message previously expressed in the governor’s royal commissions and royal instructions for the governance of the several colonial governments, the Royal Proclamation of 1763. It enacted:

[Preamble] And whereas it is just and reasonable, and essential to our Interest, and the Security of our Colonies, that the several Nations or Tribes of Indians with whom We are connected, and who live under our Protection, should not be molested or disturbed in the Possession of such Parts of Our Dominions and Territories as, not having been ceded to or purchased by Us, are reserved to them, or any of them, as their Hunting Grounds—We do therefore, with the Advice of our Privy Council, declare it to be our Royal Will and Pleasure, that…
[1] no Governor or Commander in Chief…do presume, upon any Pretence whatever, to grant Warrants of Survey, or pass any Patents…upon any Lands whatever, which, not having been ceded to or purchased by Us as aforesaid, are reserved to the said Indians, or any of them.
[2] And We do further declare it to be Our Royal Will and Pleasure, for the present as aforesaid, to reserve under our Sovereignty, Protection, and Dominion, for the use of the said Indians, all the Lands and Territories not included within the Limits of Our said Three new Governments [Quebec, East Florida, West Florida], or within the Limits of the Territory granted to the Hudson’s Bay Company, as also all the Lands and Territories lying to the Westward of the Sources of the Rivers which fall into the Sea from the West and North West as aforesaid [i.e., all of British North America howsoever politically organized].
[2] And We do hereby strictly forbid, on Pain of our Displeasure, all our loving Subjects from making any Purchases or Settlements whatever, or taking Possession of any of the Lands above reserved without our especial leave and Licence for that Purpose first obtained.
[3] And We do further strictly enjoin and require all Persons whatever who have either wilfully or inadvertently seated themselves upon any Lands within the Countries above described or upon any other Lands which, not having been ceded to or purchased by Us, are still reserved to the said Indians as aforesaid, forthwith to remove themselves from such Settlements.
[4] And whereas great Frauds and Abuses have been committed in purchasing Lands of the Indians, to the great Prejudice of our Interests, and to the great Dissatisfaction of the said Indians: In order, therefore, to prevent such Irregularities for the future, and to the end that the Indians may be convinced of our Justice and determined Resolution to remove all reasonable Cause of Discontent, We do, with the Advice of our Privy Council strictly enjoin and require that no private Person do presume to make any purchase from the said Indians of any Lands reserved to the said Indians, within those parts of our Colonies where We have thought proper to allow Settlement: but that, if at any Time any of the Said Indians should be inclined to dispose of the said Lands, the same shall be Purchased only for Us, in our Name, at some public Meeting or Assembly of the said Indians, to be held for that Purpose by the Governor or Commander in Chief of our Colony respectively within which they shall lie.
[5] And we do by the Advice of our Privy Council, declare and enjoin, that the Trade with the said Indians shall be free and open to all our Subjects whatever. provided that every Person who may incline to Trade with the said Indians do take out a Licence for carrying on such Trade from the Governor or Commander in Chief of any of our Colonies respectively where such Person shall reside. and also give Security to observe such Regulations as We shall at any Time think fit. by ourselves or by our Commissaries to be appointed for this Purpose, to direct and appoint for the Benefit of the said Trade:
[6] And we do hereby authorize, enjoin, and require the Governors and Commanders in Chief of all our Colonies respectively, as well those under Our immediate Government as those under the Government and Direction of Proprietaries, to grant such Licences without Fee or Reward, taking especial Care to insert therein a Condition, that such Licence shall be void, and the Security forfeited in case the Person to whom the same is granted shall refuse or neglect to observe such Regulations as We shall think proper to prescribe as aforesaid.
[7] And we do further expressly conjoin and require all Officers whatever, as well Military as those Employed in the Management and Direction of Indian Affairs, within the Territories reserved as aforesaid for the use of the said Indians, to seize and apprehend all Persons whatever, who, standing charged with Treason, Misprisions of Treason, Murders, or other Felonies or Misdemeanors shall fly from Justice and take Refuge in the said Territory. And to send them under a proper guard to the Colony where the Crime was committed of which they stand accused, in order to take their Trial for the same.

The drafters of the Royal Proclamation of 1763 were quite superb at their job. They well understood the insidious political temptation under which the governors and the governments under them had to labor, so far from the mother country and exposed to the blandishments of the local gentry, land speculators, businessmen and settlers, all champing at the bit to get into constitutionally off-limits Indian territories. The proclamation heads off the lure of non-compliance in no uncertain terms, making it punishable without proof of guilty intent as “Misprision of Treason,” an absolute offence equivalent to a high contempt of court or treasonable act against the person of the monarch or counseling war upon the Crown’s dominions or home country.

Anyone doing any of the prohibited acts was to be hunted down and returned from the Indian territories if found there, to stand trial in whatever colony the crime had occurred in. This transportation for trial was, of course, necessary since the colonial courts had no jurisdiction in the Indian territories, since those territories remain under the exclusive jurisdiction of the original Indian tribal governments and courts. Until such time as the tribe should contract by Treaty agree to relinquish its territorial sovereignty and possession.

The proclamation anticipated “Pretence” and “Fraud” and “Abuse” in places both high and low in order to get at the Indians’ lands and resources without compliance with the constitutional law. That is why the breach of it was constituted a crime tantamount to treason but easier to prove than treason, since “Misprision” renders the “Treason” punishable upon mere proof of the prohibited act, whether it be an authorized grant of land patent by the Governor or Commander in Chief or the poorer farmer crossing the Treaty Frontier with a little herd of sheep to graze. The defence of ‘Who me?’ or ‘I got lost!’ or any such other thing going to the absence of criminal intent was not arguable.

That is very essence of the legal device of the Royal Proclamation. That rarely employed and peculiar kind of law is published and nailed up on every court house door and every political chamber. It is quite literally “proclaimed” throughout the land much in the same way as in pre-literate England a Town Crier would cry out the message all around each town and village before nailing it with its big red seal in some prominent public place, to remind all and sundry of the law of which all persons in the realm irrebutably are presumed by operation of law alone to have had actual notice.

This is law that section 109 of the Canadian constitution in 1867 saved and continued as the supreme law constitutionally protecting the Indian tribal sovereignty and possession pending treaty when it enacted that the constitutional delegation to the Provinces of Canada of jurisdiction over “Property and Civil Rights” is subject to the Indians’ previously established constitutional “Interest,” rather than the other way round. Thus in 1875 the Minister of Justice and Attorney General of Canada filed a Report in the Privy Council (Canada) recommending the Public Lands Act of British Columbia be disallowed on the ground of conflict with the Royal Proclamation of 1763 in so much as it purported to have dispositive power over Indian lands for which no Indian Treaty surrendering Indian sovereignty and possession had been registered. That is, the province was asserting original as opposed to derivative jurisdiction to grant lands within the geographical boundary of the province regardless of the Treaty Frontier. The Minister’s recommendation was adopted by the Privy Council by Minute in Council which then in turn was signed and sealed into law by the Governor General of Canada. The Report was as follows:

Canada Minute in Council of 23 January 1875. The 40th article of the treaty of Capitulation of Montreal, dated 8th September 1760, is to the effect that: “The Savages or Indian allies of His Most Christian Majesty shall be maintained in the lands they inhabit if they choose to remain there.” The Proclamation of King George III 1763 [enacts] “…such parts of our dominions and territories, as not having been purchased by Us, are reserved to them, or any of them as their hunting grounds;…or upon any lands whatever, which not having been ceded to or purchased by us, as aforesaid, are reserved to the said Indians, or any of them…And we do further strictly enjoin and require all persons whatsoever, who may have either wilfully or inadvertently seated themselves upon any lands within the Countries above described, or upon any other lands, which not having been ceded to or purchased by us, are reserved to the said Indians as aforesaid, forthwith to remove themselves from such settlements…” The Undersigned would also refer to the BNA [British North America] Act 1867 Sec. 109, applicable to British Columbia, which enacts that, all lands belonging to the Province shall, belong to the Province “subject to any trust existing in respect thereof, and to any interest other than the Province in the same.” The Undersigned [Minister of Justice for Canada], therefore, feels it incumbent upon him to recommend that this Act [the British Columbia Public Lands Act] be disallowed [as unconstitutional in virtue of purporting to apply to Hunting Grounds reserved for the Indians].

The Minute in Council was not, in fact, implemented. Instead, in a complete about face the government of Canada the following year chose instead to ignore section 109 of the constitution constituting that government subject to section 109. Rather than respect the proclamation the Prime Minister who at one time was also Superintendent of Indian Affairs led his colleagues into passing the Indian Act of 1876 which itself was modeled upon the American Appropriations Act of 1871.

The Indian Act provided that the only Indians with legal status are those individuals who are listed on the band lists maintained by the Department of Indian Affairs and Northern Development. Bands are defined as bodies politic incorporated pursuant to the Indian Act and exercising the municipal powers (dog bylaws, garbage collection and so on) authorized under that statute and approved by the Superintendent of Indian Affairs who has discretionary power to disallow any band council resolution.

As under the Appropriations Act of 1871 the Indian Act of 1876 introduced a regime of federal law profoundly in conflict with the previously established constitutional law.

This, of course, was and remains unquestionably unconstitutional. In rule of law theory all the Indian tribes had to do to protect their sovereignty and possession from this usurpation and dispossession was to deliver a Notice of Constitutional Question requiring the Court to answer by declaring the Appropriations Act of 1871 the Indian Act of 1876 null and void.

That is easier said than done. In complementary ordinary legislation it became a criminal offence for a lawyer to represent Indians without the consent in writing of the Superintendent. Not that any lawyers applied. The profession was too busy doing the land deals in consequence of the unconstitutional dismantling of the Treaty Frontier Wall. It is very hard for a lawyer to break ranks with his profession. Especially since the members of the bench are drawn from it.

Not only was it hard, but pragmatically it was impossible. The clerks of the courts who are appointed to office and subject to removal from office by the judges of each court were — and are — under permanent instructions to reject any document filed by or on behalf of an Indian tribe claiming constitutional protection for its sovereignty and possession. No Indian accused of a criminal offence could, or can, get heard in court to raise the constitutional defence of tribal sovereignty.

Prior to 1871 Indian tribal sovereignty was a commonly referenced topic in hundreds of recorded court cases. After 1871 there are no references. The previously established judicial confirmations of the constitutional law in every generation since 1789 suddenly stopped. The Indian tribal sovereignty court record from 1871 to 2004 is a blank slate.

This is not surprising given that access to the civil courts is barred by the court clerks who refuse to permit the filing of the constitutional question and of the criminal court judges who cannot see or hear the issue. The question is not a part of any court record or reasons for judgment because the legal profession and judiciary do not permit it.

Prior to 1871 everybody, and not only lawyers and judges, knew perfectly well the federal government has jurisdiction to regulate the Indian trade pursuant to the commerce clause subject to the treaty and defence clauses that protect the tribes from invasion, occupation, usurpation and dispossession “on any Pretence whatever.”

What the constitutions attempted to do but did not succeed in doing was to guard against the counter-revolution that eventually did overthrow Constitutional Democracy and replace it with Unconstitutional Empire. The counter-revolution was created and implemented from within the society rather than from the outside. The constitutions placed their People’s trust in the guardianship of the legal profession and the judicial branch of government.

Theirs was duty to implement the rule of law specifically by upholding the principle of the supremacy of the constitution upon which the existence of Constitutional Democracy entirely depends.

The framers of the constitutions, the same as the drafters of the Royal Proclamation of 1763, were not wet behind the ears. They knew of the proclivity of governments to exceed and abuse the powers entrusted to them and they sought to forestall the risk by putting the court system in the position of guardianship of the public trust to safeguard Constitutional Democracy. After all if you can’t trust the judges, who can you trust?

For the past forty years I have been persisting in trying to get into courts, on behalf of Indian tribal governments, the constitutional question of the conflict of laws between the constitutions’ amendment, commerce, defence, judicial oath respecting the supremacy of the constitution and treaty clauses and their interpretive precedents on the one hand, and on the other the federal Indian law introduced by the Appropriations Act of 1871 and the Indian Act of 1876.

In 1999 a judge convicted me of criminal contempt of court and in due course I was disbarred as a convicted criminal from practicing with regard to the law of Ontario, on the basis of the bare faced lie that every judge before whom I had raised the question carefully and patiently had addressed it and discounted it with cogent reasons for judgment. If that were true, there necessarily would be a court record to prove it. Not that the law of Ontario is relevant other than that it is one of the many bodies of law that unconstitutionally is applied in criminal willful blindness by the courts of the Canada, France, Netherlands, Portugal, Spain, Russia, United Kingdom and United States.

The crimes go beyond mere ‘Misprision of Treason” and most importantly today consist in war and genocide, the prevention of which is the objective of the case of Constitutional Democracy v. Unconstitutional Empire carriage of which now has been picked up by the case of Mahican Tribe and Rick Vanguilder and Mi’kmaq Tribe and Gary Metallic v. Canada, France, Netherlands, Portugal, Spain, Russia, United Kingdom and United States.

What that case does is present an answer to the same old constitutional question that the legal system of the Unconstitutional Empire of the responding nations, with the cooperation of the International Court of Justice, International Criminal Court, Human Rights Committee of the United Nations and Judicial Committee of the Privy Council (UK), have managed successfully to make invisible and unheard-able ever since 1871.

Suddenly, in 2004 US Supreme Court Justice Clarence Thomas took judicial notice, on his own motion, for the Court to address the manifestly unconstitutional status of the Appropriations Act of 1871 and the Indian Act of 1876 in the light of the Commerce, Treaty and Defence Clause precedents read as a set. This was the first time in 133 years that a North American judge opened his eyes to see the conflict and, therefore, the urgency of the Court answering the constitutional question of jurisdictional law alone of Indian tribal sovereignty.

He did this on his own initiative, since the system is set up to block litigants who raise the question from reaching the Judges. Out of the blue Justice Clarence Thomas of the Supreme Court of the United States in the Case of United States v. Lara, 541 US 193, 214, 227 (2004) said in compliance with the Judicial Oath Clause Article VI ¶3 :

In 1871, Congress enacted a statute [Appropriations Act of 1871] that purported to prohibit entering into treaties with the ‘Indian nation[s] or tribe[s].’ 16 Stat. 566, codified at 25 USC §71. Although this Act is constitutionally suspect (the Constitution vests in the President both the power to make treaties, Art. II, §2, cl. 2…), it nevertheless reflects the view of the political branches that the tribes had become a purely domestic matter. To be sure, this does not quite suffice to demonstrate that the tribes lost their sovereignty…Federal Indian policy is, to say the least, schizophrenic.…I believe we must examine more critically our tribal sovereignty case law. Both the Court and the dissent, however, compound the confusion by failing to undertake the necessary rigorous constitutional analysis. I would begin by carefully following our assumptions to their logical conclusions and by identifying the potential sources of federal power to modify tribal sovereignty …I do, however, agree that this case raises important constitutional questions that the Court does not begin to answer. The Court utterly fails to find any provision of the Constitution that gives Congress enumerated power to alter tribal sovereignty…I would be willing to revisit the question.

Well, the cat is out of the bag. No way does she want to be jammed back in there. William K. Suter, Clerk of the Supreme Court of the United States, is doing his level best to serve as the Honorable Cat Catcher to the Unconstitutional Empire. Suter has refused to let Gary and Rick file thec case of Mahican Tribe and Rick Vanguilder and Mi’kmaq Tribe and Gary Metallic v. Canada, France, Netherlands, Portugal, Spain, Russia, United Kingdom and United States. Suter’s ground of refusal is, the federal legislation whose constitutionality itself is in question does not allow constitutional challenges to itself. And that is where the matter presently stands. To all intents and purposes the cat is back in the bag, notwithstanding Justice Thomas. The most recent of the very many painful attempts to escape the prison built and maintained by the judicial branch of the Unconstitutional Empire to contain and restrain the constitutional question is the following letter to each of the individual Justices of the Supreme Court of the United States:

Cheryl Biren-Wright, Pennsauken, N.J., charges the defendants with violating her 1st, 4th, and 14th amendment rights. The civil action, filed in the U.S. District Court, Philadelphia, is based upon her arrest during a peaceful protest September 12, 2009, at the Army Experience Center (AEC) in the Franklin Mills Mall.

According to the complaint, Biren-Wright, who was not a part of the demonstration but at the mall as a reporter-photographer, was arrested and charged with failure to disperse and conspiracy, second degree misdemeanors. The charges were subsequently dropped by the Philadelphia district attorney.

The Philadelphia police also arrested and charged six protestors with conspiracy and failure to disperse—Elaine Brower, 55, New York, N.Y.; Richie Marini, 35, Staten Island, N.Y.; Joan Pleune, 70, Brooklyn, N.Y.(one of the original Freedom Riders in 1961); Beverly Rice, 72, New York, N.Y.; Debra Sweet, 57, Brooklyn, N.Y.; and Sarah Wellington, 26, Piermont, N.Y. Two months after Biren-Wright’s case was dropped, the six protestors were found not guilty in Philadelphia Municipal Court.

Paul J. Hetznecker, who represented the six defendants in the criminal trial, and Biren-Wright in her civil suit, believes that police over-reaction to protestors, as well as their lack of knowledge or appreciation for Constitutional protections, may be “a systemic problem throughout the country.” Hetznecker says under Constitutional and state law, “There can not be an arbitrary and capricious decision to end the civil rights of the protestors.”

The civil suit complaint charges that police violated Biren-Wright’s First Amendment rights to “gather information . . . to cover a matter of public interest including the law enforcement activity in public places.” Actions by the police deprived her of 4th and 14th amendment rights that, according to the complaint, protect against “unreasonable search and seizure,” “loss of physical liberty,” and “freedom from excessive use of unreasonable and justified force.”

The suit lists six separate counts:

● Abridgement of her rights under the First Amendment to observe and record news in a public place;

● False arrest and imprisonment;

● Use of excessive force by the police;

● False arrest under state law;

● Common Law Assault under state law; and,

● Failure of the City of Philadelphia to adequately train and supervise its police.

The complaint charges that because of accepted practices, the defendants may have believed “that their actions would not be properly investigated by supervisory officers and that the misconduct would not be investigated or sanctioned, but would be tolerated.” The policy, according to the complaint, “demonstrates a deliberate indifference on the part of the policymakers of the City of Philadelphia to the constitutional rights of persons within the City, and were the cause of the violations of the Plaintiff’s rights. . . .”

Named in the suit in addition to the City of Philadelphia are Lt. Dennis Konczyk, officers Tyrone Wiggins, John Logan, Robert Anderson, Donald West, William Stuski, and two unnamed John Does.

The Philadelphia Police Department refused to comment about the suit as a matter of policy regarding “issues in court,” according to Jillian Russell, Department spokesperson.

In August 2008, the Army opened the AEC, a 14,500 square foot “virtual educational facility” with dozens of video games. The Center, deliberately located near an indoor skateboard park, replaced five more traditional recruiting offices, and was designated as a two-year pilot program. The initial cost was $12 million.

Army recruiters could not actively recruit children under 17, but could talk with the teens and answer any of their questions about the Army. Among the virtual games was one in which children as young as 13 could ride a stationary Humvee and shoot a simulated M-16 rifle at life-like video images of Muslims and terrorists.

Because of the emphasis upon war, and a requirement that all persons had to sign in at the center, thus allowing the recruiters to follow up as much as four or five years later, peace activists began speaking out against the AEC.

To counter what was quickly becoming a public relations problem, the Army sent out news releases, picked up by the mainstream media, and established a full social media campaign to explain the “benefits” of the AEC. The protests continued.

Elaine Brower, whose son was in Iraq on his third tour of duty, told OpEdNews a day after her arrest: “The AEC is giving guns to 13-year-olds, drawing them in with violent video games. As more and more Afghan civilians and U.S. military are being killed in the U.S. occupation of Afghanistan, we’re saying ‘no’ to these wars. We’ve got to stop the flow of youth into the military, where they’re being used to commit war crimes in our name.”

With a police permit, and escorted by officers from Philadelphia’s Civil Affairs Unit, about 200–250 protestors—most of them middle-aged or senior citizens, many of them veterans—had come to the AEC, believing their First Amendment rights were being protected. The protest, although noisy at times, was peaceful; the counter-demonstration wasn’t.

According to the complaint, “The counter-demonstrators [members of an organization known as The Gathering of Eagles] yelled, jeered and taunted the AEC protestors. At no time did [the police] direct, or attempt to limit the First Amendment activities of the counter-demonstrators,” nor were they ever told to disperse.

Throughout the demonstration, the protestors had not given any indication that they posed any physical threat to others. However, about 45 minutes after the demonstration began, the police, under direction of Lt. Konczyk, ordered the protestors to disperse.

At that point, Biren-Wright, according to the complaint, “placed herself outside the immediate area . . . so as not to interfere with the police activity.” She continued to photograph and report on the demonstration. The complaint charges that Lt. Konczyk, “without just cause or legal justification,” directed several officers to arrest her, walking past several protestors and counter-demonstrators. She says she told the officers she was a member of the press. At no time, she says, did she participate as a demonstrator nor verbally or physically threaten anyone. The officers, says Biren-Wright, arrested her without any warning. The arresting officer’s “degree of anger—he was clearly red-faced—was inappropriate,” she recalls. The police, says Biren-Wright, “were clearly targeting me, trying to keep me from recording the demonstration and their reactions.”

One officer, says Biren-Wright, “unnecessarily twisted my arm.” Another officer seized her camera and personal items. One of the officers put plastic cuffs on her wrists “so tight that it caused significant pain, swelling and bruising, and an injury that lasted for several weeks,” according to the complaint.

Biren-Wright’s 15-year-old daughter was shopping in the mall during the protest, but had reunited with her mother shortly before the arrests. Her daughter, says Biren-Wright, “came closer upon the arrest and I told the officer she was my daughter and a minor and would be alone.” The officer, says Biren-Wright, snapped, “You should have thought of that before.” At the processing center that police had previously set up at the mall, Biren-Wright told several officers that her daughter was alone in the mall and was from out of state. “None of them did anything to ensure her safety,” she says. The daughter, unsupervised, eventually found Rob Kall, OpEdNews editor, who drove her to the jail to take her mother’s keys and then drove her home, where she spent the night alone.

Outside the mall, counter-protestors shouted obscenities as those arrested boarded the police bus. “They were standing at the door to the bus,” says Biren-Wright, “and posed a safety issue to us since we were in handcuffs.”

The six who were arrested and Biren-Wright were initially taken to the 15th District jail. Richie Marini, the lone male arrested, was kept at the district jail. The six women were transferred to the jail at the Philadelphia Police headquarters, known by locals as the “Roundhouse,” where a nurse took each woman’s vital signs and asked if there were any injuries. “I showed him my wrist and thumb that were already red and swollen” from the restrictive handcuffs, says Biren-Wright. His response, she says, was “That doesn’t count.”

Biren-Wright, along with the other five women, was held for 14 hours. At 5 a.m., she says, they were released from the “Roundhouse” onto a dark and barren street—there were no taxis anywhere near—and locked out of the police station. Although the women had cell phones, they had not been allowed to call for rides while in the jail area. Outside, they called friends, but waited until help arrived. Marini was released from the district jail later that morning.

The only reason Biren-Wright’s pictures of the demonstration survived is because she had secretly removed the memory chip during her arrest. When the camera was finally returned, “all of the settings were messed up and the lens was not replaced properly.”

The Army closed the AEC at the end of the pilot program. It had claimed that because of increased enlistments nationwide, the Center was no longer needed. It never acknowledged that the protestors and the public reaction may have been a reason for the closing.

In an unrelated case, the U.S. Court of Appeals for the Third Circuit ruled in October 2010 [Kelly v. Borough of Carlisle] that recording police activity in public places is protected by Constitutional guarantees. This month, the ACLU settled a case, for $48,500, in Pittsburgh when a University of Pittsburgh police officer arrested Elijah Matheny and charged him with felony violation of the state’s Wiretap Act for using a cell phone to record police activity. Matheny spent a night in jail following his arrest. [See: Matheny v. County of Allegheny, et al.] The ACLU charged that the district attorney’s office “had engaged in a pattern of erroneously advising law enforcement that audio taping police officers in public violates Pennsylvania’s Wiretap Act.” Following the Third Circuit’s decision in the Kelly case, a conviction against Matheny is expected to be overturned.

The arrests in Philadelphia, Carlisle, and Pittsburgh underscore two major problems, both prevalent throughout the country. The first problem is a lack of understanding and respect for the Constitution by a large number, although not a majority, of police officers. For that reason, all police forces and district attorneys offices, from small isolated rural communities to the largest urban departments, need to have constant education about civil rights and Constitutional guarantees—and the penalties for violating those rights.

The second major problem is inherent within the mass media. Reporters need to know how and when to challenge authority to protect their own and the public’s rights.  A camera crew from the PBS “Frontline” series was at the protest, but abruptly stopped recording the demonstration after Brower was arrested and either before or during Biren-Wright’s arrest. Rob Kall later said that a member of the “Frontline” crew told him the police informed them they would be arrested if they continued to film the demonstration.

Police threats, which violate Constitutional guarantees, place a “chilling effect” upon the media to observe and record actions by public officials. Even without a direct order by a public official, reporters may do what they perceive to be what others want them to do. The media, like police and public officials, also need constant education to know when police orders are lawful and when they are not. An order to move away from a scene may be lawful. An order to stop filming a scene upon threat of arrest is not.

In federal court, in the case of Biren v. City of Philadelphia, et al., these issues, and others, will be raised. But had there been an understanding of the Constitution by the police, the case would never have gotten to the point of a federal civil suit.

As corporate overlords position themselves to seize what little remains of a tattered social net (adieu Medicare and Medicaid! Social Security? Au revoir!), the Obama administration is moving at break-neck speed to expand police state programs first stood-up by the Bush government.

After all, with world share prices gyrating wildly, employment and wages in a death spiral, and retirement funds and publicly-owned assets swallowed whole by speculators and rentier scum, the state better dust-off contingency plans lest the Greek, Spanish or British “contagion” spread beyond the fabled shores of “old Europe” and infect God-fearin’ folk here in the heimat.

Fear not, they have and the lyrically-titled Civil Disturbances: Emergency Employment of Army and Other Resources, otherwise known as Army Regulation 500-50, spells out the “responsibilities, policy, and guidance for the Department of the Army in planning and operations involving the use of Army resources in the control of actual or anticipated civil disturbances.” (emphasis added)

With British politicians demanding a clampdown on social media in the wake of London riots, and with the Bay Area Rapid Transit (BART) agency having done so last week in San Francisco, switching off underground cell phone service to help squelch a protest against police violence, authoritarian control tactics, aping those deployed in Egypt and Tunisia (that worked out well!) are becoming the norm in so-called “Western democracies.”

Secret Law, Secret Programs

Meanwhile up on Capitol Hill, Congress did their part to defend us from that pesky Bill of Rights; that is, before 81 of them–nearly a fifth of “our” elected representatives–checked-out for AIPAC-funded junkets to Israel.

Secrecy News reported that the Senate Intelligence Committee “rejected an amendment that would have required the Attorney General and the Director of National Intelligence to confront the problem of ‘secret law,’ by which government agencies rely on legal authorities that are unknown or misunderstood by the public.”

That amendment, proposed by Senators Ron Wyden (D-OR) and Mark Udall (D-CO) was rejected by voice vote, further entrenching unprecedented surveillance powers of Executive Branch agencies such as the FBI and NSA.

As Antifascist Calling previously reported, the Electronic Frontier Foundation filed a Freedom of Information Act lawsuit against the Justice Department “demanding the release of a secret legal memo used to justify FBI access to Americans’ telephone records without any legal process or oversight.”

The DOJ refused and it now appears that the Senate has affirmed that “secret law” should be guiding principles of our former republic.

Secrecy News also disclosed that the Committee rejected a second amendment to the authorization bill, one that would have required the Justice Department’s Inspector General “to estimate the number of Americans who have had the contents of their communications reviewed in violation of the FISA Amendments Act of 2008 [FAA].”

As pointed out here many times, FAA is a pernicious piece of Bushist legislative detritus that legalized the previous administration’s secret spy programs since embellished by our current “hope and change” president.

During the run-up to FAA’s passage, congressional Democrats, including then-Senator Barack Obama and his Republican colleagues across the aisle, claimed that the law would “strike a balance” between Americans’ privacy rights and the needs of security agencies to “stop terrorists” attacking the country.

If that’s the case, then why can’t the American people learn whether their rights have been compromised?

Perhaps, as recent reports in Truthout and other publications suggest, former U.S. counterterrorism “czar” Richard Clarke leveled “explosive allegations against three former top CIA officials — George Tenet, Cofer Black and Richard Blee — accusing them of knowingly withholding intelligence … about two of the 9/11 hijackers who had entered the United States more than a year before the attacks.”

Clarke’s allegations follow closely on the heels of an investigation by Truthout journalists Jeffrey Kaye and Jason Leopold.

“Based on on documents obtained under the Freedom of Information Act and an interview with a former high-ranking counterterrorism official,” Kaye and Leopold learned that “a little-known military intelligence unit, unbeknownst to the various investigative bodies probing the terrorist attacks, was ordered by senior government officials to stop tracking Osama bin Laden and al-Qaeda’s movements prior to 9/11.”

As readers are well aware, the 9/11 provocation was the pretext used by the capitalist state to wage aggressive resource wars abroad while ramming through repressive legislation like the USA Patriot Act and the FISA Amendments Act that targeted the democratic rights of the American people here at home.

But FAA did more then legitimate illegal programs. It also handed retroactive immunity and economic cover to giant telecoms like AT&T and Verizon who profited handily from government surveillance, shielding them from monetary damages which may have resulted from a spate of lawsuits such as Hepting v. AT&T.

This raises the question: are other U.S. firms similarly shielded from scrutiny by secret annexes in FAA or the privacy-killing USA Patriot Act?

Echelon Cubed

Last week, Softpedia revealed that “Google has admitted complying with requests from US intelligence agencies for data stored in its European data centers, most likely in violation of European Union data protection laws.”

“At the center of this problem,” reporter Lucian Constantin wrote, “is the USA PATRIOT ACT, which states that companies incorporated in the United States must hand over data administered by their foreign subsidiaries if requested.”

“Not only that,” the publication averred, “they can be forced to keep quiet about it in order to avoid exposing active investigations and alert those targeted by the probes.”

In other words, despite strict privacy laws that require companies operating within the EU to protect the personal data of their citizens, reports suggest that U.S. firms, operating under an entirely different legal framework, U.S. spy laws with built-in secrecy clauses and gag orders, trump the laws and legal norms of other nations.

Given the widespread corporate espionage carried out by the National Security Agency’s decades-long Echelon communications’ intercept program, American firms such as Google, Microsoft, Apple or Amazon may very well have become witting accomplices of U.S. secret state agencies rummaging about for “actionable intelligence” on EU, or U.S., citizens.

Indeed, a decade ago the European Union issued its final report on the Echelon spying machine and concluded that the program was being used for corporate and industrial espionage and that data filched from EU firms was being turned over to American corporations.

In 2000, the BBC reported that according to European investigators “U.S. Department of Commerce ‘success stories’ could be attributed to the filtering powers of Echelon.”

Duncan Campbell, a British journalist and intelligence expert, who along with New Zealand journalist Nicky Hager, helped blow the lid off Echelon, offered two instances of U.S. corporate spying in the 1990s when the newly-elected Clinton administration followed up on promises of “aggressive advocacy” on behalf of U.S. firms “bidding for foreign contracts.”

According to Campbell, NSA “lifted all the faxes and phone-calls between Airbus, the Saudi national airline and the Saudi Government” to gain this information. In a second case which came to light, Campbell documented how “Raytheon used information picked up from NSA snooping to secure a $1.4bn contract to supply a radar system to Brazil instead of France’s Thomson-CSF.”

As Softpedia reported, U.S.-based cloud computing services operating overseas have placed “European companies and government agencies that are using their services … in a tough position.”

With the advent of fiber optic communication platforms, programs like Echelon have a far greater, and more insidious, reach. AT&T whistleblower Mark Klein noted on the widespread deployment by NSA of fiber optic splitters and secret rooms at American telecommunications’ firms:

What screams out at you when examining this physical arrangement is that the NSA was vacuuming up everything flowing in the Internet stream: e-mail, web browsing, Voice-Over-Internet phone calls, pictures, streaming video, you name it. The splitter has no intelligence at all, it just makes a blind copy. There could not possibly be a legal warrant for this, since according to the 4th Amendment warrants have to be specific, “particularly describing the place to be searched, and the persons or things to be seized. …

This was a massive blind copying of the communications of millions of people, foreign and domestic, randomly mixed together. From a legal standpoint, it does not matter what they claim to throw away later in their secret rooms, the violation has already occurred at the splitter. (Mark Klein, Wiring Up the Big Brother Machine… And Fighting It, Charleston, South Carolina: BookSurge, 2009, pp. 38-39.)

What was Google’s response?

In a statement to the German publication WirtschaftsWoche a Google corporate spokesperson said:

As a law abiding company, we comply with valid legal process, and that–as for any U.S. based company–means the data stored outside of the U.S. may be subject to lawful access by the U.S. government. That said, we are committed to protecting user privacy when faced with law enforcement requests. We have a long track record of advocating on behalf of user privacy in the face of such requests and we scrutinize requests carefully to ensure that they adhere to both the letter and the spirit of the law before complying.” (translation courtesy of Public Intelligence)

Is the Senate Intelligence Committee’s steadfast refusal to release documents and secret legal memos that most certainly target American citizens also another blatant example of American exceptionalism meant to protect U.S. firms operating abroad from exposure as corporate spies for the government?

It isn’t as if NSA hasn’t been busy doing just that here at home.

As The New York Times reported back in 2009, the “National Security Agency intercepted private e-mail messages and phone calls of Americans in recent months on a scale that went beyond the broad legal limits established by Congress last year.”

Chalking up the problem to “overcollection” and “technical difficulties,” unnamed intelligence officials and administration lawyers told journalists Eric Lichtblau and James Risen that although the practice was “significant and systemic … it was believed to have been unintentional.”

As “unintentional” as ginned-up intelligence that made the case for waging aggressive war against oil-rich Iraq!

In a follow-up piece, the Times revealed that NSA “appears to have tolerated significant collection and examination of domestic e-mail messages without warrants.”

A former NSA analyst “read into” the illegal program told Lichtblau and Risen that he “and other analysts were trained to use a secret database, code-named Pinwale, in 2005 that archived foreign and domestic e-mail messages.”

Email readily handed over by Google, Microsoft or other firms “subject to lawful access” by the Pentagon spy satrapy?

The Times’ anonymous source said “Pinwale allowed N.S.A. analysts to read large volumes of e-mail messages to and from Americans as long as they fell within certain limits–no more than 30 percent of any database search, he recalled being told–and Americans were not explicitly singled out in the searches.”

Nor, were they excluded from such illicit practices.

As Jane Mayer revealed in The New Yorker, “privacy controls” and “anonymizing features” of a program called ThinThread, which would have complied with the law if Americans’ communications were swept into NSA’s giant eavesdropping nets, were rejected in favor of the “$1.2 billion flop” called Trailblazer.

And, as previously reported, when Wyden and Udall sought information from the Office of the Director of National Intelligence on just how many Americans had their communications monitored, the DNI stonewalled claiming “it is not reasonably possible to identify the number of people located in the United States whose communications may have been reviewed under the authority.”

Why? Precisely because such programs act like a giant electronic sponge and soak up and data mine huge volumes of our communications.

As former NSA manager and ThinThread creator Bill Binney told The New Yorker, that “little program … got twisted” and was “used to eavesdrop on the whole world.”

Three years after Barack Obama promised to curb Bush administration “excesses,” illegal surveillance programs continue to expand under his watch.

A Permanent “State of Exception”

Under our current political set-up, “states of exception” and national security “emergencies” have become permanent features of social life.

Entire classes of citizens and non-citizens alike are now suspect; anarchists, communists, immigrants, Muslims, union activists and political dissidents in general are all subject to unprecedented levels of scrutiny and surveillance.

From “enhanced security screenings” at airports to the massive expansion of private and state databases that archive our spending habits, whom we talk to and where we go, increasingly, as the capitalist system implodes and millions face the prospect of economic ruin, the former American republic takes on the characteristics of a corporate police state.

Security researcher and analyst Christopher Soghoian reported on his Slight Paranoia blog, that according to “an official DOJ report, the use of ‘emergency’, warrantless requests to ISPs for customer communications content has skyrocketed over 400% in a single year.”

This is no trifling matter.

As CNET News disclosed last month, “Internet providers would be forced to keep logs of their customers’ activities for one year–in case police want to review them in the future–under legislation that a U.S. House of Representatives committee approved today.”

Declan McCullagh reported that “the 19 to 10 vote represents a victory for conservative Republicans, who made data retention their first major technology initiative after last fall’s elections.”

Significantly, CNET noted that this is also a “victory” for Democratic appointees of Barack Obama’s Justice Department “who have quietly lobbied for the sweeping new requirements.”

According to CNET, a “last-minute rewrite of the bill expands the information that commercial Internet providers are required to store to include customers’ names, addresses, phone numbers, credit card numbers, bank account numbers, and temporarily-assigned IP addresses.”

However, by “a 7-16 vote, the panel rejected an amendment that would have clarified that only IP addresses must be stored.”

Consider the troubling implications of this sweeping bill. While ultra-rightist “Tea Party” Republicans vowed to get “the government off our backs,” when it comes to illicit snooping by securocrats whose only loyalty is to a self-perpetuating security bureaucracy and the defense grifters they serve (and whom they rely upon for plum positions after government “retirement”), all our private data is now up for grabs.

The bill, according to Rep. Zoe Lofgren (D-CA), who spearheaded opposition to the measure said that if passed, it would create “a data bank of every digital act by every American” that would “let us find out where every single American visited Web sites.”

To make the poison pill legislation difficult to oppose, proponents have dubbed it, wait, the “Protecting Children From Internet Pornographers Act of 2011″ even though, as CNET noted, “the mandatory logs would be accessible to police investigating any crime and perhaps attorneys litigating civil disputes in divorce, insurance fraud, and other cases as well.”

Soghoian relates that the 2009 two-page Justice Department report to Congress took 11 months (!) to release under a Freedom of Information Act request.

Why the Justice Department stonewall?

Perhaps, as the Electronic Frontier Foundation disclosed last year, political appointees at the Department of Homeland Security and presumably other secret state satrapies, ordered “an extra layer of review on its FOIA requests.”

EFF revealed that a 2009 policy memo from the Department’s Chief FOIA Officer and Chief Privacy Officer, Mary Ellen Callahan, that DHS components “were required to report ‘significant FOIA activities’ in weekly reports to the Privacy Office, which the Privacy Office then integrated into its weekly report to the White House Liaison.”

Included amongst designated “significant FOIA activities” were requests “from any members of ‘an activist group, watchdog organization, special interest group, etc.’ and ‘requested documents [that] will garner media attention or [are] receiving media attention’.”

Despite the appearance of reporting “emergency” spying requests to congressional committees presumably overseeing secret state activities (a generous assumption at best), “it is quite clear” Soghoian avers, “that the Department of Justice statistics are not adequately reporting the scale of this form of surveillance” and “underreport these disclosures by several orders of magnitude.”

As such, “the current law is largely useless.” It does not apply to “state and local law enforcement agencies, who make tens of thousands of warrantless requests to ISPs each year,” and is inapplicable to “to federal law enforcement agencies outside DOJ.”

“Finally,” Soghoian relates, “it does not apply to emergency disclosures of non-content information, such as geo-location data, subscriber information (such as name and address), or IP addresses used.”

And with Congress poised to pass sweeping data retention legislation, it should be clear that such “requirements” are mere fig leaves covering-up state-sanctioned lawlessness.

War On Terror 2.0.1: Looting the Global Economy

Criminal behavior by domestic security agencies connect America’s illegal wars of aggression to capitalism’s economic warfare against the working class, who now take their place alongside “Islamic terrorists” as a threat to “national security.”

Despite efforts by the Obama administration and Republican congressional leaders to “balance the books” on the backs of the American people through massive budget cuts, as economist Michael Hudson pointed out in Global Research, the manufactured “debt ceiling” crisis is a massive fraud.

The World Socialist Web Site averred that:

As concerns over a double-dip recession in the US and the European debt crisis sent global markets plunging–including a 512-point sell-off on the Dow Jones Industrial Average Thursday–financial analysts and media pundits developed a new narrative. Concern that Washington lacked the ‘political will’ to slash long-standing entitlement programs was exacerbating ‘market uncertainty’.

Leftist critic Jerry White noted that “in fact, the new cuts will only intensify the economic crisis, while the slashing of food stamps, unemployment compensation, health care and education will eliminate programs that are more essential for survival than ever.”

Indeed, as Marxist economist Richard Wolff pointed out in The Guardian, while the “crisis of the capitalist system in the US that began in 2007,” may have “plunged millions into acute economic pain and suffering,” the “recovery” that began in 2009 “benefited only the minority that was most responsible for the crisis: banks, large corporations and the rich who own the bulk of stocks. That so-called recovery never ‘trickled down’ to the US majority: working people dependent on jobs and wages’.”

And despite mendacious claims by political officials and the media alike, the Pentagon will be sitting pretty even as Americans are forced to shoulder the financial burden of U.S. imperial adventures long into an increasingly bleak future.

Defense Secretary Leon Panetta “warned Thursday of dire consequences if the Pentagon is forced to make cuts to its budget beyond the $400 billion in savings planned for the next decade,” The Washington Post reported.

The Post noted that “senior Pentagon officials have launched an offensive over the past two days to convince lawmakers that further reductions in Pentagon spending would imperil the country’s security.”

“Instead of slashing defense,” Panetta urged lawmakers to “rely on tax increases and cuts to nondiscretionary spending, such as Medicare and Social Security, to provide the necessary savings.”

But as Hudson points out, “war has been the major cause of a rising national debt.” After all, it was none other than bourgeois icon Adam Smith who argued that “parliamentary checks on government spending were designed to prevent ambitious rulers from waging war.”

Hudson writes that “if people felt the economic impact of war immediately–rather than postponing it by borrowing–they would be less likely to support military adventurism.”

But therein lies the rub. Since “military adventurism” is the only “growth sector” of an imploding capitalist economy, the public spigot which finances everything from cost-overrun-plagued stealth fighter jets to multi-billion dollar spy satellites, along with an out-of-control National Surveillance State, will be kept open indefinitely.

On this score, the hypocrisy of our rulers abound, especially when it comes to the mantra that “we” must “live within our means.”

As Wolff avers:

Where was that phrase heard when Washington decided to spend on an immense military (even after becoming the world’s only nuclear superpower) or to spend on very expensive wars in Iraq, Afghanistan, Pakistan and Libya (now all going on at the same time)? No, then the talk was only about national security needed to save us from attacks.

“Attacks,” it should be duly noted, that may very well have been allowed to happen as the World Socialist Web Site recently reported.

Driving home the point that war, and not social and infrastructure investment fuel deficits, Hudson averred that “the present rise in in U.S. Treasury debt results from two forms of warfare. First is the overtly military Oil War in the Near East, from Iraq to Afghanistan (Pipelinistan) to oil-rich Libya. These adventures will end up costing between $3 and $5 trillion.”

“Second and even more expensive,” the economist observed, “is the more covert yet more costly economic war of Wall Street against the rest of the economy, demanding that losses by banks and financial institutions be passed onto the government balance sheet (‘taxpayers’). The bailouts and ‘free lunch’ for Wall Street–by no coincidence, Congress’s number one political campaign contributor–cost $13 trillion.”

“Now that finance is the new form of warfare,” Hudson wrote, “where is the power to constrain Treasury and Federal Reserve power to commit taxpayers to bail out financial interests at the top of the economic pyramid?”

And since “cutbacks in federal revenue sharing will hit cities and states hard, forcing them to sell off yet more land, roads and other assets in the public domain to cover their budget deficit as the U.S. economy sinks further into depression,” Hudson wrote that “Congress has just added fiscal deflation to debt deflation, slowing employment even further.”

While the global economy circles the drain, with ever more painful cuts in so-called “entitlement” programs meant to cushion the crash now on the chopping block, the corporate and political masters who rule the roost are sharpening their knives, fashioning administrative and bureaucratic surveillance tools, the better to conceal the “invisible hand” of that bitch-slaps us all.

And they call it “freedom.”

Hebrew had been a dead language for many generations, more or less like Latin, when it was still used in the Catholic church. Then, suddenly, concurrent with the emergence of Zionism (but independently) it sprang back to life. This never happened to any other language.

Theodor Herzl laughed at the idea that Jews in Palestine would speak Hebrew. He wanted us to speak German. “Are they going to ask for a railway ticket in Hebrew?” he scoffed.

Well, we now buy airline tickets in Hebrew. We read the Bible in its Hebrew original and enjoy it tremendously. As Abba Eban once said, if King David were to come to life in Jerusalem today, he could understand the language spoken in the street. Though with some difficulty, because our language gets corrupted, like most other languages.

Anyhow, the position of Hebrew is secure. Babies and Nobel Prize laureates speak it.

The fate of the other miracle is far less assured.

The future – indeed, the present – of Israeli democracy is shrouded in doubt.

It is a miracle, because it did not grow slowly over generations, like Anglo-Saxon democracy. There was no democracy in the Jewish shtetl. Neither is there anything like it in Jewish religious tradition. But the Zionist Founding Fathers, mostly West and Central European Jews, aspired to the highest social ideals of their time.

I have always warned that our democracy has very shallow and tender roots, and needs our constant care. Where did the Jews who founded Israel, and who came here thereafter, grow up? Under the dictatorship of the British High Commissioner, the Russian Czar, the Dictatorship of the Proletariat, the king of Morocco, Pilsudsky’s Poland and similar regimes. Those of us who came from democratic countries like Weimar Germany or the US were a tiny minority.

Yet the founders of Israel succeeded in establishing a vibrant democracy that – at least until 1967 – was in no way inferior, and in some ways superior, to the British or American models. We were proud of it, and the world admired it. The appellation “the Only Democracy in the Middle East” was not a hollow propaganda slogan.

Some claim that with the occupation of the Palestinian territories, which have lived since 1967 under a harsh military regime without the slightest trace of democracy and human rights, this situation already came to an end. Whatever one thinks about that, in fact Israel in its pre-1967 borders maintained a reasonable record until recently. For the ordinary citizen, democracy was still a fact of life. Even Arab citizens enjoyed democratic rights far superior to anything in the Arab world.

This week, all this was put in doubt. Some say that this doubt has now been dispersed, and that a stark reality is being exposed.

Charles Boycott, the agent of a British landowner in Ireland, could never have imagined that he would play a role in a country called Israel 130 years after his name had become a world-wide symbol.

Captain Boycott evicted Irish tenants, who defaulted on their rent because of desperate economic straits. The Irish reacted with a new weapon: no one would speak with him, work for him, buy from him. His name became synonymous with this kind of non-violent action.

The method itself was born even earlier. The list is long. Among others: in 1830 the “negroes” in the US declared a “boycott” of slave-produced products. The later Civil Rights movement started with a boycott of the Montgomery bus company that seated blacks and whites separately. During the American Revolution, the insurgents declared a boycott on British goods. So did Mahatma Gandhi in India.

American Jews boycotted the cars of the infamous anti-Semite Henry Ford. Jews in many countries took part in a boycott of German goods immediately after the Nazis came to power in 1933.

The Chinese boycotted Japan after the invasion of their country. The US boycotted the Olympic Games in Moscow. People of conscience all over the world boycotted the products and the athletes of Apartheid South Africa and helped to bring it to its knees.

All these campaigns used a basic democratic right: every person is entitled to refuse to buy from people he detests. Everyone can refuse to support with his money causes which contradict his innermost moral convictions.

It is this right that has been put to the test in Israel this week.

IN 1997, Gush Shalom declared a boycott of the products of the settlements in the occupied Palestinian territories. We believe that these settlements, which are being set up with the express purpose of preventing the establishment of a Palestinian state, are endangering the future of Israel.

The press conference, in which we announced this step, was not attended by a single Israeli journalist. But the boycott gathered momentum. Hundreds of thousands of Israelis do not buy settlement products. The European Union, which has a trade agreement that practically treats Israel as a member of the union, was induced to enforce the clause that excludes products of the settlements from these privileges.

There are now hundreds of factories in the settlements. They were literally compelled, or seduced, to go there, because the (stolen) land there is far cheaper than in Israel proper. They enjoy generous government subsidies and tax exemptions, and they can exploit Palestinian workers for ridiculous wages. The Palestinians have no other way of supporting their families than to toil for their oppressors.

Our boycott was designed, among other things, to counter these advantages. And indeed, several big enterprises have already given in and moved out, under pressure from foreign investors and buyers. Alarmed, the settlers instructed their lackeys in the Knesset to draft a law that would counter this boycott.

Last Monday, the “Boycott Law” was enacted, setting off an unprecedented storm in the country. Already Tuesday morning, Gush Shalom submitted to the Supreme Court a 22 page application to annul this law.

The “Boycott Law” is a very clever piece of work. Obviously, it was not drafted by the parliamentary simpletons who introduced it, but by some very sophisticated legal minds, probably financed by the Casino barons and Evangelical crazies who support the extreme Right in Israel.

First of all, the law is disguised as a means to fight the de-legitimization of the State of Israel throughout the world. The law bans all calls for the boycott of the State of Israel, “including the areas under Israeli control”. Since there are not a dozen Israelis who call for the boycott of the state, it is clear that the real and sole purpose is to outlaw the boycott of the settlements.

In its initial draft, the law made this a criminal offense. That would have suited us fine: we were quite willing to go to prison for this cause. But the law, in its final form, imposes sanctions that are another thing.

According to the law, any settler who feels that he has been harmed by the boycott can demand unlimited compensation from any person or organization calling for the boycott – without having to prove any actual damage. This means that each of the 300,000 settlers can claim millions from every single peace activist associated with the call for boycott, thus destroying the peace movement altogether.

AS WE point out in our application to the Supreme Court, the law is clearly unconstitutional. True, Israel has no formal constitution, but several “basic laws” are considered by the Supreme Court to function effectively as such.

First, the law clearly contravenes the basic right to freedom of expression. A call for a boycott is a legitimate political action, much as a street demonstration, a manifesto or a mass petition.

Second, the law contravenes the principle of equality. The law does not apply to any other boycott that is now being implemented in Israel: from the religious boycott of stores that sell non-kosher meat (posters calling for this cover the walls of the religious quarters in Jerusalem and elsewhere), to the recent very successful call to boycott the producers of cottage cheese because of their high price. The call of right-wing groups to boycott artists who have not served in the army will be legal, the declaration by left-wing artists that they will not appear in the settlements will be illegal.

Since these and other provisions of the law clearly violate the Basic Laws, the Legal Advisor of the Knesset, in a highly unusual step, published his opinion that the law is unconstitutional and undermines “the core of democracy”. Even the supreme governmental legal authority, the “legal advisor of the government”, has published a statement saying that the law in “on the border” of unconstitutionality. Being mortally afraid of the settlers, he added that he will defend it in court nevertheless. The opportunity for this is not far off: the Supreme Court has given him 60 days to respond to our petition.

A small group of minor parliamentarians is terrorizing the Knesset majority and can pass any law at all. The power of the settlers is immense, and moderate right-wing members are rightly afraid that, if they are not radical enough, they will not be re-elected by the Likud Central Council, which selects the candidates for the party list. This creates a dynamic of competition: who can appear the most radical.

No wonder that one anti-democratic law follows another: a law that practically bars Arab citizens from living in localities of less than 400 families. A law that takes away the pension rights of former Knesset members who do not show up for police investigations (like Azmi Bishara.) A law that abolishes the citizenship of people convicted of “assisting terrorism”. A law that obliges NGOs to disclose donations by foreign governmental institutions. A law that gives preference for civil service positions to people who have served in the army (thus automatically excluding almost all Arab citizens). A law that outlaws any commemoration of the 1948 Naqba (the expulsion of Arab inhabitants from areas conquered by Israel). An extension of the law that prohibits (almost exclusively) Arab citizens, who marry spouses from the Palestinian territories, to live with them in Israel.

Soon to be enacted is a bill that forbids NGOs to accept donations of more than 5000 dollars from abroad, a bill that will impose an income tax of 45% on any NGO that is not specifically exempted by the government, a bill to compel universities to sing the national anthem on every possible occasion, the appointment of a Parliamentary Commission of Inquiry to investigate the financial resources of left-wing [sic] organizations.

Looming over everything else is the explicit threat of right-wing factions to attack the hated “liberal” Supreme Court directly, shear it of its ability to overrule unconstitutional laws and control the appointment of the Supreme Court judges.

Fifty-one years ago, on the eve of the Eichmann trial, I wrote a book about Nazi Germany. In the last chapter, I asked: “Can It Happen Here?”

My answer still stands: yes, it can.

Is there a common thread to these statements? Each writer/thinker/orator is training a highly honed mind upon some of the profoundest concepts of our frail human intellect and imagination: liberty; truth and lying; morality and sin. Each brief statement is a flourishing note—the memorable, essential solo arpeggio in the midst of the orchestral performance. But… beyond the particular insight or theme, each author shares a certain quality of mind—the ability to probe deeper, to turn the mundane or jejune or vapid idea on its head: to look within the essence of the question and oneself… to rotate the squares of the Rubik’s Cube till one gets just the right fit.

Now consider this statement by Justice Antonin Scalia on the Supreme Court’s recent decision to nullify the state of California’s ban on selling “gory” videos to minors:

“Grimm’s Fairy Tales, for example, are grim indeed. As her just desserts for trying to poison Snow White, the wicked queen is made to dance in red hot slippers ‘till she fell dead on the floor.”

What’s missing?

Well, as Wordswoth once responded to a noisome fellow who claimed he could write as well as he—if only he had a mind to: “It is clear that the only thing missing is the mind.”

It is not just that Justice Scalia is making a false analogy, comparing apples and eggs—two very different media—the interactive, sensory-flooding world of “Mortal Kombat,” for example, with the word-by-word, progressive-sequential approach of the literate world… but, also, he seems to have missed a key point. Snow White—and not even an “avatar” of Snow White—is not the agent of the wicked queen’s demise. The queen’s wretched end is a consequence of her violation of higher moral codes—and the ultimate “enforcer” is not some kid with a joystick, but… fate.

Perhaps it is wrong to expect a higher level of thought from our Supreme Court justices? After all, they are not charged with upholding wisdom; merely with the far-easier task of upholding our Constitution—with all its faults.

And just what is this “Constitution,” this “living” document? Reading it, we wander around labyrinths of legalese with various elite interests—slave state vs. commercial; agrarian vs nascent manufacturing—until we come to the fairly clear Bill of Rights.

Except, we’re still trying to figure out “Freedom of Speech”… and, God knows, the Second Amendment is as wide open as Jared Loughner’s surreal gaze. The Constitution is not exactly William Blake’s territory: “Truth can never be told so as to be understood, and not be believed.” More like Butler’s: “We are not required to know the truth, but to speak it, and so with justice.” And in this murky world of truth, half-truths, falsehoods and confusion, the “eternal vigilance” of which Phillips reminds us is the “price of liberty.” And, that vigilance, that review and interpretation is not, ultimately, the province of Supreme Court justices, but is, inviolably, ours—i.e., We the People’s.

Three times in the past 18 months our Supreme Corporate Court has expressed contempt for We the People and elevated the rights and privileges of a select few above the increasingly disenfranchised many. The “prejudice” of these Supremes was clearly manifested in January, 2010 when, according to the New York Times, the Court “ruled that the government may not ban political spending by corporations in candidate elections. … The 5-4 decision was a vindication, the majority said, of the First Amendment’s most basic free speech principle—that the government has no business regulating political speech.” On the other hand, “the dissenters said that allowing corporate money to flood the political marketplace would corrupt democracy.”

Now here’s where things get murky. Nowhere in the Constitution are corporations mentioned. Not until 1819 does the Supreme Court recognize corporations as having some of the “contractual rights” of “persons.” But, while the “rights” of corporations have expanded exponentially in the past couple of centuries, the rights of the People have been abridged. Money, after all, is a marvelous lubricator of “political speech.” While the Court has been telling the wealthy “Full speed ahead,” some 45 million Americans have been getting by on food stamps, and several million more are too worried about their jobs and/or foreclosures to help bankroll local or national candidates. The First Amendment is about Freedom of Speech, Freedom of Expression. It has nothing to do with permitting corporate financial power to overwhelm the free speech of the people—to drown out their voices. Here we are in Mark Twain territory: “You want to be very careful about lying; otherwise, you are nearly sure to get caught.”

The two other instances of Supreme Court-Constitutional perfidies came lickety-split in June, 2011. First the Court decided that 1.5 million female employees of Walmart could not exercise their First Amendment right of Free Speech by uniting in a class-action suit against their alleged gender-biased employer—that global corporation that has helped to finance thousands of factories and sweatshops around the world and driven down wages in the homeland. Again, one thinks of Samuel Butler: “Cannibalism is moral in a cannibal country.” Cannibalizing the working class is fine and dandy, the fat cats caterwaul, but the tasty morsels would be gauche to complain!

Perhaps these salivating cats have not read the First Amendment carefully or they would have understood that the right to petition for governmental redress of grievances also comes within its purview. And, one wonders: if corporations have expanded their rights as persons and have increasingly assumed quasi-governmental powers—often writing legislation through their lobbyists—haven’t We the People the right to petition corporations and our government for a redress of grievances?

The third wave of these judicial outrages came just in time for the 4th of July celebrations of our freedoms! In another 5-4 decision, with Don Scalia writing the majority opinion, the Court effectively told California’s parents they could go screw themselves. (But not in public!)

On John Stewart’s show the other night, I caught a sample of the kind of videos California’s parents did not want sold to their children: an attractive blond in a skin-tight wet-suit was literally being torn apart by two hulking males on either side of her, pulling on her limbs like a chicken’s wishing bone. Guts, blood and gore spill out of the cracked carcass.

Perhaps we should not be surprised that the Court honored the First Amendment Right of Expression of the multi-billion dollar video-“game” industry over the First Amendment Right of millions of Californians to express their opprobrium. (And these citizens, one should note, were not insisting on censorship—they wanted regulation: under the same principles that we regulate the sale of alcohol, tobacco or firearms to minors, or restrict their access to potentially dangerous motor vehicles.) Wise justices might have recalled Ben Franklin: “Sin is not hurtful because it is forbidden, it is forbidden because it is hurtful.”

Probably it is too much to hope, in the majority of these “Justices,” for the quality of mind that can penetrate the great mysteries of life, truth, and morality—not to mention justice and law!. We hope for wisdom and the understanding of great hearts, and we are met with the Wall of the Law. About one hundred and fifty years ago, Chief Seattle of the Duwamish tribe, perceived our fatal dichotomies all too well:

He gave you laws. … Your religion was written upon tables of stone by the iron finger of your God. … Our religion is the traditions of our ancestors—the dreams of our old men… and it is written in the hearts of our people. … Tribe follows tribe, and nation follows nation, like the waves of the sea. It is the order of nature, and regret is useless. Your time of decay may be distant, but it will surely come, for even the White Man whose God walked and talked with him as friend with friend cannot be exempt from the common destiny.

Last week, the New York Times disclosed that the FBI “is giving significant new powers to its roughly 14,000 agents, allowing them more leeway to search databases, go through household trash or use surveillance teams to scrutinize the lives of people who have attracted their attention.”

Under “constitutional scholar” Barack Obama’s regime, the Bureau will revise its “Domestic Investigations and Operations Guide.” The “new rules,” Charlie Savage writes, will give agents “more latitude” to investigate citizens even when there is no evidence they have exhibited “signs of criminal or terrorist activity.”

As the Bill of Rights Defense Committee (BORDC) recently pointed out, “When presented with opportunities to protect constitutional rights, our federal government has consistently failed us, with Congress repeatedly rubber-stamping the executive authority to violate civil liberties long protected by the Constitution.”

While true as far it goes, it should be apparent by this late date that no branch of the federal government, certainly not Congress or the Judiciary, has any interest in limiting Executive Branch power to operate lawlessly, in secret, and without any oversight or accountability whatsoever.

Just last week, The New York Times revealed that the Bush White House used the CIA “to get” academic critic Juan Cole, whose Informed Comment blog was highly critical of U.S. imperial adventures in Iraq and Afghanistan.

The former CIA officer and counterterrorism official who blew the whistle and exposed the existence of a Bush White House “enemies list,”, Glenn L. Carle, told the Times, “I couldn’t believe this was happening. People were accepting it, like you had to be part of the team.”

Ironically enough, the journalist who broke that story, James Risen, is himself a target of an Obama administration witchhunt against whistleblowers. Last month, Risen was issued a grand jury subpoena that would force him to reveal the sources of his 2006 book, State of War.

These latest “revisions” will expand the already formidable investigative powers granted the Bureau by former Attorney General Michael B. Mukasey.

Three years ago, The Washington Post informed us that the FBI’s new “road map” permits agents “to recruit informants, employ physical surveillance and conduct interviews in which agents disguise their identities” and can pursue “each of those steps without any single fact indicating a person has ties to a terrorist organization.”

Accordingly, FBI “assessments” (the precursor to a full-blown investigation) already lowered by the previous administration will, under Obama, be lowered still further in a bid to “keep us safe”–from our constitutional rights.

The Mukasey guidelines, which created the “assessment” fishing license handed agents the power to probe people and organizations “proactively” without a shred of evidence that an individual or group engaged in unlawful activity.

In fact, rather than relying on a reasonable suspicion or allegations that a person is engaged in criminal activity, racial, religious or political profiling based on who one is or on one’s views, are the basis for secretive “assessments.”

Needless to say, the presumption of innocence, the bedrock of a republican system of governance based on the rule of law, like the right to privacy, becomes one more “quaint” notion in a National Security State. In its infinite wisdom, the Executive Branch has cobbled together an investigative regime that transforms anyone, and everyone, into a suspect; a Kafkaesque system from which there is no hope of escape.

Under Bushist rules, snoops were required to open an inquiry “before they can search for information about a person in a commercial or law enforcement database,” the Times reported. In other words, somewhere in the dank, dark bowels of the surveillance bureaucracy a paper trail exists that just might allow you to find out your rights had been trampled.

But our “transparency” regime intends to set the bar even lower. Securocrats will now be allowed to rummage through commercial databases “without making a record about their decision.”

The ACLU’s Michael German, a former FBI whistleblower, told the Times that “claiming additional authorities to investigate people only further raises the potential for abuse.”

Such abuses are already widespread. In 2009 for example, the ACLU pointed out that “Anti-terrorism training materials currently being used by the Department of Defense (DoD) teach its personnel that free expression in the form of public protests should be regarded as ‘low level terrorism’.”

As I reported in 2009, citing a report by the Electronic Frontier Foundation (EFF), the Bureau’s massive Investigative Data Warehouse (IDW), is a data-mining Frankenstein that contains more “searchable records” than the Library of Congress.

EFF researchers discovered that “In addition to storing vast quantities of data, the IDW provides a content management and data mining system that is designed to permit a wide range of FBI personnel (investigative, analytical, administrative, and intelligence) to access and analyze aggregated data from over fifty previously separate datasets included in the warehouse.”

Accordingly, “the FBI intends to increase its use of the IDW for ‘link analysis’ (looking for links between suspects and other people–i.e. the Kevin Bacon game) and to start ‘pattern analysis’ (defining a ‘predictive pattern of behavior’ and searching for that pattern in the IDW’s datasets before any criminal offence is committed–i.e. pre-crime).”

Once new FBI guidelines are in place, and congressional grifters have little stomach to challenge government snoops as last month’s disgraceful “debate” over renewing three repressive provisions of the USA Patriot Act attest, “low-level” inquiries will be all but impossible to track, let alone contest.

Despite a dearth of evidence that dissident groups or religious minorities, e.g., Muslim-Americans have organized violent attacks in the heimat, the new guidelines will permit the unlimited deployment of “surveillance squads” that “surreptitiously follow targets.”

In keeping with the Bureau’s long-standing history of employing paid informants and agents provocateurs such as Brandon Darby and a host of others, to infiltrate and disrupt organizations and foment violence, rules governing “‘undisclosed participation’ in an organization by an F.B.I. agent or informant” will also be loosened.

The Times reports that the revised manual “clarifies a description of what qualifies as a “sensitive investigative matter”–investigations, at any level, that require greater oversight from supervisors because they involve public officials, members of the news media or academic scholars.”

According to the Times, the manual “clarifies the definition of who qualifies for extra protection as a legitimate member of the news media in the Internet era: prominent bloggers would count, but not people who have low-profile blogs.”

In other words, if you don’t have the deep pockets of a corporate media organization to defend you from a government attack, you’re low-hanging fruit and fair game, which of course, makes a mockery of guarantees provided by the First Amendment.

As I reported last month, with requests for “National Security Letters” and other opaque administrative tools on the rise, the Obama administration has greatly expanded already-repressive spy programs put in place by the previous government.

Will data extracted by the Bureau’s Investigative Data Warehouse or its new Data Integration and Visualization System retain a wealth of private information gleaned from commercial and government databases on politically “suspect” individuals for future reference? Without a paper trail linking a person to a specific inquiry you’d have no way of knowing.

Even should an individual file a Freedom of Information Act request demanding the government turn over information and records pertaining to suspected wrongdoing by federal agents, as Austin anarchist Scott Crow did, since the FBI will not retain a record of preliminary inquiries, FOIA will be hollowed-out and become, yet another, futile and meaningless exercise.

And with the FBI relying on secret legal memos issued by the White House Office of Legal Counsel justifying everything from unchecked access to internet and telephone records to the deployment of government-sanctioned malware on private computers during “national security” investigations, political and privacy rights are slowly being strangled.

In 2007, the American Civil Liberties filed a landmark lawsuit, Mohamed et. al. vs. Jeppesen DataPlan, Inc., on behalf of five victims of the Bush administration’s so-called “extraordinary rendition” kidnap and torture program.

The five men, Binyam Mohamed, Ahmed Agiza, Abou Elkassim Britel, Mohamed Farag Ahmad Bashmilah and Bisher al-Rawi, claimed with copious evidence to back their assertions, that their “rendition” and torture was facilitated by the Boeing subsidiary.

Not a single plaintiff was ever charged with a so-called “terrorism” offense let alone convicted of a crime in open court. That didn’t stop America’s shadow warriors from kidnapping, drugging and then whisking them away–aboard aircraft provided by Jeppesen–to CIA “black sites” or the dungeons of close U.S. allies in Europe and the Middle East.

In 2006, the firm’s filthy role in CIA torture programs was exposed by investigative journalist Jane Mayer in The New Yorker.

Indeed, one Bob Overby, Jeppesen’s managing director, said during a breakfast for new hires in San Jose, Calif., “We do all of the extraordinary rendition flights–you know, the torture flights. Let’s face it, some of these flights end up that way.”

Technical writer Sean Belcher blew the whistle on the firm and told Mayer that Overby, extolling the virtues of the corporatist bottom line, said: “It certainly pays well. They”–the CIA–”spare no expense. They have absolutely no worry about cost. What they have to get done, they get done.”

Another recipient of the CIA tender mercies was Khaled el-Masri, a German citizen, who was kidnapped while on vacation in 2004 by the Agency after attempting to cross the border between Serbia and Macedonia.

According to The New Yorker, Masri charged in court papers that “Macedonian authorities turned him over to a C.I.A. rendition team. Then, he said, masked figures stripped him naked, shackled him, and led him onto a Boeing 737 business jet.”

“Flight plans, Mayer reported, “prepared by Jeppesen show that from Skopje, Macedonia, the 737 flew to Baghdad, where it had military clearance to land, and then on to Kabul. On board, Masri has said, he was chained to the floor and injected with sedatives. After landing, he was put in the trunk of a car and driven to a building where he was placed in a dank cell. He spent the next four months there, under interrogation.”

The CIA claimed it was all a case of “mistaken identity” when he was finally released, and dumped penniless, along the side of a road in the former Yugoslavia.

Mayer disclosed that after delivering their human cargo up to torture, “the American flight crew fared better than their passenger. Documents show that after the 737 delivered Masri to the Afghan prison it flew to the resort island of Majorca, where, for two nights, crew members stayed at a luxury hotel, at taxpayers’ expense.”

As a corporate entity directly profiting from the CIA’s torture programs by planning and facilitating Agency ghost flights, Jeppesen bears equal responsibility for serious breeches of U.S. and international law. As a co-conspirator with the CIA, Jeppesen was complicitous in the Agency’s illegal kidnapping and disappearance of “terrorism” suspects into CIA black sites across Europe, Asia and the Middle East.

While American “justice” is now a euphemism for impunity for the ruling rich and a maximum security prison cell for the poor, others are far less squeamish when it comes to pointing the finger, and naming names.

As the Council of Europe reported back in 2007, “The Legal Affairs and Human Rights Committee now considers it factually established that secret detention centres operated by the CIA have existed for some years in Poland and Romania, though not ruling out the possibility that secret CIA detentions may also have occurred in other Council of Europe member states.”

The Council “earnestly deplores the fact that the concepts of state secrecy or national security are invoked by many governments (United States, Poland, Romania, ‘the former Yugoslav Republic of Macedonia’, Italy and Germany, as well as the Russian Federation in the Northern Caucasus) to obstruct judicial and/or parliamentary proceedings aimed at ascertaining the responsibilities of the executive in relation to grave allegations of human rights violations.”

“The Committee also stresses,” human rights rapporteur Dick Marty wrote, “the need to rehabilitate and compensate victims of such violations. Information as well as evidence concerning the civil, criminal or political liability of the state’s representatives for serious violations of human rights must not be considered as worthy of protection as state secrets.”

Not that any of this mattered to the U.S. government. Shortly after the ACLU’s suit was filed, Bush’s Justice Department intervened, claiming that the case could not go forward and asserted the “state secrets privilege,” arguing that evidence presented by the plaintiffs in court detailing their horrific treatment would undermine U.S. “national security.”

Never mind that these programs were hardly secret and had been disclosed by multiple investigations by journalists and human rights organizations. Shortly after taking office in 2009, this position was defended by Barack Obama’s discredited “change” regime, claiming that the entire case was a “state secret.”

During arguments before the Ninth Circuit in early 2009, the San Francisco Chronicle reported that Justice Department attorney Douglas Letter told the court in a thinly-veiled warning that “judges shouldn’t play with fire.”

However, ACLU attorney Ben Wizner said during oral arguments “that the supposedly ultra-secret rendition program is widely known.” Wizner noted “that Sweden recently awarded $450,000 in damages to one of the plaintiffs, Ahmed Agiza, for helping the CIA transport him to Egypt, where he is still being held and allegedly has been tortured.”

“The notion that you have to close your eyes and ears to what the whole world knows is absurd,” Wizner told the court.

Winding its way through the U.S. Ninth Circuit Court of Appeals, a three-judge panel overturned the District Court’s dismissal of the suit, ruling that the government cannot dismiss the case and that the “state secrets privilege” can only be invoked after specific evidence is presented. The three-judge panel went further however, and stated forcefully in their opinion:

At base, the government argues … that state secrets form the subject matter of a lawsuit, and therefore require dismissal, any time a complaint contains allegations, the truth or falsity of which has been classified as secret by a government official. The district court agreed, dismissing the case exclusively because it “involves allegations about [secret] conduct by the CIA.” This sweeping characterization of the “very subject matter” bar has no logical limit–it would apply equally to suits by US citizens, not just foreign nationals; and to secret conduct committed on US soil, not just abroad. According to the government’s theory, the Judiciary should effectively cordon off all secret government actions from judicial scrutiny, immunizing the CIA and its partners from the demands and limits of the law.

But there’s the rub: the secret state had no intention of ever presenting evidence that the plaintiffs’ treatment was “legal,” and in fact, sought to cover their tracks and those of their defense industry partners in the hope of completely erasing this case, and others, including those involving the government’s illegal warrantless wiretapping programs which most certainly “cordon off all secret government actions from judicial scrutiny,” effectively expunging evidence of government crime from the public record.

Undaunted, the Obama administration appealed the decision before a full panel of 11 judges, and in September 2010, that panel reversed the Ninth Circuit’s earlier ruling by a 6-5 vote.

Last December, the ACLU petitioned the Supreme Court to review the lower court’s decision dismissing the lawsuit, but the Court declined.

“With today’s decision, Ben Wizner, the litigation director of the ACLU’s National Security Project, said in a press release, that “the Supreme Court has refused once again to give justice to torture victims and to restore our nation’s reputation as a guardian of human rights and the rule of law.”

Decrying the court’s refusal to review the case against Jeppesen, Wizner said that “to date, every victim of the Bush administration’s torture regime has been denied his day in court. But while the torture architects and their enablers have escaped the judgment of the courts, they will not escape the judgment of history.”

Last month’s dismissal of the ACLU’s petition is all the more ironic considering that the Court, in an 8-1 ruling, permits police to conduct searches of private homes without benefit of obtaining a warrant if they believe an “exigent [emergency] circumstance” prevails.

In other words, we’re to meekly submit to the further erosion of Fourth Amendment protections and can no longer seek relief from the courts simply because police, whom we know never lie or frame criminal defendants, have reason to “suspect” that illegal behavior is taking place behind closed doors!

But as the World Socialist Web Site points out, “a host of recent decisions, all of which in one way or another purport to show ‘deference’ to the executive, whether for reasons of ‘national security,’ ‘state secrets,’ or the ‘exigencies’ of police work, the Supreme Court is abandoning any effort to restrain the exercise of executive power.”

Socialist critic Tom Carter writes, “These decisions, taken together, effectively relegate a US judge to the same role as a judge in a police state, who functions merely as an after-the-fact rubber stamp for executive decisions,” and “should be taken as a warning of things to come.”

While the three Ninth Circuit judges who slapped down the Obama administration’s spurious claim of “state secrets” in the Mohamed vs. Jeppesen case believe that “the Founders of this Nation knew well … arbitrary imprisonment and torture under any circumstance is a gross and notorious act of despotism,” it should be abundantly clear by now that America’s ruling class has no interest in defending basic democratic rights as the drift towards a police state under Bush and Obama has become a repressive tsunami.