Suppression and Liberty

"Immigration is not a problem to be solved. It is the sign of a confident and successful nation. And people who seek to make America their home should be met in that spirit by representatives of our government. New arrivals should be greeted not with suspicion and resentment, but with openness and courtesy."
President George W. Bush, on July 10, 2001. Ellis Island, New York

"Faith shows us the reality of good, and the reality of evil," President Bush said at a prayer breakfast shortly after 9-11. "Some acts and choices in this world have eternal consequences. It is always, and everywhere, wrong to target and kill the innocent. It is always, and everywhere, wrong to be cruel and hateful, to enslave and oppress." 21

President Lincoln spoke to the notion of divinity's mandate to vigilance when he remarked on the violence of the abolitionist, John Brown in his Cooper Union address.

He said, "An enthusiast broods over the oppression of a people till he fancies himself commissioned by heaven to liberate them."

"Human action can be modified to some extent, but human nature cannot be changed," he continued. "There is a judgment and a feeling against slavery in this nation, which cast at least a million and a half of votes. You cannot destroy that judgment and feeling - that sentiment - by breaking up the political organization which rallies around it." 22

Lincoln suffered for the success of his war at the point of a terrorist's gun. It would be impossible to argue that he died merely for the defense of territory. The surrender of the southern army brought freedom for the majority of slaves. And, no matter how we judge the immediate impact of Lincoln's proclamation, the victory led to the emancipation and the subsequent empowerment of Africans in America.

Lincoln believed that adherence to the principles of democracy would distinguish any victory in a manner that would provide for the durability of the Union and foster a national affirmation of the rights of the individual.

"It was that," he said, "which gave promise that in due time the weight would be lifted from the shoulders of all men." 23

Regrettably, Lincoln would later contradict that sentiment when he set up a military tribunal and suspended the writ of habeas corpus, imprisoning more than 13,000 southerners, who he determined to be agitating unlawfully against the Union.

Although he first applied the suspension only to the succeeding states which he regarded as an insurrection, he was rightly condemned for the tyrannical use of the force of government to stifle the opposition. He was wrong even though the suspension was temporary, and most of his efforts were in response to the sabotage of the railroads, and to counter those who were calling for the desertion of his northern forces.

Lincoln's actions in suppressing the rights of the "enemy" southerners reflected the attitudes of the more radical of his supporters who regarded the ascension of their Republican party in the southern statehouses as an inevitable political destiny of the war.

And so it is, in all military campaigns, that in the pursuit of our ‘enemies,’ we become so convinced of the rightness of our cause that we detach ourselves from the consequences of the dehumanization of our opponents. When opposing powers war, how do we distinguish between lawful opposition and insurrection?

Lincoln addressed the question of the suspension of the privilege of the writ in a July 4, 1861 message to a wary Congress; clearly torn between defending against subversives who advocated secession, and the application of the absolute power of his executive Presidency.

"Of course," he wrote, "some consideration was given to the questions of power and propriety, before this matter was acted upon. Are all the laws, but one to go unexecuted, and the government go to pieces, lest that one be violated? . . . would not the official oath be broken, if the government be overthrown?" 24

Thomas Jefferson had no sympathy for a federal government which had violated its compact with the governed. He wrote in opposition to the Alien and Sedition laws that, ". . . whensoever the general government assumes undelegated powers, its acts are unauthoritative, void and of no effect."

Jefferson asserted that, "The several states composing the United States of America are not united on the principle of unlimited submission to their general government; but that, by compact, under the style and title of the Constitution of the United States, and of certain amendments thereto, they constituted a general government for general purposes, delegated to that government certain powers." 25

But Lincoln felt that the preservation of the confederation took precedence over all else; noting that the Constitution was conceived, not only to secure liberty, but to secure the "formation of a more perfect Union"

However, a year after the war ended, the Supreme Court would rule that Lincoln had exceeded his authority. And despite Congress' acquiescence in its subsequent approval of Lincoln's arbitrary actions in its passing of the Habeas Corpus bill of 1863, the court found that the president was not protected by the constitution in his suspension of the citizen's rights, even in wartime.

That opinion has not dissuaded presidents in the centuries thereafter from using the power of government to mandate loyalty, stifle opposition and imprison those they considered enemies of the state.

Woodrow Wilson urged legislative action against those who had "sought to bring the authority and 'good name' of the Government into contempt." He worried in his declaration of war, about "spies and criminal intrigues everywhere afoot" which had filled "our unsuspecting communities and even our offices of government." 26

During his presidency more than 2,000 American citizens were jailed for protest, advocacy, and dissent, with the support of a compliant Supreme Court. 27

The Wilson-era assaults on civil liberties; Schenck v. U.S.; Frohwerk v. U.S.; Debs v. U.S., Abrams v. U.S., were ratified by Supreme Court decisions which asserted that free speech in wartime was a hindrance to the efforts of peace. 28

Justice Holmes, in upholding the 1919 Schnek case, in which leaflets were distributed that expressed opposition to the draft, wrote of the words of protest: "Their utterance will not be endured so long as men fight" (referring to the war), and that "no court could regard them as protected by any constitutional right."

Justices Brennan and Holmes wrote the majority opinion which was phrased as the new "clear and present danger" test in which they argued: "The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree." 29

Justice Holmes said, "We think it necessary to add to what has been said in Schenck v. United States . . . only that the First Amendment while prohibiting legislation against free speech as such cannot have been, and obviously was not, intended to give immunity for every possible use of language. We venture to believe that neither Hamilton nor Madison, nor any other competent person then or later, ever supposed that to make criminal the counseling of a murder within the jurisdiction of Congress would be an unconstitutional interference with free speech." 30

The Court wanted to draw a clear line between free speech and harmful speech, but their reasoning was blunt. The effect of the ruling was a stifling of protest and dissent.

In the case of Frohwerk, the Supreme Court used the Schnek decision to uphold the convictions of two newspaper workers for publishing articles which condemned the war.

The Schnek decision was also used by the Supreme Court in 1919 to uphold the conviction of Eugene Debs under the Espionage Act for giving a public address condemning capitalism, advocating socialism, and speaking in defense of those who had been imprisoned for exercising their free speech rights. Similarly, in the case of Abrams, the Supreme Court upheld the conviction for distributing antiwar leaflets.

Eventually Holmes would move away from his ruling on Schnek in his dissent in the Court's upholding of Abrams. Justice Holmes worried in his minority opinion that, "A patriot might think that we were wasting money on aeroplanes, or making more cannon of a certain kind than we needed, and might advocate curtailment with success." 31

In the 1917 case of Masses Publishing v Patten, at the beginning of WWI, Masses Publishing had argued against the postmaster general's refusal to allow the distribution of its journal which attacked capitalism. Justice Learned Hand had ruled that the draft violated the First Amendment. Hand said that, ". . . the government may prosecute words that are "triggers to action" but not words that are "keys of persuasion." A reversal promptly followed his decision. 32

Not until 1969, would the Supreme Court unanimously abandon the Schnek standard to overturn the conviction in the case of Brandenburg v. Ohio; in support of the free speech rights of a member of the Ku Klux Klan. 33

The broad decision in Brandenburg gave future courts room for the passage of the many protections of public expression and advocacy which we rely on today in our dissent and protest.

Justice Douglas wrote in 1958 that: "Advocacy that is no way brigaded with action should always be protected by the First Amendment. That protection should extend even to the actions we despise."


President Bush's reaction to the terrorist attacks on 9-11 was a mix of defiance and rhetoric in his defense of the 'freedom' that he said the attackers wanted to 'destroy'.

"They hate our freedoms - our freedom of religion, our freedom of speech, our freedom to vote and assemble and disagree with each other," he declared in an address to a joint session of Congress.

"With every atrocity, they hope that America grows fearful, retreating from the world and forsaking our friends," he said. "They stand against us, because we stand in their way." 34

In his statement at the signing of the "antiterrorism," Patriot Act, in October 2001, six weeks after the terrorist attacks on the World Trade Center, President Bush claimed that the measure would counter the threat of enemies that "recognize no barrier of morality and have no conscience." He sought to assure that the measure "upheld and respected the civil liberties guaranteed by our Constitution." He ends his statement with a pledge to enforce the law with "all of the urgency of a nation at war." 35

However, the President neglected to tell us which war he was referring to. The antiterrorism measure was cobbled together in a few short months to take political advantage of the urge in Congress for a legislative response to the terrorist attacks, despite the president's claim that the bill was "carefully drafted and considered." It is a direct assault on the liberty, privacy, and free expression of all Americans.

We should have realized how far reaching this new authority was when the president Bush referred to the bill as a "balanced piece of legislation," and, in the next breath complained that, ". . . investigations are often slowed by limit on the reach of federal search warrants."

Attorney General John D. Ashcroft, at the president's direction, presented a plan; The Patriot Act of 2001, Public Law 107-56, to monitor the activities of ordinary Americans 36, which would rival the Reichstag Fire Decree. (Allowed the Nazi government to take any "appropriate" measure to remedy dangers to public safety, and represented one of the major steps in which the Nazi government established its rule.) 37

Ashcroft, a former state Attorney General, Governor and U.S. Senator from Missouri, has most of his wealth in life insurance policies and Missouri farmland. He has owned stock in Reliant Energy, AT&T, Duke Energy and AXA Financial. After he lost his last election to a dead opponent, President Bush gratuitously appointed him to lord over all law enforcement in the U.S.

His appointment to the post of Attorney General appears to stem from his close relationship to chief of staff Karl Rove, who has been paid up to $750,000 by Ashcroft for "consulting fees."

In an interview on the second anniversary of the September 11 terrorist attacks, Ashcroft boasted that the Patriot Act "took down the wall" that used to exist between the intelligence and law enforcement communities, allowing them to share information more easily.

That's fine for law enforcement, but what about the law - abiding rest of us?

The Patriot Act of 2001 makes it easier for the government to retrieve a person's credit, medical and student records without notifying them, regardless of whether or not they are official suspects. One provision states that any person or institution served with a search warrant is not to disclose to anyone that they have been served.

The law it makes it easier for authorities to use "roving surveillance," authorizing the use of devices to trace the telephone calls or e-mails of people who are not suspected of any crime. It also erases the restrictions on secret home searches, which also can be done without notifying the subject.

The bill gives the authority for surveillance of citizens under a law intended to monitor foreigners. It amends laws such as the Foreign Intelligence Surveillance Act (FISA) to allow the government to spy on Americans.

One section allows for the indefinite detention of non-citizens determined by the Attorney General to be terrorists, and requires no judicial review. The act permits non-citizens to be jailed based on mere suspicion and to be denied re-admission to the U.S. for engaging in free speech.

According to the ACLU, the Patriot Act would, for the first time, allow the Justice Dept. to monitor privileged attorney-client conversations, permit FBI agents to monitor houses of worship, require local law enforcement to enforce civil immigration law and allow for companies such as nuclear facilities to keep secret, the flaws in their infrastructure by sharing that information with the Homeland Security Department. 38

The act allows the investigation of Americans based on certain activities such as the participation in a protest or any form of activism. The American Civil Liberties Union has charged that at events attended by President Bush and other senior federal officials around the country, the Secret Service has been discriminating against protesters in violation of their free speech rights.

The ACLU's legal papers listed more than a dozen examples of police censorship around the country. According to their fact sheet, "such incidents have spiked under the Bush administration, prompting the ACLU to charge government officials with a "pattern and practice" of discrimination against those who disagree with its policies." The ACLU has asked a federal court for a nationwide injunction barring the Secret Service from directing local police to restrict protesters' access to appearances by President Bush and other senior administration officials.

Most of the Patriot act amends existing federal statutes that were targeted by conservatives before the 9-11 terrorist attacks. (Like the Foreign Intelligence Surveillance Act 39, which was enacted in the wake of FBI surveillance of U.S. citizens in the '60's and the '70's) This national security intelligence tool is being recklessly manipulated in the administration's zeal to prosecute their cynical "war on terrorism."

The ACLU asked the Supreme Court to review whether the Constitution and the Patriot Act permitted the government to use looser foreign intelligence standards to conduct surveillance in criminal investigations in the United States. The Supreme Court refused that request.

The FISA was sponsored in the ‘60's by Sen. Edward Kennedy and others in an attempt to reign in warrantless surveillance. But the FBI and the NSA have used the act to set up secret courts and have perverted the act to conduct surveillance for domestic criminal investigations in addition to their foreign counterintelligence probes.

The FISA court and the Court of Review authorize government wiretaps in foreign intelligence investigations. Under FISA, all hearings and decisions are conducted in secret. The government is normally the only party to FISA proceedings and the only party that can appeal to the Supreme Court.

In an appeal, the ACLU argued that,"These fundamental issues should not be finally by courts that sit in secret, do not ordinarily publish their decisions, and allow only the government to appear before them."

The ACLU and its supporters have asserted that some of their members and many other Americans are currently subject to illegal surveillance, noting that the FBI has already targeted its members in numerous other ways. Under the FISA statute, a U.S. citizen may be subject to a FISC surveillance order for political statements and views that are determined to be unpopular by the secret Court of Review .

According to the ACLU:
- 8,000 Arab and South Asian immigrants have been interrogated because of their religion or ethnic background, not because of actual wrongdoing.
- Thousands of men, mostly of Arab and South Asian origin, have been held in secretive federal custody for weeks and months, sometimes without any charges filed against them. The government has refused to publish their names and whereabouts, even when ordered to do so by the courts.
- The press and the public have been barred from immigration court hearings of those detained after September 11th and the courts are ordered to keep secret even that the hearings are taking place.
- The government is allowed to monitor communications between federal detainees and their lawyers, destroying the attorney-client privilege and threatening the right to counsel.
- New Attorney General Guidelines allow FBI spying on religious and political organizations and individuals without having evidence of wrongdoing.
- President Bush has ordered military commissions to be set up to try suspected terrorists who are not citizens. They can convict based on hearsay and secret evidence by only two-thirds vote.
- American citizens suspected of terrorism are being held indefinitely in military custody without being charged and without access to lawyers.

It's amazing to me how the inhabitants of this land we call America - a country obtained and founded through force and deception by an immigrant, Anglo/Saxon pack of misogynist thugs - can assert their nationalism and detach themselves from the global influences that were essential, critical elements in the establishment of our nation and in the sustaining the people who settled here.

The Europeans were immigrants to this land. The original inhabitants comprised a vast nation of many languages and many different cultures that existed together for centuries.

Immigrants and their children raise the incomes of American workers by $10 billion each year. Immigrants pay $80,000 more in taxes than they receive in total benefits over their lifetimes.

More than 60,000 active military personnel are immigrants. Immigrants account for five percent or more of active duty enlisted personnel in some branches of the military.

In every provision, the Patriot act enhances or expands the government's ability to intrude in the private affairs of American citizens and weakens the very protections of freedom and individual rights that are embodied in the Constitution and the Bill of Rights, which they claim to defend.

Further, the manner in which the Supreme Court intervened to halt the recount of the Florida election ballot, and effectively assured the ascendence of President Bush to the presidency, must be factored into any expectation of impartiality in higher court decisions involving prosecutions for dissent whose appellants challenge the motives and the prerogatives of the executive, especially in times of war.

These constitutional protections serve to restrain our government and its elected representatives as they perform their duties, to act in a manner which preserves the promises of democracy and provides for free expression, debate, and advocacy, and representation in our political and legal system.

Without these constitutional protections, it is impossible for the government to act decisively on the assumption it has the full weight of the American people behind any decision it might make.

In wartime, this weak franchise may wrongfully view opposition as treason and seek to crush it. But in the absence of the full consent of the governed, such a heavy hand by the omnipresent government could rightly be seen as tyranny.


These are excerpts from my book, Power Of Mischief: http://www.returningsoldiers.us/pompage.htm

Download the book for free!
http://www.returningsoldiers.us/Power%20Of%20Mischief4.pdf

Here's my list of numbered, linked references for the book (253 links):
http://returningsoldiers.us/biblio.htm

I hope folks are reading. Cheers.

:kick: