Constitutional attorney and author John W. Whitehead is founder and president of The Rutherford Institute. His new book The Freedom Wars (TRI Press) is available online at http://www.amazon.com.
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By John W. Whitehead
“The United States today is like a cruise ship on the Niagara River upstream of the most spectacular falls in North America. A few people on board have begun to pick up a slight hiss in the background, to observe a faint haze of mist in the air or on their glasses, to note that the river current seems to be running slightly faster. But no one yet seems to have realized that it is almost too late to head for shore.”–Historian and author Chalmers Johnson
Keeping up with the real news can be difficult today–especially since those who provide us with the “news” often deliver entertainment packaged as news. In this way, what passes for news today serves merely to distract us from what is really happening in the world around us. Gradually, the powers-that-be have erected a police/surveillance state around us. This is reflected in the government’s single-minded quest to acquire ever greater powers, the fusion of the police and the courts, and the extent to which our elected representatives have sold us out to the highest bidders–namely, the corporate state and military industrial complex.
Indeed, a handful of seemingly unrelated incidents in the week leading up to Memorial Day perfectly encapsulated how much the snare enclosing us has tightened, how little recourse we really have–at least in the courts, and how truly bleak is the landscape of our freedoms. What these incidents reveal is that the governmental bureaucracy has stopped viewing us, the American people, as human beings who should be treated with worth and dignity. That was the purpose of the Bill of Rights. The Fourth Amendment’s protection against unreasonable searches and seizures of our persons and effects was designed so that government agents would be forced to treat us with due respect. With this protection now gone, those who attempt to exercise their rights will often be forced to defend themselves against an increasingly inflexible and uncompromising government.
For example, on May 24, 2011, a Virginia Circuit Court refused to reverse the expulsion of a 14-year-old honor student charged under a school zero tolerance policy with “violent criminal conduct” and possession of a weapon for shooting plastic “spitballs” at classmates. This young man was eventually faced with three assault and battery charges as a result of three students being hit on the arms by the spitballs. Despite the fact that the judge acknowledged the school’s punishment to be overreaching, he refused to intervene, essentially washing his hands of the matter and leaving it to the schools to act as they see fit.
Two days later, on May 26, the U.S. Supreme Court–the highest court in the land, in a devastating ruling that could very well do away with what little Fourth Amendment protections remain to public school students and their families, threw out a lower court ruling inAlford v. Greene which required government authorities to secure a warrant, a court order or parental consent before interrogating students at school. The ramifications are far-reaching, rendering public school students as wards of the state. Once again, the courts sided with law enforcement against the rights of the people.
That night, in a race against the clock, Congress pushed through a four-year extension of three controversial provisions in the USA Patriot Act that authorize the government to use aggressive surveillance tactics in the so-called war against terror. Since being enacted in 2001, the Patriot Act has driven a stake through the heart of the Bill of Rights, violating at least six of the ten original amendments–the First, Fourth, Fifth, Sixth, Seventh and Eighth Amendments–and possibly the Thirteenth and Fourteenth Amendments, as well. The Patriot Act has also redefined terrorism so broadly that many non-terrorist political activities such as protest marches, demonstrations and civil disobedience are considered potential terrorist acts, thereby rendering anyone desiring to engage in protected First Amendment expressive activities as suspects of the surveillance state.
Under the Patriot Act, for the first time in American history, federal agents and police officers are authorized to conduct black bag “sneak-and-peak” searches of homes and offices and confiscate your personal property without first notifying you of their intent or their presence. The law also grants the FBI the right to come to your place of employment, demand your personal records and question your supervisors and fellow employees, all without notifying you; allows the government access to your medical records, school records and practically every personal record about you; and allows the government to secretly demand to see records of books or magazines you’ve checked out in any public library and Internet sites you’ve visited (at least 545 libraries received such demands in the first year following passage of the Patriot Act).
In the name of fighting terrorism, government officials have been permitted to monitor religious and political institutions with no suspicion of criminal wrongdoing; prosecute librarians or keepers of any other records if they told anyone that the government had subpoenaed information related to a terror investigation; monitor conversations between attorneys and clients; search and seize Americans’ papers and effects without showing probable cause; and jail Americans indefinitely without a trial, among other things. The federal government has also made liberal use of its new powers, especially through the use (and abuse) of the nefarious national security letters, which allow the FBI to demand personal customer records from Internet Service Providers, financial institutions and credit companies at the mere say-so of the government agent in charge of a local FBI office and without prior court approval.
Unfortunately, despite the fact that the Patriot Act has been perversely applied to average Americans, when some of the more controversial provisions recently came up for renewal, they were passed by many of the same individuals–many ushered into office on the impetus of the Tea Party–who had claimed to oppose it. Within hours of the Patriot Act extension being passed, however, Sen. Ron Wyden (D-Oregon), a member of the Senate Intelligence Committee, revealed in an interview that the “real” Patriot Act is classified. In other words, Wyden’s message is that the government has been broadly interpreting the Patriot Act for its own purposes and keeping that interpretation under wraps. Stated Wyden: “We’re getting to a gap between what the public thinks the law says and what the American government secretly thinks the law says.” Thus, the violations of the Patriot Act are worse than we thought.
Then, on May 28, a small group of young people showed up at the Jefferson Memorial in Washington, DC, to protest a recent appeals court ruling that expressive dancing is prohibited at the memorial. The ruling concerned a 2008 incident in which a group of 20 people descended on the Jefferson Memorial at midnight for a flash mob–a spontaneous (and silent) dance tribute to Jefferson on the eve of his 265th birthday. Of the 20, one–Mary Oberwetter–was arrested, handcuffed and charged with failing to follow police orders and interfering with operation of the memorial. Oberwetter sued, insisting on a First Amendment right to free speech, only to have the court declare that the U.S. Park Service has a duty to maintain “decorum” at the nation’s monuments and that any demonstrations, whether one person or many, are not allowed inside the nation’s memorials. A subsequent appeal to the U.S. Court of Appeals for the District of Columbia resulted in a ruling that “expressive dancing falls within the spectrum of prohibited activities” and that “the Park Service has a substantial interest in promoting a tranquil environment at our national memorials.”
In response to the ruling, a motley crew of activists, determined to exercise their First Amendment right to free expression and protest and armed with nothing more than headphones, entered the Jefferson Memorial on May 28, 2011, the weekend before Memorial Day. “The founders understood that the only thing that was going to make the American experiment succeed was the people standing up for these rights,” Jared Denman, one of the demonstrators, remarked. Unfortunately, this particular experiment was short-lived.
Adam Kokesh body slammed, choked, police brutal…, posted with vodpod
Swaying minimally to whatever music was in their heads, the small group barely had time to “bust a move” before Park Police descended on them. The resulting fracas, in which police choked and body slammed one protester, Adam Kokesh, handcuffed others and shut the memorial down altogether, was captured on YouTube (click here to watch). Mind you, these were people who were silently dancing–a far cry from violent drug dealers or armed dissidents. One couple was simply holding each other in an affectionate embrace and swaying, only to be forcibly separated and handcuffed. “I’m not shutting up. You cannot shut me up,” shouted one of the dancers. “That’s not the way this works. You cannot shut anyone up. You cannot stop them from dancing. You cannot stop them from kissing… This is a police state!”
Indeed, for anyone wanting to truly understand what it is to live in a police state, which U.S. Supreme Court Justice William O. Douglas defined as one “in which all dissent is suppressed or rigidly controlled,” I would strongly recommend watching the footage. This Jefferson Memorial event is just the latest in a long series of incidents that clearly illustrate the extent to which our government has adopted an authoritarian mindset, one that is most clearly seen in the way law enforcement deals with American citizens.
Consider, for example, a recent incident involving a young ex-Marine who was killed after a SWAT team kicked open the door of his Arizona home during a drug raid and opened fire. According to news reports, Jose Guerena, 26 years old and the father of two young children, grabbed a gun in response to the forced invasion but never fired. In fact, the safety was still on his gun when he was killed. Police officers were not as restrained. The young Iraqi war veteran was allegedly fired upon 71 times in what appears to be yet another senseless killing. Guerena had no prior criminal record, and the police found nothing illegal in his home. Incredibly, medical authorities were kept away from the scene for more than an hour, by which time it was too late to save Guerena’s life.
Shocking, yes, but what’s more shocking is that such raids, which annihilate the Fourth Amendment, are actually being sanctioned by the courts. Just a few weeks ago, the Indiana Supreme Court broadly ruled in Barnes v. State that people don’t have the right to resist police officers who enter their homes illegally–which, by the way, is the state of law across the country. And then within days of that ruling, the U.S. Supreme Court effectively decimated the Fourth Amendment in an 8-1 ruling in Kentucky v. King by giving police more leeway to smash down doors of homes or apartments without a warrant when in search of illegal drugs which they suspect might be destroyed if the Fourth Amendment requirement of a warrant were followed.
What these assorted court rulings and incidents add up to is a nation that is fast imploding, one that is losing sight of what freedom is really all about and, in the process, is transitioning from a republic governed by the people to a police state governed by the strong arm of the law. In such an environment, the law becomes yet another tool to oppress the people. Hence, as a recent report points out, “Federal criminal law has exploded in size and scope and deteriorated in quality. It used to focus on inherently wrongful conduct: treason, murder, counterfeiting, and the like. Today, an unimaginably broad range of socially and economically beneficial conduct is criminalized…. Despite existing overcriminalization, Congress continues to criminalize at an average rate of one new crime for every week of every year (including when its Members are not in session).”
America is spiraling into an authoritarian vortex from which there appears to be no return. And if freedom is to survive, we’re going to need leaders–not talking news heads or politicians at rallies–who will, like the great dissidents of the past such as Mahatma Gandhi, dare to defy the “law” and the establishment in effectuating change.
One thing is clear: the time to act is now. Martin Luther King, Jr. eloquently addressed this need for urgency in the face of injustice and oppression in his “Letter from Birmingham City Jail.” Dr. King wrote this stirring essay on April 16, 1963, while serving a sentence for participating in civil rights demonstrations in Birmingham, Alabama–one of the most racially segregated cities in the country at the time. Although King rarely bothered to defend himself against his opponents, he put pen to paper when eight prominent “liberal” Alabama clergypersons, all white, published an open letter castigating King for inciting civil disturbances through nonviolent resistance. The clergymen called on King to let the local and federal courts deal with the question of integration. King, however, understood that if justice and freedom were to prevail, African-Americans could not afford to be long-suffering. Quoting U.S. Supreme Court Justice Thurgood Marshall, King wrote, “Justice too long delayed is justice denied.” Action was needed immediately. In his letter, King declared:
We are caught in an inescapable network of mutuality, tied in a single garment of destiny. Whatever affects one directly affects all indirectly. Never again can we afford to live with the narrow, provincial “outside agitator” idea. Anyone who lives in the United States can never be considered an outsider anywhere in this country…. Nonviolent direct action seeks to create such a crisis and establish such creative tension that a community that has constantly refused to negotiate is forced to confront the issue. It seeks so to dramatize the issue that it can no longer be ignored…. We know through painful experience that freedom is never voluntarily given by the oppressor; it must be demanded by the oppressed…. You express a great deal of anxiety over our willingness to break laws. This is certainly a legitimate concern…. One may well ask, “How can you advocate breaking some laws and obeying others?” The answer is found in the fact that there are two types of laws: there are just and there are unjust laws. I would agree with Saint Augustine that “An unjust law is no law at all.”… Any law that uplifts human personality is just. Any law that degrades human personality is unjust…. I submit that an individual who breaks a law that conscience tells him is unjust, and willingly accepts the penalty by staying in jail to arouse the conscience of the community over its injustice, is in reality expressing the very highest respect for law…. We can never forget that everything Hitler did in Germany was “legal” and everything the Hungarian freedom fighters did in Hungary was “illegal.” It was “illegal” to aid and comfort a Jew in Hitler’s Germany. But I am sure that if I had lived in Germany during that time I would have aided and comforted my Jewish brothers even though it was illegal…. It is the strangely irrational notion that there is something in the very flow of time that will inevitably cure all ills. Actually time is neutral. It can be used either destructively or constructively. I am coming to feel that the people of ill will have used time much more effectively than the people of good will…. But as I continued to think about the matter I gradually gained a bit of satisfaction from being considered an extremist. Was not Jesus an extremist in love–“Love your enemies, bless them that curse you, pray for them that despitefully use you.”… Was not Abraham Lincoln an extremist–“This nation cannot survive half slave and half free.” Was not Thomas Jefferson an extremist–“We hold these truths to be self-evident, that all men are created equal.” So the question is not whether we will be extremist but what kind of extremist will we be. Will we be extremists for hate or will we be extremists for love?