Belaboring the Obvious

Thursday, September 24, 2009

"Just Trust Us"

These days, that phrase is evocative of such cultural mainstays as "the check is in the mail" and "I promise I won't come in your mouth."

When it comes to how the national security state relates to the citizens that are nominally, Constitutionally, presumptively the ultimate arbiters of what government is and does, there's not much to trust. The latest example is the Obama administration's supposed redefinition of the procedural guidelines for invocation of the state secrets privilege.

As Nick Baumann suggests, the changes are cosmetic, rather than structural, and are only intended to bamboozle the media Villagers, who will describe these changes as substantial, when, in fact, they're just the thinnest layer of sugary icing on a cake of horseshit.

The state secrets privilege was borne of the national security state's deceptions to the country's highest court, but, that was not the origin of the problem. Congress gave up substantial power when it afforded the Executive the sole rights to determine what should be classified, who shall have the power to classify and to determine who should have the necessary clearances to view classified information (which included the members of Congress and the courts).

While those rights were transferred to the Executive in an age when the powers that be thought they could seal away the secrets to the atomic bomb forever (even when knowledgeable physicists knew this was impossible), the state secrets privilege has remained in effect, as a sort of time bomb waiting to be deployed by administrations whenever necessary to prevent disclosure of bad behavior. When the Bush administration embarked on a series of illegal actions, it made liberal use of the privilege, bringing the privilege to public notice again after decades of only occasional invocation.

The fundamental problem with the privilege, as any honest Constitutional scholar will attest, is that it vests an absolute power in one branch of government, the Executive, even though history and experience have shown that such absolute powers are inevitably abused, regardless of motivation. The continued and pervasive efforts of the Bush administration to evade having its arbitrary decisions challenged in the courts is just one more example of the determination of the Executive Branch (under any administration) to retain this unequal power.

Obama promised that his administration would be transparent, and yet, that was just more empty campaign rhetoric, it seems. The DoJ determination recently announced doesn't get to the root of the problem, and doesn't afford the courts any more leeway in adjudicating cases involving national security. Instead, it restricts all determinations of applicability of privilege to the DoJ, which--as recent history has demonstrated more than adequately--is not immune to political influence, nor are the remedies it proposes adequate, since it presumes to refer all cases of wrongdoing to the particular agency's Inspector General, whose office has no authority to prosecute. That makes the Attorney General's guidelines virtually meaningless.

The Constitution was meant to be a set of organizing principles for self-governance, a way for the state to serve its people. Equally, the Bill of Rights was intended to be an inviolate set of rules to afford the individual protection from the overwhelming power of the state. The 7th Amendment preserves the right of the individual to sue "... where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved...," and that amendment offers no qualifications nor limitations; and yet, the conservative representatives of the state have repeatedly tried to limit the individual's right to suit, through tort reform legislation, through the assertion of corporate rights to personhood, and by the assertion of conservative Courts, the Legislature and the Executive that individuals have no standing to sue when the defendant is the government in time of war or when state secrets privilege is invoked, even if the actions of the Executive were both illegal and prima facie violations of due process and existing national and international law.

As so many right-wingers happy to parrot the views of corporations do not understand, the Bill of Rights does not guarantee them the right to poison their neighbors' water or air or food, does not give them the right to threaten or intimidate their neighbors with guns, does not afford them the right to profit illegally from the misery of others, does not give them the right to become vigilantes at will. It gives them basic rights when confronted by the power of the state, and they seem happy to trade those basic rights in exchange for political power, in the mistaken belief that the power of the state will only be applied to their political opponents or those they find inferior to themselves.

Obama is badly mistaken when he endorses fundamental and extra-legal exceptions to the Bill of Rights. A Constitutional lawyer should know better.

If there's one recent incident which delineates the exceptions to the Bill of Rights that the government has expected the citizenry to swallow whole, it's Al Franken's reading of the Fourth Amendment to a representative of the national security state during a recent hearing. Franken's wrong on any number of things, but, he's not wrong on this matter. The Constitution is explicit on the subject of warrants, and the legislation which the Executive Branch forced through Congress (the "Patriot Act") in a time of chaos and calamity and legislative fecklessness, was a gross violation of the Bill of Rights which no court has adequately challenged, in part or in whole.

The United States is not the model of democracy that it bills itself to its citizens and to the rest of the world. It's now mostly a crummy set of insiders looking to use the law for political advantage or monetary gain, and the populace knows it. What else explains the huge number of disaffected citizens who won't vote and refuse to engage in the affairs of the nation?

Obama probably won't attract those already disaffected voters to his reelection, no matter what he does, but, he's guaranteed to lose the idealistic voters (particularly the young) who endorsed him in 2008 if he continues to defend the rights of a corrupted state over those of its ordinary citizens, whether the issue is health care, war, national security, taxes or the time of day.

The Bush administration was the worst example of l'etat, c'est moi that we've ever seen in this country. To continue any Bush policy is dangerous to democracy, and perseverance in the state secrets privilege as used by the Bushies is a prime example of the sort of Executive exceptionalism that has virtually destroyed the Republic and replaced it with a militaristic, corporate national security establishment which will do anything--and I mean anything--to prevent the public from divining its true actions and intentions. Obama promised transparency, and, instead, we get a big spray of bullshit on the lens of the public eye.


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