by Stephen Lendman

America’s Supremes are notoriously hard right. Equal justice under law is just a figure of speech. Rule of law principles and egalitarian fairness don’t matter. Power politics corrupts the High Court. It lacks legitimacy. Five Supreme Court justices are Federalist Society (FS) members. They include Chief Justice

FS began 30 years ago at Harvard, Yale and University of Chicago law schools. Initially it was a student organization. It challenges orthodox liberalism. It corrupts itself in the process.

It advocates rolling back civil liberties. It wants New Deal social policies ended. It supports imperial wars, corporatism, and police state harshness.

It wants reproductive choice, government regulations, labor rights, and environmental protections ended. It spurns justice in defense of privilege. It defiles constitutional protections doing so.

Last September, Congress overwhelmingly passed the 2012 FISA Amendments Reauthorization Act. Obama signed it into law. He called doing so a national security priority. He lied. It reflects police state harshness.

It’s lawless without legitimacy. It extends the 2008 FISA Amendments Act (FAA). It’s for another five years.

It authorizes warrantless spying. It does so without naming names or probable cause. It violates Fourth Amendment protections. It states:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” 

Overseas phone calls, emails, and other communications of US citizens and permanent residents may be monitored without court authorization. Perhaps domestic ones are covertly. Anything goes is policy.

Probable cause isn’t needed. Warrantless electronic eavesdropping is instrusive and lawless. Everyone is vulnerable for any reason or none at all. Vague language allows virtually anything.

Constitutional protections don’t matter. They’re null and void. What Bush began, Obama embraces. Things are worse than ever. Full-blown tyranny remains a hair’s breath away. Obama governs by diktat authority.

The ACLU filed suit. It passed through lower courts to the Supremes. Last October, High Court justices heard oral arguments. Clapper v. Amnesty International challenged the constitutionality of warrantless spying.

On February 26, the Supreme Court ruled. It dismissed ACLU’s case. It violated constitutional protections doing so. It wasn’t the first time inviolable law was spurned.

On February 27, the Electronic Frontier Foundation (EFF) commented. The Court didn’t address FFA’s constitutionality, it said. It ruled against lawyers, journalists, human rights groups, and others challenging protections too important to deny.

It said they couldn’t prove surveillance was “certainly impending.” They didn’t have required standing to sue.

Saying so is deeply troubling. It’s an absurdity on its face. It’s a standard never before used. Imposing it denies the legitimate right to sue. Doing so reflects police state justice.

“In other words,” said EFF, “since (plaintiffs) did not have definitive proof” of what Washington keeps secret, “they cannot challenge” the law’s constitutionality.

Saying so defies reason and rule of law fairness. America’s High Court struck another blow against freedom. Good news remains, said EFF.

Its Jewel v. NSA suit isn’t affected. The spy agency targets millions of ordinary Americans lawlessly. Doing so is policy. Government officials remain unaccountable. Evidence is indisputable.

NSA whistleblowers and former AT&T employee Mark Klein provided it. It proves the telecom giant routes Internet traffic to a secret San Francisco facility. NSA controls it.

EFF challenged responsible government officials. They include George Bush, Dick Cheney, Alberto Gonzales, and others. They ordered and participated in warrantless domestic surveillance. Obama and other administration officials do it now.

In 2009, his administration moved for dismissal. It claimed permitting it would require revealing “state secrets.”

Lower and appeals courts disagreed. The case remains active. Perhaps it’ll reach the High Court. Losing Clapper makes Jewel more important.

It’s “one of the last remaining hopes for a court ruling on the legality of” lawlessly surveilling Americans, said EFF. It’s been ongoing for over a decade.

Ninth US Circuit Court of Appeals judges granted Jewel standing. They said:

“Jewel has much stronger allegations of concrete and particularized injury than did the plaintiffs in Amnesty International. Whereas they anticipated or projected future government conduct, Jewel’s complaint alleges past incidents of actual government interception of her electronic communications.”

Major hurdles remain to be overcome. The Supreme Court ruled future harm must be “certainly impending.” It’s required to sue, they said. It obstructs future lawsuits.

It’s “very troubling,” said EFF. It’s especially so “in the context of cases involving secret surveillance.”

Future conduct can’t be predicted. Ruling so denies all challenges. None can be settled equitably. Anything can be claimed for any reason to deny them.

Justice Breyer dissented on Clapper. He explained certainly impending’s absurdity, saying:

“One can, of course, always imagine some special circumstance that negates a virtual likelihood, no matter how strong.”

“But the same is true about most, if not all, ordinary inferences about future events.”

“Perhaps, despite pouring rain, the streets will remain dry (due to the presence of a special chemical).”

ACLU deputy legal director, Jameel Jaffer, said the High Court ruling denies “meaningful judicial review and leaves Americans’ privacy rights to the mercy of the political branches.”

“More than a decade after 9/11, we still have no judicial ruling on the lawfulness of torture, of extraordinary rendition, of targeted killings or of the warrantless wiretapping program.”

“These programs were all contested in the public sphere, but they have not been contested in the courts.”

Police state justice remains policy.

Secret lawless surveillance alone is troubling. It differs from physical searches. It’s hidden. Targets don’t know they’re spied on or why. Innocent people suffer. Constitutional protections are denied.

Reasons for doing so don’t wash. According to Supreme CourtThink, Washington can deny victims standing.

Constitutionality doesn’t matter. Actions can be kept secret. Challengers can’t sue unless government agrees. Unfettered power is institutionalized. Rule of law principles don’t apply.

FAA permits sweeping surveillance. Categories of people can be targeted. Millions are affected at the same time. No one know’s what’s going on or why.

Police state harshness is policy. Innocence is no justifiable defense. Due process and judicial fairness don’t matter. What Obama officials say goes. They operate extrajudicially. High Court justices approve. Doing so makes them complicit. There’s no place to hide.

Electronic communications can be monitored. Probable cause isn’t needed. Obama officials convinced Ninth Circuit justices to dismiss warrantless wiretapping challenges earlier.

In Al Haramain Islamic Foundation v. Obama (August 2012), they dismissed plaintiff’s challenge. They did so on what’s called “sovereign immunity.”

It prevents government, its agencies and departments from being sued without consent. It stems from earlier practice. It comes from notions that monarchs can do no wrong. It violates fundamental freedoms doing so.

EFF hopes Al Haramain won’t affect Jewel. It raises “many causes of action.” They embrace more than what 50 USC, Section 1810 covers. It’s US law explaining actual and punitive monetary damages.

Jewel wants warrantless surveillance stopped. It wants millions of innocent Americans protected. It wants proper warrants and judicial oversight. It wants rule of law principles upheld.

EFF moved for a lower court Jewel ruling. It wants its case to go forward. It wants Washington held accountable. It wants lawless NSA spying stopped.

It said “FISA preempts the state secret privilege.” District court hearings will begin this fall. Whether High Court ones follow won’t be known for some time. How they rule most often remains deeply troubling.

ABOUT THE AUTHOR

Stephen Lendman lives in Chicago and can be reached atlendmanstephen@sbcglobal.net. 

His new book is titled “Banker Occupation: Waging Financial War on Humanity.”

http://www.claritypress.com/LendmanII.html

Visit his blog site at sjlendman.blogspot.com and listen to cutting-edge discussions with distinguished guests on the Progressive Radio News Hour on the Progressive Radio Network Thursdays at 10AM US Central time and Saturdays and Sundays at noon. All programs are archived for easy listening.

http://www.progressiveradionetwork.com/the-progressive-news-hour

http://www.dailycensored.com/supreme-court-authorizes-lawless-wiretapping/

The Constitution: use it only when convenient  (Photo: Jonathan Thorne, Edited: Lance Page)

By John Cusack, Truthout | Interview
I wrote this a while back after Romney got the nom. In light of the blizzard of bullshit coming at us in the next few months I thought I would put it out now.
Photo on right: Jonathan Turley—>
______________
Now that the Republican primary circus is over, I started to think about what it would mean to vote for Obama…

Since mostly we hear from the daily hypocrisies of Mitt and friends, I thought we should examine “our guy” on a few issues with a bit more scrutiny than we hear from the “progressive left”, which seems to be little or none at all.

Instead of scrutiny, the usual arguments in favor of another Obama presidency are made: We must stop fanatics; it would be better than the fanatics—he’s the last line of defense from the corporate barbarians—and of course the Supreme Court. It all makes a terrible kind of sense and I agree completely with Garry Wills who described the Republican primaries as ” a revolting combination of con men & fanatics— “the current primary race has become a demonstration that the Republican party does not deserve serious consideration for public office.”

True enough.

But yet…
… there are certain Rubicon lines, as constitutional law professor Jonathan Turley calls them, that Obama has crossed.
All political questions are not equal no matter how much you pivot. When people die or lose their physical freedom to feed certain economic sectors or ideologies, it becomes a zero sum game for me.

This is not an exercise in bemoaning regrettable policy choices or cheering favorable ones but to ask fundamentally: Who are we? What are we voting for? And what does it mean?

Three markers — the Nobel Prize acceptance speech, the escalation speech at West Point, and the recent speech by Eric Holder — crossed that Rubicon line for me…

Mr. Obama, the Christian president with the Muslim-sounding name, would heed the admonitions of neither religion’s prophets about making war and do what no empire or leader, including Alexander the Great, could do: he would, he assured us “get the job done in Afghanistan.” And so we have our democratic president receiving the Nobel Peace Prize as he sends 30,000 more troops to a ten-year-old conflict in a country that’s been war-torn for 5,000 years.

Why? We’ll never fully know. Instead, we got a speech that was stone bullshit and an insult to the very idea of peace.

We can’t have it both ways. Hope means endless war? Obama has metaphorically pushed all in with the usual international and institutional killers; and in the case of war and peace, literally.

To sum it up: more war. So thousands die or are maimed; generations of families and veterans are damaged beyond imagination; sons and daughters come home in rubber bags. But he and his satellites get their four more years.

The AfPak War is more H. G. Wells than Orwell, with people blindly letting each other get fed to the barons of Wall Street and the Pentagon, themselves playing the part of the Pashtuns. The paradox is simple: he got elected on his anti-war stance during a perfect storm of the economic meltdown and McCain saying the worst thing at the worst time as we stared into the abyss. Obama beat Clinton on “I’m against the war and she is for it.” It was simple then, when he needed it to be.

Under Obama do we continue to call the thousands of mercenaries in Afghanistan “general contractors” now that Bush is gone? No, we don’t talk about them… not a story anymore.

Do we prosecute felonies like torture or spying on Americans? No, time to “move on”…

Now chaos is the norm and though the chaos is complicated, the answer is still simple. We can’t afford this morally, financially, or physically. Or in a language the financial community can digest: the wars are ideologically and spiritually bankrupt. No need to get a score from the CBO.

Drones bomb Pakistani villages across the border at an unprecedented rate. Is it legal? Does anyone care? “It begs the question,” as Daniel Berrigan asks us, “is this one a “good war” or a “dumb war”? But the question betrays the bias: it is all the same. It’s all madness.”

One is forced to asked the question: Is the President just another Ivy League Asshole shredding civil liberties and due process and sending people to die in some shithole for purely political reasons?

There will be a historical record. “Change we can believe in” is not using the other guys’ mob to clean up your own tracks while continuing to feed at the trough. Human nature is human nature, and when people find out they’re being hustled, they will seek revenge, sooner or later, and it will be ugly and savage.

In a country with desperation growing everywhere, everyday — despite the “Oh, things are getting better” press releases — how could one think otherwise?

Just think about the economic crisis we are in as a country. It could never happen, they said. The American middle class was rock solid. The American dream, home ownership, education, the opportunity to get a good job if you applied yourself… and on and on. Yeah, what happened to that? It’s gone.
The next question must be: “What happened to our civil liberties, to our due process, which are the foundation of any notion of real democracy?” The chickens haven’t come home to roost for the majority but the foundation has been set and the Constitution gutted.

Brian McFadden’s cartoon says it all.

Here’s the transcript of the telephone interview I conducted with Turley.
JONATHAN TURLEY: Hi John.

CUSACK: Hello. Okay, hey I was just thinking about all this stuff and thought maybe we’d see what we can do to bring civil liberties and these issues back into the debate for the next couple of months …

TURLEY: Yeah.

CUSACK: I would just love to know your take as an expert on these things. And then maybe we can speak to whatever you think his motivations would be, and not speak to them in the way that we want to armchair-quarterback like the pundits do about “the game inside the game,” but only do it because it would speak to the arguments that are being used by the left to excuse it. For example, maybe their argument that there are things you can’t know, and it’s a dangerous world out there, or why do you think a constitutional law professor would throw out due process?

Truth be known President Obama has never been particularly driven by principle. Right after his election, I wrote a column in a few days warning people that even though I voted for Obama, he was not what people were describing him to be. I saw him in the Senate. I saw him in Chicago.

CUSACK: Yeah, so did I.

So the argument that Romney is no better or worse does not excuse the obligation of a voter. With President Obama they have a president who went to the CIA soon after he was elected and promised CIA employees that they would not be investigated or prosecuted for torture, even though he admitted that waterboarding was torture.

CUSACK: I remember when we were working with Arianna at The Huffington Post and we thought, well, has anyone asked whether waterboarding is torture? Has anyone asked Eric Holder that? And so Arianna had Sam Seder ask him that at a press conference, and then he had to admit that it was. And then the next question, of course, was, well, if it is a crime, are you going to prosecute the law? But, of course, it wasn’t politically expedient to do so, right? That’s inherent in their non-answer and inaction?

CUSACK: Can you speak to which ones?

TURLEY: Well, President Obama outdid President Bush. He ordered the killing of two US citizens as the primary targets and has then gone forward and put out a policy that allows him to kill any American citizen when he unilaterally determines them to be a terrorist threat. Where President Bush had a citizen killed as collateral damage, President Obama has actually a formal policy allowing him to kill any US citizen.

CUSACK: But yet the speech that Eric Holder gave was greeted generally, by those others than civil libertarians and a few people on the left with some intellectual honesty, with polite applause and a stunning silence and then more cocktail parties and state dinners and dignitaries, back the Republican Hypocrisy Hour on the evening feed — and he basically gave a speech saying that the executive can assassinate US citizens.

TURLEY: That was the truly other-worldly moment of the speech. He went to, Northwestern Law School (my alma mater), and stood there and articulated the most authoritarian policy that a government can have: the right to unilaterally kill its citizens without any court order or review. The response from the audience was applause. Citizens applauding an Attorney General who just described how the President was claiming the right to kill any of them on his sole inherent authority.

CUSACK: Does that order have to come directly from Obama, or can his underlings carry that out on his behalf as part of a generalized understanding? Or does he have to personally say, “You can get that guy and that guy?”

TURLEY: It really is.

CUSACK: You’re at the bottom of the barrel when the Attorney General is saying that not only can you hold people in prison for no charge without due process, but we can kill the citizens that “we” deem terrorists. But “we” won’t do it cause we’re the good guys remember?

TURLEY: Well, the way that this works is you have this unseen panel. Of course, their proceedings are completely secret. The people who are put on the hit list are not informed, obviously.

CUSACK: That’s just not polite, is it?

Obama has asserted the right to kill any citizen that he believes is a terrorist. He is not bound by this panel that only exists as an extension of his claimed inherent absolute authority. He can ignore them. He can circumvent them. In the end, with or without a panel, a president is unilaterally killing a US citizen. This is exactly what the framers of the Constitution told us not to do.

CUSACK: The framers didn’t say, “In special cases, do what you like. When there are things the public cannot know for their own good, when it’s extra-specially a dangerous world… do whatever you want.” The framers of the Constitution always knew there would be extraordinary circumstances, and they were accounted for in the Constitution. The Constitution does not allow for the executive to redefine the Constitution when it will be politically easier for him to get things done.

TURLEY: Well, the framers knew what it was like to have sovereigns kill citizens without due process. They did it all the time back in the 18th century. They wrote a constitution specifically to bar unilateral authority.
James Madison is often quoted for his observation that if all men were angels, no government would be necessary. And what he was saying is that you have to create a system of law that has checks and balances so that even imperfect human beings are restrained from doing much harm. Madison and other framers did not want to rely on the promises of good motivations or good intents from the government. They created a system where no branch had enough authority to govern alone — a system of shared and balanced powers.

TURLEY: Yeah, Pinochet.

CUSACK: Yeah, also our guy…

CUSACK: That also parallels into the idea that the National Defense Authorization Act is using its powers not only to put a chilling effect on whistleblowers, but to also make it illegal for whistleblowers to bring the truth out. Am I right on that, or is that an overstatement?

CUSACK: Yeah.

TURLEY: Certainly part of the problem is how the news media –

CUSACK: Oscar Wilde said most journalists would fall under the category of those who couldn’t tell the difference between a bicycle accident and the end of civilization. But why is it that all the journalists that you see mostly on MSNBC or most of the progressives, or so-called progressives, who believe that under Bush and Cheney and Ashcroft and Alberto Gonzalez these were great and grave constitutional crises, the wars were an ongoing moral fiasco — but now, since we have a friendly face in the White House, someone with kind of pleasing aesthetics and some new policies we like, now all of a sudden these aren’t crimes, there’s no crisis. Because he’s our guy? Go, team, go?

TURLEY: Some in the media have certainly fallen into this cult of personality.

CUSACK: What would you say to those people? I always thought the duty of a citizen, and even more so as a journalist, had greatly to do with the idea that intellectual honesty was much more important than political loyalty. How would you compare Alberto Gonzalez to Eric Holder?

CUSACK: So would you say this assassination issue, or the speech and the clause in the NDAA and this signing statement that was attached, was equivalent to John Yoo’s torture document?

CUSACK: Yeah, I would say it’s the coldest comfort there is.

CUSACK: So, from a civil liberties perspective, ravens are circling the White House, even though there’s a friendly man in it.

TURLEY: Yeah.

CUSACK: I hate to speak too much to motivation, but why do you think MSNBC and other so-called centrist or left outlets won’t bring up any of these things? These issues were broadcast and reported on nightly when John Ashcroft and Alberto Gonzalez and Bush were in office.

TURLEY: Well, you know, part of it, John, I think, is that this administration is very clever. First of all, they clearly made the decision right after the election to tack heavily to the right on national security issues. We know that by the people they put on the National Security Council. They went and got very hardcore folks — people who are quite unpopular with civil libertarians. Not surprisingly we almost immediately started to hear things like the pledge not to prosecute CIA officials and other Bush policies being continued.

CUSACK: Well, yeah, the Bush administration basically said, “We may have committed a crime, but we’re the government, so what the fuck are you going to do about it?” Right? —and the Obama administration is saying, “We’re going to set this all in cement, expand the power of the executive, and pass the buck to the next guy.” Is that it?

CUSACK: They’re falling back on executive privilege, the same as Nixon and Bush.

CUSACK: Well, illegal, right?

TURLEY: Right. Outside the law.

CUSACK: So when does it get to a point where if you abdicate duty, it is in and of itself a crime? Obama is essentially creating a constitutional crisis not by committing crimes but by abdicating his oath that he swore before God — is that not a crime?

CUSACK: Yeah. And what about — well, we haven’t even gotten into the expansion of the privatization movement of the military “contractors” under George Bush or the escalation of drone strikes. I mean, who are they killing? Is it legal? Does anyone care — have we just given up as a country, saying that the Congress can declare war?

TURLEY: Oh, President Obama has created an imperial presidency that would have made Richard Nixon blush. It is unbelievable.

CUSACK: And to say these things, most of the liberal community or the progressive community would say, “Turley and Cusack have lost their minds. What do they want? They want Mitt Romney to come in?”

T

CUSACK: Yeah, because most people reading this will sort of say, “Okay, this is all fine and good, but I’ve got to get to work and I’ve got stuff to do and I don’t know what these fucking guys are talking about. I don’t really care.”
So let’s paint a scenario. My nephew, Miles, decides that he wants to grow dreadlocks, and he also decides he’s falling in love with the religion of Islam. And he changes his name. Instead of his name being Miles, he changes his name to a Muslim-sounding name.
He goes to Washington, and he goes to the wrong organization or meeting, let’s say, and he goes to an Occupy Washington protest. He’s out there next to someone with a speaker, and a car bomb explodes. He didn’t set it off, and he didn’t do anything. The government can throw him in prison and never try him, right?

TURLEY: I mean, first of all, I know Miles, and –

CUSACK: Yes.

TURLEY: –and he is a little dangerous.

CUSACK: Yes.

TURLEY: I played basketball with him and you and I would describe him as a clear and present danger.

CUSACK: I mean, and I know Eric Holder and Obama won’t throw him in prison because they’re nice guys, but let’s say that they’re out of office.

TURLEY: Right, and the problem is that there is no guarantee. It has become almost Fellini-esque. Holder made the announcement a couple of years ago that they would try some defendants in a federal court while reserving military tribunals for others. The speech started out on the high ground, saying, “We have to believe in our federal courts and our Constitution. We’ve tried terrorists before, and therefore we’re transferring these individuals to federal court.”
Then he said, “But we’re going to transfer these other individuals to Guantanamo Bay.” What was missing was any type of principle. You have Obama doing the same thing that George Bush did — sitting there like Caesar and saying, “You get a real trial and you get a fake trial.” He sent Zacarias Moussaoui to a federal court and then he threw Jose Padilla, who happened to be a US citizen, into the Navy brig and held him without trial.
Yet, Obama and Holder publicly assert that they’re somehow making a civil liberties point, and say, “We’re very proud of the fact that we have the courage to hold these people for a real trial, except for those people. Those people are going to get a tribunal.” And what happened after that was remarkable. If you read the press accounts, the press actually credits the administration with doing the right thing. Most of them pushed into the last paragraph the fact that all they did was split the people on the table, and half got a real trial and half got a fake trial.

CUSACK: In the same way, the demonization, whether rightful demonization, of Osama Bin Laden was so intense that people were thrilled that he was assassinated instead of brought to trial and tried. And I thought, if the Nuremberg principles were right, the idea would be that you’d want to take this guy and put him on trial in front of the entire world, and, actually, if you were going to put him to death, you’d put him to death by lethal injection.

TURLEY: The accounts suggest that this was an assassination from the beginning to the end, and that was largely brushed over in the media. There was never really any discussion of whether it was appropriate or even a good idea not to capture this guy and to bring him to justice.
The other thing that was not discussed in most newspapers and programs was the fact that we violated international law. Pakistan insisted that they never approved our going into Pakistan. Think about it — if the government of Mexico sent in Mexican special forces into San Diego and captured a Mexican national, or maybe even an American citizen, and then killed him, could you imagine what the outcry would be?

CUSACK: Or somebody from a Middle Eastern country who had their kids blown up by Mr. Cheney’s and Bush’s wars came in and decided they were going to take out Cheney–not take him back to try him, but actually just come in and assassinate him.

CUSACK: Well, it gets to [the late] Raiders owner Al Davis’ justice, which is basically, “Just win, baby.” And that’s where we are. The Constitution was framed by Al Davis. I never knew that.
And the sad part for me is that all the conversations and these interpretations and these conveniences, if they had followed the Constitution, and if they had been strict in terms of their interpretations, it wouldn’t matter one bit in effectively handling the war on terror or protecting Americans, because there wasn’t anything extra accomplished materially in taking these extra leaps, other than to make it easier for them to play cowboy and not cede national security to the Republicans politically. Bin Laden was basically ineffective. And our overseas intel people were already all over these guys.
It doesn’t really matter. The only thing that’s been hurt here has been us and the Constitution and any moral high ground we used to have. Because Obama and Holder are good guys, it’s okay. But what happens when the not-so-good guys come in, does MSNBC really want to cede and grandfather these powers to Gingrich or Romney or Ryan or Santorum or whomever — and then we’re sitting around looking at each other, like how did this happen? — the same way we look around now and say, “How the hell did the middle of America lose the American dream? How is all of this stuff happening at the same time?” And it gets back to lack of principle.

CUSACK: Well, war crimes… war crimes are effective.

CUSACK: Look, I mean, enforced slave labor has some productive use. You get great productivity, you get great output from that shit. You’re not measuring the principle against the potential outcome; that’s a bad business model. “Just win, baby” — we’re supposed to be above that.

CUSACK: Is that with the death panel?

CUSACK: So, if somebody can use the contra-Nuremberg argument — that principle’s now been flipped, that they were only following orders — does that mean that the person that issued the order through Obama, or the President himself, is responsible and can be brought up on a war crime charge?

TURLEY: Well, under international law, Obama is subject to international law in terms of ordering any defined war crime.

CUSACK: Would he have to give his Nobel Peace Prize back?

CUSACK: Feels more grotesque than ridiculous.

CUSACK: And you’re not just talking about in the Bush administration. You’re talking about –

TURLEY: The Obama administration.

CUSACK: You’re talking about right now.

TURLEY: We have refused to accept the jurisdictional authority of sovereign countries. We now routinely kill in other countries. It is American exceptionalism – the rules apply to other countries.

CUSACK: Well, these drone attacks in Pakistan, are they legal? Does anyone care? Who are we killing? Do they deserve due process?

TURLEY: When we cross the border, Americans disregard the fact that Pakistan is a sovereign nation, let alone an ally, and they insist that they have not agreed to these operations. They have accused us of repeatedly killing people in their country by violating their sovereign airspace. And we just disregard it. Again, its American exceptionalism, that we –

CUSACK: Get out of our way or we’ll pulverize you.

TURLEY: The rules apply to everyone else. So the treaties against torture and war crimes, sovereign integrity –

CUSACK: And this also speaks to the question that nobody even bothers to ask: what exactly are we doing in Afghanistan now? Why are we there?

CUSACK: Yeah. And, I mean, we haven’t even touched on the whole privatization of the military and what that means. What does it mean for the state to be funding at-cost-plus private mercenary armies and private mercenary security forces like Blackwater, or now their names are Xe, or whatever they’ve been rebranded as?

CUSACK: Or if the great O, decides that he wants to be lenient and just throw them in jail for the rest of their life without trial, he can do that, right?

CUSACK: Yeah. We’re getting into kind of Kafka territory. You know, with Bush I always felt like you were at one of those rides in an amusement park where the floor kept dropping and you kept kind of falling. But I think what Obama’s done is we’ve really hit the bottom as far as civil liberties go.

TURLEY: Yet people have greeted this erosion of civil liberties with this collective yawn.

CUSACK: Yeah, yeah. And so then it gets down to the question, “Well, are you going to vote for Obama?” And I say, “Well, I don’t really know. I couldn’t really vote for Hillary Clinton because of her Iraq War vote.” Because I felt like that was a line, a Rubicon line –

TURLEY: Right.

CUSACK: — a Rubicon line that I couldn’t cross, right? I don’t know how to bring myself to vote for a constitutional law professor, or even a constitutional realist, who throws away due process and claims the authority that the executive branch can assassinate American citizens. I just don’t know if I can bring myself to do it.
If you want to make a protest vote against Romney, go ahead, but I would think we’d be better putting our energies into local and state politics — occupy Wall Street and organizations and movements outside the system, not national politics, not personalities. Not stadium rock politics. Not brands. That’s the only thing I can think of. What would you say?

CUSACK: I think that even Howard Zinn/Chomsky progressives, would admit that there will be a difference in domestic policy between Obama and a Romney presidency.
But DUE PROCESS….I think about how we own it. We own it. Everybody’s sort of let it slip. There’s no immediacy in the day-to-day on and it’s just one of those things that unless they… when they start pulling kids off the street, like they did in Argentina a few years ago and other places, all of a sudden, it’s like, “How the hell did that happen?” I say, “Look, you’re not helping Obama by enabling him. If you want to help him, hold his feet to the fire.”

TURLEY: Exactly.

CUSACK: The problem is, as I see it, is that regardless of goodwill and intent and people being tired of the status quo and everything else, the information outlets and the powers that be reconstruct or construct the government narrative only as an election game of ‘us versus them,’ Obama versus Romney, and if you do anything that will compromise that equation, you are picking one side versus the other. Because don’t you realize that’s going to hurt Obama? Don’t you know that’s going to help Obama? Don’t you know… and they’re not thinking through their own sort of self-interest or the community’s interest in just changing the way that this whole thing works to the benefit of the majority. We used to have some lines we wouldn’t cross–some people who said this is not what this country does …we don’t do this shit, you had to do the right thing. So it’s going to be a tough process getting our rights back, but you know Frankie’s Law? Whoever stops fighting first – loses.

TURLEY: Right.

____________________

This piece was reprinted by Truthout with permission or license.

JOHN CUSACK
John Cusack makes films.

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Justice Roberts: Guarding his place in history or merely deflecting growing criticism of the SCOTUS?

By David Michael Green

Last week America engaged in one of its perennial paroxysms of constitutional cogitation – this time over the Obama health care bill – with (mostly) predictable results.

Four of the great legal priests on our High Temple’s Council of Scriptural Interpretation said that, yes, the Affordable Care Act was within the boundaries of what a small collection of men riding horseback to a meeting in Philadelphia one summer two-and-a-quarter centuries ago allow us to do today as a continent-wide superpower society of 300 million people in the age of atom bombs, space travel, heart transplants and genetic engineering. George and John and Thomas say it’s okay, we can have health care. Whew. That’s a relief.

But then four other priests insisted, “Oh, no, this is fundamentally not allowed. Not at all.”

And one apparently went both ways, voting against it before he was for it.

Such, in “the greatest country in the world” – as regressives, doing their national equivalent of Allahu Akbar, seek to assuage their insecurities and reassure themselves by constantly shouting at the rest of us – is the way we determine whether tens of millions of children will or will not receive pediatric care. This – by pondering what would John Hancock do? – is how we figure out whether one-sixth of our population deserves to have their lives lengthened by early cancer detection and intervention, or must instead resort to ‘treatment’ of their already metastasized masses in hospital emergency rooms.

The very fact of this debate and the questions on which it turns tells you far more than you’d care to know about just how great your greatest country is, the one which spends vastly more on health care than any other, but delivers the least to its citizens. But that is the subject of an essay (or six) for another day.

Today’s rant is on the destructive dogmas and horrid habits of our national addiction to the practice of constitutionalism itself.

By that, I don’t mean the fact that law in America is ultimately decided by five unelected, politically insulated and almost entirely unremovable individuals, meeting in secret and doing who knows what underneath their black robes. I have addressed the wisdom of that profoundly undemocratic process, known as judicial review, previously.

Though that’s not our concern here, the absurdity of the process as demonstrated so emphatically once again last week nevertheless cannot go without being briefly noted. How anyone can argue with a straight face that judicial review of legislation in America – especially in our hyper-polarized era, where presidential elections are as much about loading up the courts as they are about executive branch policies – is not entirely political, but purely about ‘finding’ the constitutionality of issues, is quite beyond me. I guess it’s just a massive coincidence that the votes of Supreme Court are almost always entirely predictable based on ideology, eh? I guess it’s also just a quirk of legal quantum mechanics that conservative justices always find their way to the conservative ruling, no matter what principles they need to invoke to get there. If, for example, the question is whether the federal government has the power under the commerce clause to smash state law on medical marijuana, Scary Scalia explicitly says, “Hell, yes, the feds can do just about anything they want!” Anything except, as it turns out, providing people with health care. Then, it’s abundantly clear to the very same good judge, that the national government has no such power according to the very same provision of the Constitution.

Anyone who would still today deny that the Supreme Court is little short of a profoundly non-democratic mini-legislature is simply lying to you, and probably lying to themselves as well. The very ideological predictability of the justices’ votes, and the way they obliterate any principle in their way makes that emphatically clear, as does the swaggering aggressive activism of the regressive majority of the Court in cases like Bush v. Gore or Citizens United. As, for that matter, does the rage this week in the regressive community focused on John Roberts for his defection from Tory orthodoxy. Does anyone seriously think that these people have a problem with his ‘legal reasoning’, as opposed to his ultimate vote? Let’s not be ridiculous. They’re angry because a guy on the conservative team defected to the enemy, and legal principles have nothing whatsoever to do with it. It’s like the friends and family of a Red Sox fan who suddenly starts rooting for the Yankees.

By the way, the vote itself also demonstrates the pure politicization of the judicial process. By the available evidence, the good tool Roberts appears to have been all set to have voted his ideology in this case, just as he has in the past, and just as we’d expect him to have done on this issue. But then something happened, and he switched votes. I can tell you what that something was, and why it effected John Roberts and not, say, Anthony Kennedy, who is normally considered the ideological swing vote (though never, it should be noted, when there is real money on the table). What happened was that the rising crescendo of criticism of the Court for its ideological bias, its massive overreach, and the horrific decisions it has been rendering, such as those creating the Bush presidency and the monstrosity of corporate-owned government, got to him. If there was a single development that switched Roberts’ vote, it was the New York Times front page article published in recent weeks detailing poll data which demonstrate that America’s admiration for the Court is way down, at historic lows. This is why it was Roberts who switched, and not one of the associate justices. His name will forever be attached to this court, and he didn’t want history to record that it was the Roberts Court that ruined the historically well-regarded institution. He didn’t want ‘Roberts Court’ to show up on the same list as Dred Scott and Plessy v. Ferguson. By taking a hit on this big issue once, he can now go back to stuffing plutocracy down our throats, as he assuredly will, but henceforth with an historic alibi in his pocket. In other words for the next thirty years we’ll be hearing: “Hey, you can’t say my vote is always just a shill for the corporatist oligarchy – look how I voted on Obamacare!”

But I digress (and digress some more).

Our current system of jurisprudence – which is often really our current system of legislation – is wrong on all sorts of levels. It was, to begin with, a bad idea for these justices to be deciding health care policy in America. And it was an even worse idea for them to be doing so on the basis of attempting (or pretending to be attempting) to decipher the Founders’ thoughts about the provision of health care to the public, more than a century before governments anywhere ever contemplated providing such services, and two centuries before it became the norm in developed countries.

But what’s really wrong, at the foundation of this pyramid of bad practices, is the whole notion of constitutionalism itself. Somehow we’ve gotten it into our heads that we as a twenty-first century contemporary society are only permitted to do what the Constitution of the late eighteenth century permits us to do. I, for one, don’t see the wisdom in that at all, and I say that for a number of good reasons.

To begin with, it is a fool’s errand to believe that we can ascertain the intentions of the Founders on a huge raft of contemporary issues which – like radar itself, would have been completely off their screens in the pre-industrial, let alone pre-post-industrial, agrarian society in which they lived. Even the Founders themselves – the very people who wrote the document in question – began debating about what the Constitution permits immediately after ratification, notably the 1790 row between Hamilton and Madison over whether a federal bank was permitted.

That particular debate – between two key authors of the Constitution a mere one year after it was ratified – suggests a second problem with the notion of constitutionalism as the foundational mechanism for policy-making. Namely, that the document is written in vague enough language in many places so as to permit multiple interpretations on given questions, each sometimes equally valid. Not for nothing, for example, is one of the key provisions of the document referred to as the “elastic clause”.

So already, any rationale for making decisions on everything from health care to pornography to torture to racial equality in this fashion is on the shakiest of grounds on the basis of these two critiques alone. But there are other reasons for rejecting this approach as well.

Americans love and revere their constitution, but my guess is very few of them could begin to tell you why, and among that handful, even fewer still could defend the laudable characteristics they might be able to identify in any sort of comparative contest against alternative possibilities. It’s quite a lot like religion. If you feed a society “Allah, Allah, Allah” non-stop, 99 percent of its members are gonna turn out to be good Muslims (some of them quite fervent) without thinking about it one way or the other (and the other one percent will, I assure you, be very quiet about their doubts). You can even go “Jesus, Santa, Jesus, Santa” if you want, and then come along ten years later and say “Just kidding about the Santa part – but the Jesus thing is totally real!”, and that’s exactly the set of beliefs you’ll get, almost no one ever looking askance.

And that’s pretty much how we do our knee-jerk constitutional adoration in this country, as well.

But, truth be told, it’s actually not such a very good document, if we’re honest about it. I know you’re not supposed to say that, but then again if we occasionally told the truth in America we wouldn’t be in the mess we’re in right now either. So I will.

The first thing to notice about the Constitution, looked at dispassionately, is what is not in it. It is, in terms of actual content, very little of a moral statement at all. It does include some guaranteed freedoms as something of an afterthought in the Bill of Rights, but it does not otherwise have any substantive content, especially on any serious ethical or philosophical issues. Moreover, on the great moral question of democratic inclusion, the prescriptions of the Constitution are highly wanting (though some – but not all – of this may be fairly excused by the ethos of the historical moment). There is no room for women here, nor for less-than-wealthy men, nor for non-whites. I don’t know about you, but if you want me to be impressed with any given manifesto or political statement, it needs to stand for something at least a bit novel and profound.

So what is in the document, then, if not some secular equivalent of the Ten Commandments? It is essentially a blueprint for a governing structure, and little else of note. The Constitution says who decides in American society, how they come to occupy those positions, and how these positions relate to each other in terms of their powers. That’s just about it, really.

Now, if that happened to represent some brilliant form of governing structure, far superior to all the others, then I might be persuaded that our national reverence for this centuries old document was well founded. In point of fact, however, I would argue rather the opposite is true here. Though I think the Constitution represents a fairly clever bit of engineering on the part of the Founders, given the goals and parameters of their moment, those aren’t goals I particularly share, nor can they be fairly argued to be very much helpful to national governance in our time.

For the key thrust of the regime created by the Founders in the Constitution is the dilution of power. Their task was to come up with a government of stronger power than the failing Articles of Confederation, but they were adamant that it not be too strong, so they found three ways to spread power out. First, vertically, by sharing power between the states and the federal government. Second, horizontally, within the federal government, by means of separation of powers across independent branches of policy-making and implementing institutions, otherwise known as the idea of ‘checks and balances’. And, third, by expressly limiting the powers that the federal government possessed over the public and over the states, as itemized in the Bill of Rights.

It was a fairly clever bit of engineering considering the needle the Founders had to thread between strength and weakness at their specific historical moment, but is it a particularly efficient or otherwise felicitous form of government for our purposes today? I dunno – can you say ‘gridlock’, dude? Do Americans seem remotely enamored with their government today?

This is a governing structure that is designed to mostly be incapable of doing anything, other than when very, very broad consensus exists across all the governing institutions. The diffusion of power also means that assigning responsibility is rather difficult as well. If you’re unhappy with your government today, who do you blame? Democrats? Republicans? The President? Congress? The Courts? And if you have a hard time affixing blame, how can you choose a different alternative as a remedy?

I would argue that this is a form of government – one in which so many veto points guarantee relative inaction – only well suited to a people who are paranoid about the supposed perils of governmental powers. It’s true that probably no other culture on the planet fits that description as well as American society, but that said, it seems to me that there comes a point at which the dysfunctionality of weak government outweighs any benefits. Besides which, the small government limitations in place today seem only to apply to making it difficult for our government to provide benefits for its citizens, like health care. When it comes to the really ugly stuff (and the stuff that the Founders were concerned about) – like unrestrained warfare, warrantless spying on citizens, endless incarceration without due process, and now even assassination of citizens on the president’s unilateral whim – there’s no small government to be found anywhere in sight, anyhow. And, by the way, do the other democracies of the world – those not possessing the power-diffusing principles of governance America has – suffer from totalitarian regimes controlling their subjects’ lives in some sort of nightmare right out of Orwell? Is that what you see in Sweden? Canada? New Zealand?

Which reminds us that there is a better way, actually. In a parliamentary, unitary (non-federalist) democracy, power resides in parliament. Period. Which also means that responsibility resides there as well. There are no checks and balances, no competing institutions, no great secular scripture on high to consult, and no gridlock. If you don’t like the way things are going in your country, you know who to blame, and what to do about it at the next election.

And this reminds us further, then, that American ultra-reverence for the US Constitution is even more misplaced. The main thing – indeed, just about the only thing – that the document does is to spell out the governing structure for the society. I’d say that’s undeserving of reverence enough but if, in doing so, it prescribes a fairly dysfunctional one, why must we always genuflect in its direction every time we need to make a decision more than two centuries later? If it doesn’t even do the one thing it was designed to do so very well, why in the world should it be controlling our lives?

There are two great ironies here. One is that I suspect that we take the Founders a whole helluva lot more seriously than they took themselves. They referred to their regime-creating enterprise as an “experiment”, and they meant that rather literally. Not only did they not think their Constitution walked on water, they didn’t really have much of a clue as to whether it could work. And there were good reasons to adopt such a healthy skepticism. First because they had gotten it wrong very recently, and not once, but twice. They had tried monarchy and abandoned it as a failure. They then substituted the Articles of Confederation, a governing design so flawed it barely lasted a decade. Moreover, if you look at what actually transpired at the constitutional convention, you see all sorts of ideas and debates and compromises flying around amongst the delegates. The point is, it’s not like these people were hand-delivered an instruction manual for good governance by the Supreme Being. They knew that they weren’t, so how come we don’t?

The other great irony here is that our twenty-first century slavish reverence for the diktats of the Constitution (or what some of us claim to be able to decipher as its diktats) does a massive disservice to the one great thing that the Founders actually did contribute in penning the document.

In truth, it’s not the contents of the Constitution that are to be greatly admired, for all the reasons noted above. This was a significantly flawed document in 1787, and is even more so today. What really matters is not what they did so much as that they did it. The really amazing thing about the Founders and the Enlightenment movement of which they were leading lights, was the transition they provided to the concept of self-rule, and to the notion of governance based on the principle of reason, or rational analysis based on empirical observation. This idea was almost wholly foreign to their time, and their broader ethos that humans could be trusted to think for themselves and govern themselves was truly a gigantic leap out of the dark ages and into modernity. Indeed, Enlightenment ideas arguably represent the most significant development in all of human history.

For this, I truly admire the confidence, courage and ingenuity of Founders’ generation, and I’m truly grateful for their contribution.

In light of this, then, how much more absurd and sad is it that we – centuries further down the road – dishonor their contribution by continually trying to make policy on the basis of interpreting some über-text written by some quasi-deities from a wholly different culture and time, instead of following their prime directive and thinking for ourselves?

I’m pretty confident that the Founders would agree that in slavishly seeking to decipher their ancient words and letting those govern us today, we have in fact missed the very core essence of what they were trying to say.

Justice Antonin Scalia, one of the most destructive forces in American history, not long ago had a message for liberals and other patriots still smarting from the judicial coup he engineered which put another of the most destructive forces in our history into the White House for eight years: “Get over it” said the nice judge.

I’d like to return the favor with respect to his brand of regressivism masked as constitutional originalism: It’s just parchment, people. Get over it.

David M Green teaches pol sci at Hofstra University (NY).

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By Joseph Kishore, WSWS.ORG
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John Roberts on the front plaza of the Supreme Court in 2010. (Larry Downing/Reuters)

For anyone seeking to follow American politics, there is a certain professional obligation to read the New York Times, the “newspaper of record.” This obligation has less to do with the information that can be gleaned from its pages than the insight its commentaries and articles provide into the thinking of the Democratic Party milieu for which the Times speaks.

The Times specializes in serving up the lying hypocrisy of the liberal bourgeois establishment, which is then echoed by the various “left” defenders of the Democratic Party. As such, one of the newspaper’s primary tasks is to lend a progressive veneer to the right-wing policies of the Obama administration.

The response of the Times to Thursday’s Supreme Court ruling on Obama’s health care program is a typical, although particularly disgusting and absurd, example of its propaganda in support of the administration. A few articles are worth singling out.

In “Roberts Shows Deft Hand as Swing Vote on Health Care,” which appeared under the category of “news analysis,” the newspaper’s Supreme Court correspondent Adam Liptak heaps praise on Chief Justice John Roberts, who wrote the deciding opinion of the Court on the most significant element of Obama’s bill, the individual mandate to purchase insurance from private corporations.

Referring to the statement of Justice Oliver Wendell Holmes Jr. that determining the constitutionality of a law is “the gravest and most delicate duty” of the Supreme Court, Liptak declares: “In finding a way to uphold President Obama’s health care overhaul law on Thursday, Chief Justice Roberts performed the task with exquisite delicacy.”

Liptak repeated a few paragraphs down that “the chief justice’s defining and delicate role in upholding the health care law will always be associated with his tenure.”

What is the content of Roberts’ “exquisitely delicate” ruling? It is in fact a politically motivated piece of hack work, a classic example of deciding the desired outcome first and constructing a tortured legal argument to support it. In this case, Roberts sought to uphold the health care reform law, which the predominant faction of the ruling class wants to maintain, while at the same time advancing right-wing interpretations of the Constitution that can be used to undermine existing corporate regulations.

This accounts for the “verbal wizardry,” in the words of Justice Antonin Scalia’s dissent, of Roberts’ ruling. Roberts sided with Scalia and the other extreme right-wing justices in declaring that the individual mandate—which penalizes individuals for not purchasing private insurance—was not valid under the Commerce Clause of the Constitution. There has been a longstanding right-wing campaign against the Commerce Clause, which has been used as the constitutional basis for much of the New Deal and post-war corporate regulations and social reform measures. Roberts’ ruling introduces a number of specious arguments to call into question its broader legal interpretation.

While establishing this thoroughly right-wing precedent, Roberts was nevertheless determined to uphold the law itself. The “reform” is part of a coordinated effort to cut health care costs for the government and corporations and shift these costs onto the backs of individuals.

Thus we have the conclusion that the law is constitutional on the basis of the government’s ability to tax. Roberts practically pulled this argument out of thin air, as the Obama administration has insisted, and indeed continues to insist after the ruling, that the penalty for not buying health insurance is not a tax.

In fact, to argue that the penalty is a tax, Roberts had to contradict his own ruling. In order to justify hearing the case, Roberts had to rule that the penalty is not a tax, since according to the Anti-Injunction Act, an individual cannot bring suit against a tax until after it has been paid—and the health care mandate does not go into effect until 2014. So the mandate is a tax and is not a tax in the same ruling.

If Roberts is exquisitely delicate, Obama is “historic,” also according to the Times. The passage and upholding of Obama’s health care reform leaves intact Obama’s “hopes of joining the ranks of Franklin D. Roosevelt, Lyndon B. Johnson and Ronald Reagan as presidents who fundamentally altered the course of the country,” writes Mark Landler under the headline, “A Vindication, With a Legacy Still Unwritten.”

The Supreme Court decision preserves “Mr. Obama’s status as the president who did more to expand the nation’s safety net than any since Johnson. It preserves a bill intended to push back against rapidly rising income inequality.”

A number of historians are brought in to argue this case, including Douglas G. Brinkley, who asserts that the health care overhaul is “the cornerstone of what could turn out to be one of the most extraordinary two-term presidencies in American history.”

Obama’s presidency has been about establishing “a view of government as a force for good, a great leveler and a protector of the middle class,” Landler continues. As for the challenge to the health care law, this is likened to the court challenges to Roosevelt’s New Deal in the early 1930s. “The lesson for this president, said David M. Kennedy, a historian at Stanford, is to forge a coalition robust enough to change the political landscape. Roosevelt was elected to a second term in a landslide in 1936, cementing the New Deal.”

Reality and history are stood on their heads. Obama’s health care law has nothing in common with the social reforms of the 1930s (including Social Security and major public works programs), or the Great Society reforms of the 1960s (including Medicare and Medicaid). In fact, it is part of a campaign to undermine and eliminate these social programs.

Led by Obama, the ruling class has responded to the economic crisis by slashing hundreds of billions from health care programs at the state and federal level—including a $500 billion cut in Medicare included in the health care law. To the extent that federal health care programs exist, they will provide the most minimal care. To this end, the Democratic administration, in close cooperation with the Times, has launched a campaign against “unnecessary” tests and procedures. This campaign will escalate now that the law has been upheld.

At the same time, corporations are cutting or eliminating their own health care programs, as part of a general attack on wages and benefits. Again, this has been encouraged by the Obama administration—including through the forced bankruptcy of the auto companies. The health care bill includes a special tax on health care plans that provide better coverage (disparaged as “Cadillac” plans), explicitly intended to encourage companies to eliminate them.

The American people—or at least all those who can’t afford to pay for the best coverage—will be left to the mercy of private insurance companies. The entire content of the health care “reform” bill is to encourage this process. It is not a significant reform, but part of a giant step backwards in health care. Again, it is telling that in the same decision, Chief Justice Roberts both upholds Obama’s law and calls into question the constitutional basis of much of the New Deal—the expansive reading of the Commerce Clause.

The Times—and the wealthy liberal milieu for which it speaks—is entirely in favor of this attack on the working class. This, combined with their increasingly desperate efforts to maintain the political authority of the Democratic Party, accounts for the nauseating mendacity of its coverage.

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