The Executive justifies its actions, like all authoritarian institutions, on the grounds that it is protecting us. We must reverse the tide.
“America no longer has a functioning democracy. This invasion of privacy has been excessive, so bringing it to public notice has probably been beneficial —President Jimmy Carter
Millions of Americans will face a basic question in the coming decade: how much loyalty do we owe a U.S. Executive Branch which extracts huge sums from us to spy upon and lie to us, on the false grounds that doing so is protecting us? Or do we owe our moral allegiance to the ideal of democracy, which requires us to fight the Executive which is its enemy?
Senate Intelligence Committee member Ron Wyden recently issued an urgent call to “rein in this omnipresent, ever-expanding surveillance state”, warning that “if we don’t do it now our generation’s going to regret it forever”. Wyden and his colleague Mark Udall – who have revealed that even as Senators they have been consistently denied information, lied to, treated like children unable even to take notes, and are even now muzzled from revealing far more massive Executive subversions of democracy than is known – have become the canaries in the coalmine. They warn us that though still largely odorless, colorless and invisible to most of us, poisonous Executive power is slowly destroying what remains of a “functioning democracy” in this country.
The meaning of an ex-U.S. President’s astonishing statement is clear. For the Executive’s threat is not only to “privacy” or “civil liberties” but the very structure of democracy itself. As Wyden and Udall have demonstrated, the Executive Branch has unilaterally seized power since 9/11, behind a curtain of secrecy, in a way that has destroyed our constitutional system of legislative and judicial “checks and balances” on its power.
This threat has been ignored by many because it so counters our childhood beliefs that our government fights for democracy against foreign enemies. But the evidence clearly indicates that it is the U.S. Executive Branch, not foreigners, which is today U.S. democracy’s main enemy. And it also clear that saving our liberties will require a new pro-democracy mass movement as unprecedented as the Executive’s post-9/11 power grab.
It is our own Executive Branch, after all, not a foreign enemy which has unilaterally and illegally stored our phone calls and emails without even informing us let alone obtaining the constitutionally-required “consent of the governed” to do so; constantly broken the law by violating the Patriot Act, as its Republican author has attested, and lying to the Legislative and Judicial branches; illegally accessed our private data on tens of thousands of known occasions while falsely claiming they have not – with even these abuses only “the tip of the iceberg”; attacked freedom of the press by spying on organizations like the Associated Press, intimidating journalists, and trying to jail them if they do not reveal their sources; seized emails from private companies and threatened to jail their CEOs if they revealed it; pushed through a law giving them the right to assassinate or jail any of us for life without a trial or other opportunity to prove our innocence; classified trillions of documents annually, less than 5% of which are of any conceivable use to a foreign enemy, so as to hide evidence of their massive waste, fraud, abuse and crimes; prosecuted unprecedented numbers of whistleblowers who reveal their secret crimes and abuses; lied continuously to the American people whenever their mistakes and crimes have been revealed; required millions of their own employees to inform on each other, and even threatened to fire them for simply declining to spy on their colleagues; funded SWAT teams already abusing their power, and provided paramilitary training and equipment to police forces around the country; begun using drones domestically; and demanded that the Judiciary make decisions based only on Executive assertions, as it withhold any evidence for them on the grounds of “national security.”
As millions of us come to realize the truth of Wyden’s warning over the next decade, we will be forced to ask the most basic of questions: is this the America we grew up believing in, or want to live in now? And, if not, are we willing to fight for democracy before, as Wyden warns, it is too late? It may sound over-dramatic to the comfortable, complacent, or fearful, but he is correct. Our generation must respond to his call to arms for democracy or it will disappear.
This nation has of course faced threats to democracy in the past, in the last century from the Palmer raids and jailing of Eugene V. Debs for speaking out against World War One,McCarthyism, FBI criminality in the 1960s and beyond, the CIA abuses catalogued by Senator Frank Church in the mid-1970s, and Iran-Contra in the 1980s. And, as President Eisenhower warned us, the “military-industrial” complex has been slowly choking off democracy since the end of World War II.
But the Executive’s current assault on democracy is unprecedented. As a result of previous unimaginable technologies of surveillance and control, and the fear generated by the attacks on 9/11, the U.S. Executive has constructed on American soil a massive apparatus of surveillance and potential population control never before seen in our history.
This apparatus includes the mammoth Department of Homeland Security and intelligence-gathering and police entities located in 17,000 buildings (1) around the nation; giant data storage and collection centers driven by ever more powerful and intrusive software storing all Americans’ phone and Internet data; 72 police/military intelligence “fusion centers“, which have already begun to target domestic dissidents; and increasingly paramilitary-oriented police-departments, often with secret police units. While most of this apparatus is presently directed at potential threats from abroad, it is already devoting an unprecedented amount of time and money surveilling Americans at home. And it can be increasingly turned against the American people, media, Congress and the Judiciary in the likely event of increasing social disruption, and/or new domestic 9/11s, in the coming decade.
And this visible threat to democracy is only part of the problem, as the Executive Branch behaves more like an Occupying Power ruling from above than a democratic institution controlled from below. In the past, it waged its wars abroad and an American middle class still prospered at home. But today its priorities are also accelerating America’s economic and social decline, as its wasted $4-6 trillion long-term on two losing wars in the past decade alone and consumes over $1 trillion annually, as the middle class slowly disappears.
As America’s economic health, society, infrastructure,schools and social mobility continue to decline, the rich grow richer and the poor poorer, automation and the continued export of jobs leads to rising mass underemployment, our youth are increasingly indentured by massive student debt, millions of workers can barely survive even when working two or three jobs, and assaults on the safety net grow, it is inevitable that growing numbers of Americans will protest their conditions. And, unless we rein in the Executive, it will inevitably respond to increased protest with increased police tactics threatening democracy itself.
Self-Censorship: The Worst Abuse
And putting aside the flagrant abuses that we now know about, the creation of an Executive Branch Surveillance State already threatens to cast a subtler and ultimately more disturbing pall over the land.
Conservative columnist Peggy Noonan has properly written that ” a loss of the expectation of privacy in communications is a loss of something personal and intimate, and it will have broader implications”, and then approvingly quoted the liberal “Nat Hentoff, the great journalist and civil libertarian,” as saying that “Americans will become careful about what they say that can be misunderstood or misinterpreted, and then too careful about what they say that can be understood. The inevitable end of surveillance is self-censorship.”
The little jokes so many now make along the lines of “this email is just between you, me and the NSA” suggest that many Americans are already nervous about expressing views, or writing words, that might trigger government scrutiny. And self-censorship is far more pernicious than heavy-handed government censorship. And, worse, there comes a point when we don’t even realize we are censoring ourselves anymore, when “dangerous thoughts” are not even brought to consciousness.
Millions of our young people, forced to seek scarce government or corporate jobs to pay off massive student loans, are increasingly fearful of political associations or activities that they fear might hurt their future employment prospects. Many are careful about what they say or write to each other on the phone of in emails and, unconsciously, even what they think.
And, as McClatchy has reported, millions more federal employees are now required to spy and inform on each other at the risk of losing their jobs. They are not even allowed to remain silent, since employees can be fired if it is subsequently found that they could have reported a co-worker but did not. An estimated 1.4 million public and private sector employees have obtained their “top secret” security clearances by submitting to intrusive and thorough “background checks”. They have done so because such a clearance is, in Dana Priest and Bill Arkin’s words, “a passport to prosperity for life”, offering secure, high-paying jobs. They tend to live close to one another, in some of the wealthiest communities in America. (2)
The result is an increasing tendency toward “group think” and conformity, as such individuals lose even the capacity for independent thought outside politically prescribed limits. And those charged with protecting our privacy can hardly be trusted to do so when they have already given up their own.
From “Civil Rights” to a New “Democratic Rights” Movement
The Executive’s unprecedented threat to democracy requires an unprecedented response. The great mass movements of the postwar era have involved issues of social, economic, gender, sexual and racial justice, war and peace, and the environment. “Civil liberties” have largely been left to organizations like the ACLU.
But now a new “Democratic Rights” movement, with at least as much public support as the “Civil Rights” movement of the 1960s, will be required for democracy to exist. And if democracy goes, so too will social justice, the environment and peace. A “Democratic Rights” movement is a necessary precondition for everything else.
A New Politics, A New Hope
Until recently it was difficult to even imagine how Executive power could be limited, as a cowed Congress massively funded it after 9/11 while democracy burned. But on July 24, like a bolt of lightning suddenly illuminating a dark graveyard, a surprising Congressional vote provided the first hope for asserting democratic control over Executive power.
A unique coalition of 111 Democrats and 94 conservatives came within only 7 switched votes of passing a bill to halt the Executive Branch’s unconstitutional collection of all Americans’ phone and Internet records.
The vote’s importance was not only that it was the first major challenge to the Executive’s post-9/11 power grab. It also significant showed there was a difference between Congress and the Executive. Overall, Members of Congress are controlled by the economic interests upon whose money they depend for reelection, and they have done nothing to halt climate change, growing inequality, and Executive drone and ground assassination abroad, etc. But this vote suggested that there is daylight between Congress and the Executive on the issue of surveillance and, hopefully, other issues fundamental to democracy. The hope that Congress will create a functioning democracy in America may prove to be naïve. But, if a grassroots movement can arise to support this cause, it will be Americans’ only hope of rolling back authoritarian Executive Branch power.
The greatest significance of the Conyers-Amash vote was that embodied a new politics entirely different from the traditional liberal vs. conservative divisions that have brought a moribund Congress to a halt.
This new politics pits both liberal and conservative opponents of government surveillance against an unholy and unprincipled alliance for authoritarianism that includes Barack Obama, Paul Ryan, Nancy Pelosi, Eric Cantor, and John Boehner. After years of gridlock, the House experienced a sudden push-back against Executive power unlike any we have seen in our lifetimes.
This new Congressional coalition gives new meaning to the saying that politics makes strange bedfellows. Republican votes for Conyers-Amash included both principled opponents of surveillance, and those who support surveillance but want it done entirely by the private sector. And Democratic supporters for the amendment included both principled progressives who have long fought for civil liberties and peace, and more centrist types who have rubber-stamped past Executive war-making without a peep.
It is uncertain whether this unwieldy coalition can hold in coming months given these differences, the gravitational pull of the old politics, and the enormous Executive power and deception they will face. We can safely assume that military-intelligence-police firms and the Pentagon itself are already mercilessly pressuring pro Conyers-Amash Members back in their districts and in D.C. Mr. Obama and Ms. Pelosi are also strongly lobbying for mass surveillance to continue, covering up their betrayal of democracy with meaningless promises of greater transparency. And even if restrictions on NSA spying on innocent Americans pass the House, they would face an uncertain future in the Senate.
But two things are certain: only if the proto-coalition that favored the amendment can hold and expand in coming years will there be any hope of creating a “functioning democracy” in our nation. And second, for this to happen there will need to be a new grassroots movement of similarly strange bedfellows committed to fighting for democracy.
The Amash-Conyers vote also provided dramatic evidence of how the U.S. Executive does not represent the American people. The Executive was only able to spy on Americans because it deceived them by denying it was doing so. When Americans found out about the spying, however, an Economist poll showed Americans opposed NSA surveillance by a 59-35 margin. Americans clearly would not have agreed, had the Executive Branch honestly sought “the consent of the governed,” to allow it collect all their phone and Internet records. By unilaterally, lawlessly and secretly seizing the power to do so, and lying about it when asked, the Executive Branch has clearly lost its moral legitimacy.
We may obey the Executive because, like any people living under illegitimate power, we fear the legal consequences of disobedience.
But it has clearly forfeited any claim to our moral allegiance.
An Illegitimate Executive Branch Is Endangering Not Protecting Us
The Executive has justified its assaults on democracy, like all authoritarian institutions before it, on the grounds that it is protecting us. We frequently hear, for example, that we must accept less freedom in order to have more security. In fact, under present Executive rule, we have neither.
Executive officials insult reason itself when they claim that to protect us they need to collect billions of innocent Americans’ phone calls and Internet records, at a time President Obama himself has said we face a reduced foreign threat that can best be met by police work. Senators Wyden and Udall have stated that “we have not yet seen any evidence showing that the NSA’s dragnet collection of Americans’ phone records has produced any uniquely valuable intelligence.”
On August 21, the Washington Post reported that it took a year-long Electronic Frontier Foundation lawsuit to force the NSA to declassify a secret court ruling revealing they had been illegally spying on American-to-American communications in violation of every public claim they had made on the subject. The idea that this document was classified because some “foreign enemy” could use this FISA report to hurt us is silly. What possible interest could al-Qaeda have in a document proving American agencies were spying on their own people? The FISA court document, like most Executive classified material, was obviously kept secret to hide Executive wrongdoing from Americans not “foreign terrorists”.
And not only does Executive Branch spying on innocent Americans at home not protect us. As dozens of national security experts have stated), its foreign drone and ground assassination programs are in fact endangering us (please see list of experts cited at the end of Part I of this series). They have created exponentially more enemies than they have killed, strengthening U.S. foes and weakening potential allies, and increased the possibility of more domestic terrorist attacks and nuclear materials falling into terrorist hands. A U.S. foreign policy that turns nations like Pakistan into allies not enemies, e.g. by bringing them electricity rather than drones, will make possible the kind of joint police-work which alone can significantly reduce the foreign terrorist threat to America – at a fraction of present vast over-spending.
The Fundamental Moral Issue: Loyalty to Democracy Not the Executive Branch
Article One of the Federal Code of Ethics adopted by Congress in 1958 states that there is a fundamental distinction between loyalty to country and loyalty to any government entity: “any person in Government service should put loyalty to principles and to country above loyalty to Government persons, party, or department.”
As former Army Colonel Andrew Bacevich, who lost a son fighting in Iraq, has put it in the Washington Post:
“to whom do Army privates and intelligence contractors owe their loyalty? To state or to country? To the national security apparatus that employs them or to the people that apparatus is said to protect? What if the interests of the state do not automatically align with those of the country? In that event, the state pursues its own agenda. In doing so, it stealthily but inexorably accumulates power, privilege and prerogatives.”
At the start of each new Congress, members swear to “support and defend the Constitution of the United States against all enemies, foreign and domestic.” This oath clearly obligates them today to fight democracy’s chief domestic enemy today: the U.S. Executive Branch.
And it is not only Members of Congress and Federal Employees who have a duty to fight to preserve democracy against the Executive.
So do we all.
Understanding Democracy’s Enemy: The Problem of “True Believers”
In speaking of the U.S. Executive Branch as the enemy of democracy it is important not to demonize its leaders as individuals. They are like most Americans in their off-hours. Many are patriotic and believe that they are protecting the American people, and their patriotism deserves respect. They presumably love their mates, children and pets in the same proportion as does the general population, also hit Home Depot on the weekends, and enjoy sports and “Downton Abbey” as much as any of us. We are not talking about Nazis here.
But when they go to work for the institution we call the Executive Branch, it is a very different matter. They spy on us, we do not surveil them. They take and waste enormous sums of our money, we do not take theirs. They hide their activities from us and lie to us when they are caught – we do not do so to them. They threaten whistleblowers and journalists, we do not. They claim the right to murder or imprison us without trial, we make no such claim on them. They have endangered us creating exponentially more enemies than they kill, we do not endanger them.
The danger they pose to democracy is not like that of previous authoritarians, who made no secret of their contempt for democracy. On the contrary. This danger arises from people who genuinely think they are protecting democracy even as they destroy it. They have a deep inner need to see themselves as does Rep. Peter King, when he referred to “the thousands of good men and women who every day dedicate their lives to our country, and particularly General Alexander, who is as patriotic as anyone I have ever met in government or anywhere.”
It is the problem of the “True Believer,” one of the most dangerous of social phenomena. Their self-righteous need to feel they are protecting us leads them to feel justified in breaking any law and telling any lie in pursuit of their mission. Freedom of the press, telling the American people the truth, obeying the law, are irrelevant to true believers who decide they have a higher calling.
It is the same phenomenon observed during the Iran-Contra scandal after Congress halted military aid to the Contras. Because Executive Branch officials like James Poindexter and Oliver North were so convinced that they were on the side of the angels they felt justified in operating secretly, lying about their actions, and breaking just laws.
As the Executive Comes Home, Americans Can No Longer Ignore Its Illegitimate Power
For the past 50 years many Americans, notably its political-media-intellectual elites who have known the horrific facts, have turned a blind eye to the Executive Branch’s murder, maiming and making homeless over 20 million non-Americans, mainly civilians. (Please see Part 2 of this series, “The World’s Most Evil And Lawless Institution? The Executive Branch Of The U.S. Government.”)
CNN commentator Jeffrey Toobin recently reflected the Washington elite’s indifference to this mass murder when he called for Private Manning’s imprisonment because the Foreign Service Officers, “who wrote these cables have devoted their lives to making the world a better place.” Like his compatriots, he simply ignored the fact that those Foreign Service Officers have been an integral part of the U.S. Executive apparatus that ruined those 20 million lives, and has in many other nations propped up savage dictatorships practicing mass murder, assassination, torture and incarceration of the innocent.
Joshua Oppenheimer, producer of The Act of Killing about the Indonesian army’s murder of more than 1 million civilians in the 1960, has reported that “you can see that the United States made it very clear that, as a condition for future aid, the Indonesian army must go after the whole Communist Party. And they had guys in the State Department compiling death lists for the army—communist leaders, union leaders, intellectuals who were left-leaning. The signal from the U.S. was clear: ‘We want these people dead.'”
But as the Executive’s indifference to the rule of law and human decency now increasingly comes home, millions of us will no longer be able to ignore Executive wrongdoing. We will be forced to decide whether American democracy is worth fighting for.
Executive Branch secrecy, deception, and surveillance has reached such levels that it has become a revolutionary act simply to insist that U.S. Constitution be obeyed, i.e. that the Executive obtain the “consent of the governed” for its actions – the trailblazing concept by which America replaced the “Divine Right of Kings” with the will of the governed as the basis for legitimate rule.
The Washington political-media elite who call for jailing whistle-blowers for “breaking the law” has lacked the integrity to demand similar punishment for the far more lawless criminal behavior of such Executive Branch officials as NSA chief Keith Alexander and Director of National Intelligence James Clapper.
The recent FISA Court document declassified as a result of an Electronic Frontier Foundation lawsuit, for example, stated that “the court is troubled that the government’s revelations mark the third instance in less than three years in which the government has disclosed a substantial misrepresentation regarding the scope of a major collection program.”
Does anything threaten democracy more than when Executive Branch officials repeatedly deceive the Judiciary, as well as the Legislature and American people? Should not this behavior lead to criminal sanctions for General Alexander?
Many mass media journalists ask who gave whistleblowers the right to release classified information. It is a fair question. But they have not dared ask a far more serious question: who gave Executive Branch officials the right to secretly and unilaterally collect all Americans’ phone and Internet records?
It certainly wasn’t Congress, almost all of whose members had no idea this was going on. The Republican head of the House Judiciary Committee, Bob Goodlatte, recently stated on Face The Nation that
“when this was made known (by) Edward Snowden, the Judiciary Committee conducted a briefing for all of the members of the House. It was very clear then that many of them did not know about these programs or how they worked, including the former chairman of the committee Jim Sensenbrenner who was the chairman when these laws were written and myself.”
Mr. Sensenbrenner, who wrote the Patriot Act has, stated that “as I have said numerous times, I did not know the administration was using the Patriot Act for bulk collection, and neither did a majority of my colleagues.”
It certainly wasn’t the judiciary which allowed the Executive to spy on us, as the Washington Post recently reported: “the leader of the secret court that is supposed to provide critical oversight of the government’s vast spying programs said that its ability to do so is limited and that it must trust the government to report when it improperly spies on Americans.”
And it certainly wasn’t Mr. Obama, who we now know was elected on false promises that he would bring transparency, respect for civil liberties and a free press, and whistleblower protection to the Oval Office. He clearly does not have the right to unilaterally and secretly create a Surveillance State in this country without the consent of the governed. Mr. Obama placed his former post as a Constitutional Lecturer at the very core of his identity. Americans certainly did not give him the right to betray them, everything he claimed to stand for, and the constitution. His approval of Executive spying on Americans, and constant lying about it ever since, in no way legitimizes it.
No, the Executive Branch has seized this power simply because it could, in a lawless power grab without precedent in this country. And if democracy is to be preserved here this rule of men not laws, this practice of might makes right, must be ended.
Known Executive Abuses: Only “The Tip Of An Iceberg”
The Washington Post recently reported on an internal NSA audit revealing that the NSA had violated the law “thousands of times” a year since 2008 at its Fort Meade headquarters alone. And “a single `incident’ in February 2012 involved the unlawful retention of 3,032 files that the surveillance court had ordered the NSA to destroy.” That is, we now know the NSA had committed tens of thousands, possibly hundreds of thousands, of individual abuses already.
It is important to note also that this audit was kept secret from the American people until Edward Snowden revealed it. Typically, it was not hidden because its contents would help America’s enemies. It is laughable to imagine that Ayman al-Zawahari would be helped by knowing that the NSA was constantly breaking American law and lying to its citizens about it. Like the FISA Court report cited above, it was classified secret to keep its findings of NSA abuse from the American people.
This story also revealed that President Obama had again lied to the American people when he stated eight days earlier that “I am comfortable that the program currently is not being abused”. And it was quickly followed by another bombshell. Senate Intelligence Committee members Ron Wyden and Mark Udall, who have been muzzled from revealing specifics, stated that “we have previously said that the violations of these laws and rules were more serious than had been acknowledged”, and we believe Americans should know that even these revelations were but the tip of an iceberg of far greater abuses.”
We now know where the most massive Executive Branch abuses of democracy in postwar history have begun. But we have no idea yet where they will end.
A New Movement To Meet “The Generational Challenge”
The surprising support for the amendment forbidding NSA spying on innocent Americans gave hope that Congress could eventually act to curb the Executive’ threat to democracy. Amazing even its own sponsors it was only stopped because Mr. Obama and Nancy Pelosi abandoned their core principles to muscle Democrats into opposing it.
In an article entitled “How Nancy Pelosi Saved the NSA Surveillance Program,” Foreign Policy Magazine explained how Pelosi betrayed her own constituents, among the most pro-civil liberties voters in the nation: “Hill sources say most of the credit for the amendment’s defeat goes to House Minority Leader Nancy Pelosi. Pelosi privately and aggressively lobbied wayward Democrats to torpedo the amendment”. It quoted a Democratic aide as saying that “Pelosi had meetings and made a plea to vote against the amendment and that had a much bigger effect on swing Democratic votes against the amendment than anything (NSA Chief Keith) Alexander had to say.” Typically, after killing the bill, the magazine reported that Pelosi sought to cover up her misdeeds: “despite the minority leader’s instrumental role in swaying the vote, you won’t find her taking credit: She’s busy protecting her left flank from liberal supporters of Amash’s amendment.”
Despite Obama and Pelosi’s short-term success in beating back attempts to limit mass spying on Americans against their will, however, the bill represented a watershed in American political life. Providing a desperately needed fresh and cleansing wind blowing across a sick and dying Congress, it foreshadowed a new movement aimed at saving American democracy before it is too late.
In the concluding section of this series we will discuss what the basic goals of a new “Democratic Rights Movement” must be if we are to end the Executive Branch’s threat to freedom in this country.
Fred Branfman‘s writing has been published in the New York Times, the Washington Post, Harper’s, and many other publications. He is the author of Voices From the Plain of Jars, and can be reached at email@example.com.