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Reflections of Unconstitutional Precedence

The Ill-Begotten: Reflections of Unconstitutional Precedence


By Phillip J. Rappa

There has been, and still exists, a concerted and systematic effort to disregard and eliminate our civil liberties in the name of terrorism. We are witnessing an assault upon our heritage, our Constitution and our Bill of Rights. Liberty is not a partisan issue - and once given up will see us forced again to take up arms in the battle to regain them. As Benjamin Franklin so eloquently pronounced, "Those who would give up essential liberties for a measure of security, deserve neither liberty nor security."

Fear has replaced reason and logic. As Americans, when discussing the issue of preserving liberty while providing security, our foremost concern should be human rights, civil rights and civil liberties.

Since the first strike on the twin towers in 1993, the Oklahoma Federal Building bombing in 1995 as well as the events of September 11th, 2001 and the Anthrax scare, collectively we've had to grapple with the devastating scope and scale of these attacks. It has forced each of us to re-assess our understanding of the believable and unbelievable - of what's thinkable and unthinkable. Our reality makes the best Hollywood script pale in comparison.

We must re-assess our understanding of our government's ability to protect us, as well as its apparent inability to do so. We spend one third of our GNP on defense. Billions of dollars. Yet they didn't see it coming - they weren't aware. They didn't react quickly enough. The question that begs to be answered, based on prior performance is, do we give our government more control over our lives? Add a bigger budget? Would that equate to safety? Do we even trust them with our lives?

Our democracy is a young 227 years old. Our battles for social justice have transpired only within the last 100 years - worker's rights, women's rights, civil rights, human rights, disabled rights, gay rights. These make up the social fabric binding us together. It is the experience and the human statements that what we have in common which far outweigh our differences.

All of us bear the scars and heartache from these battles. Yet, ideological winds push us to and fro - from left to right - two steps forward - four steps back. It cannot be stressed enough, pled enough, or cajoled enough that it is our personal responsibility to know the issues of the day - to take an active roll in this democratic experiment.

We must be counted on to hold dear our convictions and belief in the Constitution and Bill of Rights. We must be counted among those who oppose any elected official or talking head on television or radio who teasingly speak of our heritage and birthright as if it were antique gossip.

Together we must not await some distant spring hoping for some fortuitous cosmic intervention. Nor is now the time to sit on our collective asses and let history record the blame and complicity of this nation's citizens for the demise of its democracy. We must never shirk, relinquish nor abdicate our responsibility to this generation and future generations to the rights of free men and women to self determination. We must never feign amnesia to our principles and convictions. We must be willing to fight the fight in honor of those who came before us who shed their blood and perished for our core beliefs.

The Patriot Act and the impending Patriot Act II, known as the Domestic Security Enhancement Act of 2003, are two pieces of legislation that are the culmination of a lopsided battle between the government and the governed. It changes the dynamic; the right to dissent, the right to accountability, due process and the legacy and process of checks and balance that separates this democratic republic from all that came before.

We are constantly told there is precedent for what this administration is doing - historical precedent. That is true. But what we aren't being told is more frightening. These newest incantations, known as the Patriot Acts, are the latest children begot from previous unconstitutional actions of our past.

In the beginning, in 1798, the US Congress approved The Sedition Act, which made it unlawful for anyone to write, print, utter or publish, or assist in doing all of the above; any false, scandalous and malicious writing against the government, congress or the president; to infer, defame, bring them into contempt, disrepute; to excite against them, the hatred of the good people of United States of America. Or to stir sedition within the United States; made it unlawful to oppose, resist or defeat any law. Lastly, The Sedition Act made it unlawful to aide, encourage, or abet any hostile designs of any foreign nation against the United States of America.

As to the last stipulation, I will assume that all of us agree that this is a good law. But, as to the rest, so goes the right to assemble, the right to dissent and the right to petition our grievances. If The Sedition Act was made law of the land for perpetuity, the elimination of slavery, women's right to vote, worker's rights to a fair wage and a safe work environment would never have come into existence. Forget the investigations of J.F.K.'s assassination, Watergate, Irangate, the first shuttle explosion, Monicagate, or to this present day yet unidentifiable "gate" waiting to be opened.

The Boogie Man of The Sedition Act was the fear of libel and jail.

In 1861, during the Civil War, in defiance of a Supreme Court ruling, Abraham Lincoln arrested 13,000 draft resisters and Southern sympathizers. Several newspapers were shut down for expressing pro-South views, and editors were among those jailed for supporting the South.

Two cases of merit worth noting where Ex Parte Merryman and Ex Parte Milligan: In the Merryman case, John Merryman was arrested on the vague suspicion of treason. There was no warrant issued, nor any witnesses or proof of any illegal action. Mr. Merryman wrote the Supreme Court asking for a Writ of Habeas Corpus requesting he be tried in a civil court as opposed to a military court. Chief Justice Taney challenged President Lincoln's suspension of the writ of habeas corpus. He criticized the President for improperly substituting military authority for civilian authority and emphatically warned that the people of the United States were "no longer living under a government of laws, but ... at the will and pleasure of the army officer in whose military district they happen to be found."

In Ex Parte Milligan, President Abraham Lincoln instituted trial by military commission for civilians in areas where civil courts continued to function. In 1864, L.P. Milligan, a rebel, was tried and convicted of conspiracy by a military commission in Indiana. He was sentenced to die for his role in a plan to release and arm Confederate prisoners to invade Indiana. Milligan appealed his conviction by the military commission to the Supreme Court of the United States.

The opinion of the court unanimously held that the President acted unconstitutionally when he instituted trial by military commission for civilians. The Court further reasoned that neither Congress nor the President have the power to authorize military commissions to try civilians in areas outside actual war zones. The decision established that martial law must be confined to theaters of active military operations.

Then, just before the outbreak of WWI, The Sedition Act was reworked and reinstated under the Wilson Administration along with the Espionage Act of 1917. The Sedition Act again arrested and jailed anyone who uttered, wrote, printed or published anything deemed disloyal, profane, scurrilous or abusive language about the United States or its government. The Espionage Act made it unlawful and jailed anyone who refused duty in the military, or who interfered with foreign relations or commerce, with a threat of a $10,000 fine and 20 years in jail.

Over 400 conscientious objectors were imprisoned under this legislation. Rose Pastor Stokes was sentenced to ten years in prison for writing a letter to the letter of the Kansas City Star that stated, "No government that is for the profiteers can also be for the people, and I am for the people while the government is for the profiteers." Kate Richards O'Hara was sentenced for 5 years for making an anti-war speech in North Dakota.

So, again, the right to assemble, the right of dissent, the right to petition one's grievances was snuffed.

The Boogie Man in 1917: labor unions, socialists, nickname, Anarchists.

Then in 1919 and 1920, Attorney General Mitchell Palmer and his trusted assistant, J. Edgar Hoover, rounded up citizen dissidents and ten thousand legal immigrants in what was called "The Palmer Raids". They were subjected to indefinite detention without charges or due process under the 14th Amendment. Of the ten thousand legal immigrant's imprisoned, two hundred and forty were deported.

During WWII, Japanese Americans were placed in concentration camps simply because they were Japanese. Franklin Delano Roosevelt, Executive Order Number 9066, stripped US citizens of Japanese descent of their jobs, businesses and homes.

Boogie Man: just being Asian.

The fabulous 50's, McCarthyism and the House of Un-American Activities, ushered in an era of social paranoia resulting in public denunciation, witch hunts, blacklisting and in some cases, jail. This came to be known as, "The Red Scare".

The Boogie Man: Communism.

Aah, the unforgettable 60's and the unmemorable 70's - J. Edgar Hoover's FBI carried over McCarthyism with the FBI's COINTELPRO, (Counter Intelligence Program), used to subvert social activist's organizations. What social activist organizations you may ask? M.L. King's Southern Christian Leadership Conference, Black Panthers, American Indian Movement, Lesbian/Gay Movement, Anti-Viet Nam Movement, Puerto Rico Freedom Movement, and the Earth Day Movement. All were targeted for espionage, infiltration and disruption.

The FBI likened social activism to Communism. The Boogie Man: Communism.

For those of you old enough to remember those dark days, you will recall it was the investigative findings of the Church Senate Hearings that brought to light the over-reaching involvement of the CIA and the FBI's stifling of 1st Amendment issues. As a result of these findings, it became apparent congress had no choice but to reign in these intelligence agencies.

By the 1970's, the Viet Nam War was over so Richard Milhous Nixon began the War on Drugs. Congress then went on to pass the 1978 Foreign Intelligence Surveillance Act (FISA). This Act allowed intelligence agencies to conduct criminal investigations on American citizens without adherence to basic constitutional protections.

The wonderful 80's aah, I remember it well, it was called a "New Dawn in America". The era of deregulation, Irangate, Lt. Col. Oliver North's Sandinista debacle, Rumsfeld shaking hands with Saddam, Reagan administration selling him arms, gas and Anthrax; at the same time in Afghanistan, training and arming the Alqueda.

It is also the only administration to hold the unique distinction of having the most indictments of perjury and obstruction of justice in American history, thirty-eight indictments to be exact.

While the Reagan administration was fending off congressional hearings because they found it most difficult to abide by the constitution or the laws of the land, they were, at the same time, devising and designing legislation with provisions that reeked of unconstitutionality. Their legislation gave renewed life to the relics of the McCarthy era: guilt by association or political association was grounds for exclusion and/or deportation; the band on supporting lawful activities of groups labeled terrorists; the use of secret evidence; the elimination of due process; and the elimination of habeas corpus; empowering the Secretary of State to designate any political or social group as terrorists without judicial or congressional review.

Reagan proposed these provisions to Congress and they were rejected on constitutional grounds. Bush the elder, made similar proposals and again they were rejected as unconstitutional.

Then came the roaring 90's: 1993, the first bombing of the twin towers; 1995, Oklahoma City federal building bombing; deregulation unraveling, stock market bubble; the demise of the Glass Stegal Act. With the horror of the Oklahoma City bombing, the Clinton administration ushered in the 1996 Anti-Terrorism Act, which included all the anti-constitutional provisions of Reagan and Bush the elder administrations: guilt by association, the use of secret evidence, and the demise of habeas corpus.

In the book, "Terrorism in the Constitution: Sacrificing Civil Liberties in the Name of National Security", the authors wrote, "Under this act it has produced no visible, concrete results in the fight against terrorism." They added, "That the principles espoused in this act were shown in case after case to be both unconstitutional and ineffective in the fight against terrorism."

There is a timeline that supports the contention that this legislation and what followed in 2001 was fear over reason. During the congressional hearings in the House, which took place shortly after the Oklahoma bombing in 1995, the House held five hearings in April, May and June in 1995. The showboating Senate held one - a week after the Oklahoma incident.

When our congressman, both republicans and democrats, asked earnestly for answers to the following questions:
(1) for an explanation as to the need for this legislation;
(2) what lessons had been learned by the 1993 World Trade Center bombing that indicated that federal and state laws were deficient;
(3) to identify the specific problems this legislation would cure;
(4) why law enforcement required new powers to combat terrorism; and
(5) how this proposed law would have affected the Oklahoma incident, the administrative proponents, as well as the Director of the FBI, Mr. Freech, were unable and unwilling to explain why this new legislation was needed.

They all avoided answering the questions with the pat answer, "I'll have to investigate that. I'll get back to you."

In spite of all the unanswered questions, one year after Oklahoma, the US. Anti-Terrorism Act became law.

We elect our representatives and send them to congress to represent the better side of our nature and of our consciousness. We do not send them there to tow the line for whoever is president; not to legislate by mob rule. In a democratic society we must adhere to fundamental principles which ought to govern our response to terrorism. We should focus on perpetrators of crime and avoid indulging in guilt by association. We should maintain procedures designed to identify the guilty and exonerate the innocent. We must insist on legal limits on surveillance authority and bar all political spying.

We the people must insist that our government preserve our liberty while providing our security. We must insist that our government use its ability and capacity to keep us secure, but only within the confines of due process, respect for freedom of speech and association, and we demand a system of government whose powers are subject to the checks and balances and accountability.

******************

© Philip J. Rappa 2003

Bio: Philip J. Rappa is President of Together Forever Changing, Inc.; a national non-profit organization whose mission is to educate, stimulate, and invigorate the citizenry to the dangers inherent in the US Patriot Acts. He is also an award-winning writer, filmmaker, documentarian, lecturer, and humanitarian.


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