Despite what some may think, the Constitution is no magical incantation against government wrongdoing. Indeed, it’s only as effective as those who abide by it.
However, without courts willing to uphold the Constitution’s provisions when government officials disregard it and a citizenry knowledgeable enough to be outraged when those provisions are undermined, it provides little to no protection against SWAT team raids, domestic surveillance, police shootings of unarmed citizens, indefinite detentions, and the like.
Unfortunately, the courts and the police have meshed in their thinking to such an extent that anything goes when it’s done in the name of national security, crime fighting and terrorism. Consequently, America no longer operates under a system of justice characterized by due process, an assumption of innocence, probable cause and clear prohibitions on government overreach and police abuse. Instead, our courts of justice have been transformed into courts of order, advocating for the government’s interests, rather than championing the rights of the citizenry, as enshrined in the Constitution.
Dan Stein, an intern with the SCOTUS Blog, runs after court decisions from the Supreme Court in Washington, Monday, June 24, 2013. Credit: AP
Just recently, for example, the Supreme Court refused to hear Hedges v. Obama, a legal challenge to the indefinite detention provision of the National Defense Authorization Act of 2012 (NDAA), thereby affirming that the president and the U.S. military can arrest and indefinitely detain individuals, including American citizens, based on a suspicion that they might be associated with or aiding terrorist organizations.
The Court’s decision reflects a mindset in government in which the rule of law, the U.S. Constitution, once the map by which we navigated sometimes hostile terrain, has been unceremoniously booted out of the runaway car that is our government, driven over and left for road kill on the side of the road. All that can be seen in the rear view mirror are the tire marks on its ragged frame.
What we are dealing with, as I document in my book "A Government of Wolves: The Emerging American Police State," is a run-away government hyped up on its own power, whose policies are dictated more by paranoia than need. Making matters worse, “we the people” have become so gullible, so easily distracted, and so out-of-touch that we are ignoring the warning signs all around.
The Supreme Court’s refusal to hear the NDAA indefinite detention case—which challenged whether the government can lawfully lock up American citizens who might be deemed extremists or terrorists (the government likes to use these words interchangeably) for criticizing the government—is one such warning sign that we would do well to heed.
A woman wearing oversized sunglasses lettered with the words "stop spying" listens to speakers during the Stop Watching Us Rally protesting surveillance by the U.S. National Security Agency, on October 26, 2013, in front of the U.S. Capitol building in Washington, D.C. (Photo by Allison Shelley/Getty Images)
The building blocks are already in place for such an eventuality: the surveillance networks, the militarized police, the courts sanctioning the government’s methods, no matter how unlawful, and the detention facilities, whether private prisons or FEMA internment camps, to lock up the troublemakers.
History shows that the U.S. government is not averse to locking up its own citizens for its own purposes. One need only go back to the 1940s, when the federal government proclaimed that Japanese-Americans, labeled potential dissidents, could be put in concentration (a.k.a. internment) camps based only upon their ethnic origin, to see the lengths the federal government will go to in order to maintain “order” in the homeland.
The U.S. Supreme Court validated the detention program in Korematsu v. US (1944), concluding that the government’s need to ensure the safety of the country trumped personal liberties. That decision has never been overturned.
In fact, the creation of detention camps domestically has long been part of the government’s budget and operations, falling under the jurisdiction of the Federal Emergency Management Agency. FEMA’s murky history dates back to the 1970s, when President Jimmy Carter created it by way of an executive order merging many of the government’s disaster relief agencies into one large agency. During the 1980s, however, reports began to surface of secret military-type training exercises carried out by FEMA and the Department of Defense. Code named Rex-84, 34 federal agencies, including the CIA and the Secret Service, were trained on how to deal with domestic civil unrest.
Fast forward to 2009, when the Department of Homeland Security released two reports, one on “Rightwing Extremism,” which broadly defines rightwing extremists as individuals and groups “that are mainly antigovernment, rejecting federal authority in favor of state or local authority, or rejecting government authority entirely,” and one on “Leftwing Extremism,” which labeled environmental and animal rights activist groups as extremists. Both reports use the words terrorist and extremist interchangeably.
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These reports indicate that for the government, so-called extremism is not a partisan matter. Anyone seen as opposing the government—whether they’re Left, Right or somewhere in between—is a target, which brings us back, full circle, to where we started: With the NDAA’s indefinite detention provision, whose language is so broad and vague as to implicate anyone critical of the government.
Unfortunately, Americans haven’t been overly concerned about the rights of others, whether non-citizens or suspected terrorists, and now we’re the ones in the unenviable position of being targeted for indefinite detention by our own government. It will only be a matter of time before they learn the hard way that in a police state, it doesn’t matter who you are or how righteous you claim to be—eventually, you will be lumped in with everyone else and everything you do will be “wrong” and suspect.
Martin Niemoller learned that particular lesson the hard way. A German military officer turned theologian, Niemoller was an early supporter of Adolf Hitler’s rise to power. It was only when Hitler threatened to attack the churches that Niemoller openly opposed the regime. For his efforts, Neimoller was eventually interned in the Sachsenhausen and Dachau concentration camps from 1938 to 1945.
As Niemoller reportedly replied when asked by his cellmate why he ever supported the Nazi party:
I find myself wondering about that too. I wonder about it as much as I regret it. Hitler's assurance satisfied me at the time…I am paying for that mistake now; and not me alone, but thousands of other persons like me.
Constitutional attorney John W. Whitehead is founder and president of The Rutherford Institute and author of "A Government of Wolves: The Emerging American Police State." Whitehead can be contacted at johnw@rutherford.org.
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