The Fight of Our Lives

The battle to beat back the NSA – and restore our old republic

by , January 06, 2014

The idea that this country is on a fast track to fascism was never taken very seriously by Americans, and for a very good reason: we have a Constitution that, whatever problems we’ve had living up to it, has generally been a bulwark against the imposition of anything resembling authoritarianism in these United States. Although at certain points in our history we’ve come awfully close to losing it, the constitutional order seemed to survive the many attempts to subvert and even overthrow it since the Founders put it in place as the centerpiece of our system. That is, until the dawn of September 11, 2001….

The blizzard of draconian legislation enacted in the wake of that fateful day – the PATRIOT Act and accompanying legislation – effectively destroyed the legal basis of the Fourth Amendment. Recognizing this, the Bush administration moved on a number of fronts to create the foundations of a comprehensive system of surveillance – not just of our enemies, but of all of us, here in the US. We didn’t know the details – although some, like the ill-fated "Total Information Awareness" project, leaked out – but no one in Congress at the time looked into the matter too strenuously. Better left unsaid what everyone in Washington assumed to be fact: that the US government is spying on its own people.

Back in those days, a few commentators (and, of course, Ron Paul) saw what was coming – what had, indeed, already come – but they were speaking in a vacuum. In 2005, in a column discussing the question of how fascism might come to America, I wrote:

"From the moment the twin towers were hit, the fascist seed began to germinate, to take root and grow. As the first shots of what the neocons call ‘World War IV’ rang out, piercing the post-Cold War calm like a shriek straight out of Hell, the political and cultural climate underwent a huge shift: the country became, for the first time in the modern era, a hothouse conducive to the growth of a genuinely totalitarian tendency in American politics….

"The Republican Party’s response to 9/11 was to push through the most repressive series of laws since the Alien and Sedition Acts, starting with the ‘PATRIOT Act’ and its successors – making it possible for American citizens to be held without charges, without public evidence, without trial, and giving the federal government unprecedented powers to conduct surveillance of its own citizens. Secondly, Republicans began to typify all opposition to their warmaking and anti-civil liberties agenda as practically tantamount to treason. Congress, thoroughly intimidated, was silent: they supinely voted to give the president a blank check, and he is still filling in the amount…"

We didn’t know, at the time, what the exact amount was: today we are learning, to our growing horror, what we paid for ignoring Jefferson’s admonition about eternal vigilance being the price of liberty. We have learned that, ever since the Bush era – and continuing, with renewed vigor, into the Age of Obama – our government has imposed a wide-ranging dragnet on the information highway. They’ve been collecting our meta-data, reading our emails, and tracking our location, all in the name of a never-ending "war on terrorism." The protections previously afforded by the Constitution and the long tradition of American jurisprudence were abolished – behind our backs. It was all done in the dark, with even the court proceedings "legalizing" this anti-constitutional coup kept secret – not for any valid "security" reason, but plainly because such brazen chicanery could never stand the light of day.

Snowden’s gift to the American people was to unveil this covert palace revolution. Not that such a signal event had gone entirely unnoticed. Bob Woodward, writing in Plan of Attack (2004), reported:

"[Colin] Powell felt Cheney and his allies – his chief aide, I. Lewis ‘Scooter’ Libby, Deputy Defense Secretary Paul D. Wolfowitz and Undersecretary of Defense for Policy Douglas J. Feith and what Powell called Feith’s ‘Gestapo’ office – had established what amounted to a separate government."

Seymour Hersh put it more colorfully: in his view the War Party "overthrew the American government. Took it over. It’s not only that the neocons took it over but how easily they did it – how Congress disappeared, how the press became part of it, how the public acquiesced."

That they "overthrew the American government" is precisely correct: once the "legal" foundations of the coup were in place with the passage of the Patriot Act, the stage was set for the creation of a covert Surveillance State. The first steps of this extra-legal end-run around the Constitution were taken by the Bush administration. Go back and look at An End to Evil: How to Win the War on Terror, the 2004 neocon manifesto co-written by Bush speechwriter David Frum and the then-ubiquitous Richard Perle: even as they were advocating the creation a comprehensive national database containing a complete dossier on all US residents, the administration they served in was illegally engaged in doing just that.

When the country elected Barack Obama, they thought they had kicked the coup plotters out of the White House and out of power. Yet the neocons left their legacy, which stayed intact: the secret Panopticon they built was inherited and expanded by Obama & Co. Indeed, Obama’s Justice Department has gone far beyond the Bush administration in their fierce prosecution of whistle-blowers and their brazen intimidation of the media – spying on Fox News and Associated Press reporters who had their phones and emails placed under surveillance.

If anything like that had happened during the Bush years, Nancy Pelosi would’ve been at the head of a massive San Francisco demonstration where speaker after speaker would’ve denounced the "fascist" Bush "regime." Today Pelosi is leading the charge against the efforts of Republican congressman Justin Amash to rein in the NSA.

The natural skepticism – and optimism – of Americans causes them to look at doomsayers with a jaundiced eye. One conjures this image of a man on a street corner wearing a sign: "The End is Nigh!" As you try to hurry past him, he thrusts a crudely printed leaflet in your hand. You take it, and then, a block or so safely distant, you throw it in the nearest trashcan. No writer wants to become such a caricature, especially as he or she gets on in years, when the tendency to acquire odd obsessions becomes most pronounced.

And yet there is such a thing as the canary in a coal mine, signaling a point reached and passed. One might argue that in spite of the shocking scope of the NSA’s reach, we still have the means to change the law: our democracy, they argue, is still intact, and it’s just hyperbole to imagine we’re anything close to a police state. This is supposed to reassure us, but on the other hand what kind of a message is the NSA sending when they refuse to deny they’re conducting surveillance of American lawmakers? Asked by Senator Bernie Sanders if the NSA is spying on members of Congress, the NSA replied:

"NSA’s authorities to collect signals intelligence data include procedures that protect the privacy of US persons. Such protections are built into and cut across the entire process. Members of Congress have the same privacy protections as all US persons. NSA is fully committed to transparency with Congress. Our interaction with Congress has been extensive both before and since the media disclosures began last June.

"We are reviewing Senator Sanders’s letter now, and we will continue to work to ensure that all members of Congress, including Senator Sanders, have information about NSA’s mission, authorities, and programs to fully inform the discharge of their duties."

The headlines (e.g. in the Guardian and the Washington Post) frame it in terms of the NSA refusing to deny they spy on Congress, but it’s more like they’re openly proclaiming that yes indeed they do. If "members of Congress have the same privacy protections as all US persons," then – according to the stories we’ve been reading in the Guardian, the Washington Post, and elsewhere – that means they are in fact collecting congressional meta-data and scooping up congressional emails "incidentally" albeit persistently and often.

So the NSA’s answer is clearly: Yes, we’re spying on you, too. Did you think you were any different from the man on the street? And what’re you gonna do about it anyway?

We are fast entering what is in effect the post-democratic era, one in which even the usual holes in the armor of the political class are closed up, and the thin veneer of the "rule of law" is stripped away to reveal the lawless essence of all States everywhere. When they openly proclaim their contempt for democratic institutions, that’s when people should really begin to worry and fear for the future.

Another canary in the coal mine is the government’s assault on a fundamental American right – again in the name of the "war on terrorism" – and that is the right to travel. I’ve written about the difficulties encountered by Glenn Greenwald and Laura Poitras in traveling to and from the United States. Glenn is a US citizen, and yet he cannot come back to the country without the possibility of being met at the airport by Homeland Security goons who will spirit him away to the gods know where. What kind of a country are we living in?

And if you think it just happens to "dissidents" like Greenwald, take a look at what happened to Rahineh Ibrahim, a doctoral candidate at Stanford, who had lived in the US for many years. She was married in the US, her daughter is an American citizen, and she was here on a valid student visa. One day in 2005, she tried to board a San Francisco flight to Kona to attend an academic conference: she was denied a boarding pass, although they let her board the next day. She went to Malaysia after the conference, and when she tried to return home found her US visa had been revoked. Effectively exiled from her family in the US, Dr. Ibrahim – who finished her doctorate by completing online courses – is taking the US government to court.

The trial is happening right now, but there’s little coverage of it in the mainstream media. Yet the right to travel is what supposedly set us apart from those bad old Commies during the cold war era. The Berlin Wall was meant to keep East Berliners from escaping to the West. Now we’ve set up a wall that keeps dissident journalists and some just plain ordinary people out. It doesn’t matter if they’re American citizens, like Greenwald and Poitras, or legal residents, like Rahineh Ibrahim: the "war on terrorism" trumps all rights, all Constitutions, and is itself above the law.

All the elements of a police state are in place: universal surveillance, arbitrary restrictions on travel, and, most importantly, the increasingly radical and aggressive political pushback by the NSA and its supporters in Washington – up to and including the open acknowledgment that they’re fully aware of the online habits of whatever members of Congress are foolish enough to get in their way.

If that isn’t an outright threat, I don’t know what is. Not only that, but they’re sharing raw metadata with the Israelis – who I’m sure would never make use of compromising information to influence votes, but, hey, you never know.

My 2005 warning, linked above, seems mild in retrospect. The whole piece was premised on the idea that we were on the verge of slipping into an authoritarian chasm and were only just hanging on by our fingernails due to the lack of a second 9/11-type terrorist attack. The next one, I averred, would push us over the brink. Little did I know that by 2005 we were already far down that slippery slope. Today I wonder when we’ll reach bottom, and fear that the latest edition of the Snowden files will reveal how I missed that one, too.

This all reminds me of one of my favorite Garet Garrett quotes.

"There are those who still think they are holding the pass against a revolution that may be coming up the road. But they are gazing in the wrong direction. The revolution is behind them. It went by in the Night of Depression, singing songs to freedom."

Change the last line to "It went by in the Night of 9/11, singing songs to the war on terror," and you’ll have defined our predicament precisely.

Garrett, a prolific writer and editor of the Saturday Evening Post, was writing about the New Deal: his premise was that FDR and his Brain Trusters had effected a "revolution within the form," destroying the constitutional order from within by depriving it of its content and leaving just the dead husk intact. Now even that mummified corpse is being defiled, and cast aside, as America’s political class seeks to consolidate and defend an openly authoritarian regime.

It’s zero hour in America. Where is the leadership that will rise to the challenge? Who will take on the tyranny coalescing and solidifying even as I write? Rand Paul’s class action lawsuit against the NSA is a step in the right direction, but it’s going to take more than lawyers to beat the NSA and restore our old republic. Some days I’m optimistic, other days – not so much. Whatever happens, of one thing we can be sure: we’re in the fight of our lives.


You can check out my Twitter feed by going here. But please note that my tweets are sometimes deliberately provocative, often made in jest, and largely consist of me thinking out loud.

I’ve written a couple of books, which you might want to peruse. Here is the link for buying the second edition of my 1993 book, Reclaiming the American Right: The Lost Legacy of the Conservative Movement, with an Introduction by Prof. George W. Carey, a Foreword by Patrick J. Buchanan, and critical essays by Scott Richert and David Gordon (ISI Books, 2008).

You can buy An Enemy of the State: The Life of Murray N. Rothbard (Prometheus Books, 2000), my biography of the great libertarian thinker, here.

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