Wages of Rebellion

by Chris Hedges

  The Second Circuit overturned Forrest’s ruling in July 2013 in a decision that did not force it to rule on the actual constitutionality of Section 1021(b)(2). It cited the Supreme Court ruling in Clapper v. Amnesty International, another case in which I was a plaintiff, to say that I had no standing, or right, to bring the NDAA case to court. Clapper v. Amnesty International had challenged the secret wiretapping of US citizens under the FISA Amendments Act of 2008. The Supreme Court had ruled in Clapper that our concern about government surveillance was “speculation.” It said that we were required to prove to the court that the FISA Act would be used to monitor those we interviewed. The Court knew, of course, that the government does not disclose whom it is monitoring. And it knew we could not offer proof.

  The documentation proving that we—and nearly all Americans—are victims of government surveillance had not yet been provided to the press by Edward Snowden. Snowden, who worked for the consulting firm Booz Allen Hamilton at a National Security Agency (NSA) center in Hawaii, fled the country before leaking thousands of classified documents that detailed the massive government surveillance operation within the United States and abroad. The Second Circuit used the spurious Supreme Court ruling to make its own spurious ruling. It said that because we could not show that the indefinite-detention law was about to be used against us, just as we could not prove government monitoring of our communications, we could not challenge the law. It was a dirty game of judicial avoidance on two egregious violations of the Constitution.

  In refusing to hear our lawsuit, the courts have overturned nearly 150 years of case law that repeatedly holds that the military has no jurisdiction over civilians. Now a US citizen charged by the government with “substantially supporting” al-Qaeda, the Taliban, or those in the nebulous category of “associated forces”—some of the language of Section 1021(b)(2)—is lawfully subject to extraordinary rendition on US soil. And those seized and placed in military jails can be kept there until “the end of hostilities.”

  Judge Forrest, in her 112-page ruling against the section, noted that under this provision of the NDAA whole categories of Americans could be subject to seizure by the military. These might include Muslims, activists, Black Bloc anarchists—so named because they dress in black, obscure their faces, move as a unified mass, seek physical confrontations with police, and destroy property—and any other Americans labeled as domestic terrorists by the state. Forrest wrote that Section 1021(b)(2) echoed the 1944 Supreme Court ruling in Korematsu v. United States, which supported the government’s use of the military to detain at least 110,000 Japanese Americans in internment camps without due process during World War II.8

  When a citizenry no longer feels that it can find justice through the organs of power, when it feels that the organs of power are the enemies of freedom and economic advancement, it makes war on those organs. Those of us who are condemned as radicals, idealists, and dreamers call for basic reforms that, if enacted, would make peaceful reform possible. But corporate capitalists, now unchecked by state power and dismissive of the popular will, do not see the fires they are igniting. The Supreme Court ruling on our challenge, like the imprisonment of Lynne Stewart, is one more signpost on the road to revolt. The longer citizens are locked out of and abused by systems of power the more these systems become targets.

  Section 1021(b)(2) is but one piece of the legal tyranny now in place, along with our wholesale surveillance, to ensure total corporate control. The state can order the assassination of US citizens. It has abolished habeas corpus. It uses secret evidence to imprison dissidents, such as the Palestinian academic Mazen Al-Najjar. It employs the Espionage Act to criminalize those who expose abuses of power. A ruling elite that accrues for itself this kind of total power, history has shown, eventually uses it. And at that point we cement into place a brutal corporate totalitarianism.

  The cornerstone of control is the state’s system of surveillance, exposed by Snowden. I saw the effect of blanket surveillance as a reporter in the Stasi state of Communist East Germany. I was followed by men, invariably with crew cuts and leather jackets, whom I presumed to be agents of the Stasi—the Ministry for State Security, which the ruling Communist Party described as the “shield and sword” of the nation.9 Stasi agents visited those I interviewed soon after I left their homes. My phone was bugged. Some of those I worked with were pressured to become informants. Fear hung like icicles over every conversation. People would whisper to me to convey the most banal pieces of information.

  The Stasi did not set up massive death camps and gulags. It did not have to. Its network of as many as 2 million informants in a country of 17 million was everywhere. There were 102,000 secret police officers employed full-time to monitor the population—one for every 166 East Germans.10 The Nazis broke bones. The Stasi broke souls. The East German security apparatus pioneered the psychological disintegration skills that torturers and interrogators in America’s black sites, and within our prison system, have honed to a chilling perfection.

  The goal of wholesale surveillance, as Hannah Arendt wrote in The Origins of Totalitarianism, is not, in the end, to discover crimes, “but to be on hand when the government decides to arrest a certain category of the population.”11 This is what happened to Stewart. And because Americans’ emails, phone conversations, Web searches, and geographical movements are recorded and stored in perpetuity in government databases, there will be more than enough “evidence” to seize us should the state deem it necessary. This information waits like a dormant virus inside government vaults to be released against us. It does not matter how trivial or innocent that information is. In totalitarian states, justice, like truth, is irrelevant.

  Any state that has the capacity to monitor all its citizenry, any state that has the ability to snuff out factual public debate through the control of information, any state that has the tools to instantly shut down all dissent, is totalitarian. The state may not use this power today. But it will use it if it feels threatened.

  Those who sweep up all of our financial data, our tweets, our file transfers, our live chats, our medical data, our criminal and civil court records, those awash in billions upon billions of taxpayer dollars, those who have banks of sophisticated computer systems—along with biosensors, scanners, face recognition technologies, and miniature drones—are those who have obliterated our anonymity, our privacy, and our liberty.

  No one who lives under constant surveillance, who is subject to detention anywhere at any time, whose conversations, proclivities, and habits are recorded, stored, and analyzed, can be described as free. This is the relationship of masters and slaves. Yet the state assures us that our rights are sacred, that government abides by the will of the people and the consent of the governed, that our right to privacy is protected. And so begins the surrealist nightmare that writers such as Bulgakov and Roth have chronicled. The vast distance between perceived reality and the official version of reality is characteristic of totalitarian systems. The state abolishes liberty and rights while claiming to uphold and defend them.

  The most effective tyranny, as Arendt points out in The Origins of Totalitarianism, crushes its marginalized and harassed opponents and, through fear and the obliteration of privacy, incapacitates everyone else. The object of efficient totalitarian states, as George Orwell understood, is to create a climate in which people do not think of rebelling, a climate in which incarceration and state-sanctioned murder are used against only a handful of unmanageable renegades. The totalitarian state achieves this control, Arendt wrote, by systematically shutting down all human spontaneity—and by extension, human freedom—through fear. This fear and loss of spontaneity keep a population traumatized and immobilized and turn the courts, along with legislative bodies, into mechanisms that legalize the crimes of state.12

  This legal sleight of hand is how our most basic constitutional rights have been obliterated. The Fourth and Fifth Amendments of the Constitution, which were established to protect us from unwarranted intr
usion by the government into our private lives, may still technically be law but they have been judicially abolished. The Fourth Amendment was written in 1789 in direct response to the arbitrary and unchecked search powers that the British had exercised through general warrants called “writs of assistance,” which played a significant part in fomenting the American Revolution. The amendment limits the state’s ability to search and seize to a specific place, time, and event approved by a magistrate. It is impossible to square the bluntness of the Fourth Amendment with the arbitrary search and seizure of all our personal communications.

  The courts and legislative bodies of the corporate state now routinely invert our most basic rights to justify corporate pillage and repression. They declare that massive and secret campaign donations—a form of legalized bribery—are protected speech under the First Amendment. They define corporate lobbying—under which corporations lavish funds on elected officials and write our legislation—as the people’s right to petition the government. And according to new laws and legislation, we can be tortured or assassinated or locked up indefinitely by the military, be denied due process, and be spied upon without warrants. The US Constitution has not been rewritten, but steadily emasculated through a dirty system of judicial and legislative reinterpretation. We have been left with a fictitious shell of democracy and a totalitarian core.

  Once the state has the power to intrude into the private lives of its citizens, it becomes omnipresent. It listens and collects everything, no matter how arcane or trivial. The NSA bugged the conclave that elected the new pope.13 It bugged the phone of the German chancellor, Angela Merkel, and in fact it has bugged most of the leaders of Europe.14 It intercepted the talking points of UN Secretary-General Ban Ki-moon ahead of a meeting with President Obama.15 It bugged businesses like the Brazilian oil company Petrobras and acquired information regarding American law firms engaged in trade deals with Indochina for shrimp and clove cigarettes.16

  The NSA, in conjunction with Australian intelligence, carried out a major eavesdropping effort focused on the United Nations Climate Change Conference in Bali in 2007.17 NSA officials also bugged their own ex-lovers, wives, and girlfriends. A technical system of surveillance designed to monitor those considered to be a danger to the state has been “turned against you,” in the words of the NSA whistle-blower William Binney. Thomas Paine described despotic government as a fungus growing out of a corrupt civil society.18 This is what has happened to us.

  But our corporate totalitarian rulers deceive themselves as often as they deceive the public. Politics, for them, is public relations. Lies are told not to achieve any discernible goal of public policy, but to protect the image of the state and its rulers. These lies have become a grotesque form of patriotism. James Clapper, the director of national intelligence, lied under oath to Congress about the pervasive state surveillance of the citizenry. This spectacle was a rare glimpse into the absurdist theater that now characterizes American political life. A congressional oversight committee holds public hearings. It is lied to. It knows it is being lied to. The person who lies knows the committee members know he is lying. And the committee members, to protect their security clearances, say and do nothing.19

  The state’s ability, through comprehensive surveillance, to prevent outside inquiry into the exercise of power engenders a terrifying intellectual and moral sclerosis within the ruling elite. Absurd notions—such as implanting “democracy” in Baghdad by force in order to spread it across the region, or terrorizing radical Islam into submission—are no longer checked by reality, experience, or factually grounded debate. Data and facts that do not fit into the whimsical theories of our political elites, generals, and intelligence chiefs are ignored and hidden from public view. The citizenry cannot take self-corrective measures because it is denied factual information. And when the unchallenged elites soon come to believe their own lies, the state descends into dysfunction, terror, and burlesque.

  Totalitarian states use propaganda to orchestrate historical amnesia, a state-induced stupidity. The object is to make sure the populace does not remember what it means to be free. And once a population does not remember what it means to be free, it does not react when freedom is stripped from it.

  The tightening of the corporate totalitarian noose would have continued without legal or public debate if Edward Snowden had not jolted the nation awake. Snowden revealed through his leaks of NSA documents evidence of what former vice president Al Gore said “appears to be crimes against the US Constitution.”20 Snowden’s revelations triggered, for the first time, a genuine discussion about mass surveillance. Two judges finally passed rulings on the NSA’s surveillance program. US District Judge Richard J. Leon, in December 2013, ruled that the bulk collection of metadata probably violates the Fourth Amendment (relating to unreasonable searches and seizures) and is “almost Orwellian” in its sweep.21 The Justice Department appealed Judge Leon’s ruling. US District Judge William Pauley, later that month, reversed Judge Leon’s decision to rule that the National Security Agency’s bulk collection of telephone records is legal.22 A presidential panel criticized the agency’s blanket surveillance and called for reform.

  A New York Times editorial on January 1, 2014, argued that Snowden’s revelations had done the country “a great service” and called for “some form of clemency that would allow him to return home.” The editorial listed some of the crimes of government that Snowden had exposed:

  • The NSA broke federal privacy laws, or exceeded its authority, thousands of times per year, according to the agency’s own internal auditor.23

  • The agency broke into the communications links of major data centers around the world and spied on hundreds of millions of user accounts, infuriating the Internet companies that own the centers.24 Many of those companies are now scrambling to install systems that the NSA cannot yet penetrate.

  • The NSA systematically undermined the basic encryption systems of the Internet, making it impossible to know whether sensitive banking and medical data is truly private and damaging businesses that depend on this trust.25

  • James Clapper Jr., the director of national intelligence, lied to Congress when he testified in March 2013 that the NSA was not collecting data on millions of Americans.26 (There has been no discussion of punishment for that lie.)

  • The Foreign Intelligence Surveillance Court rebuked the NSA for repeatedly providing misleading information about its surveillance practices, according to a ruling made public because of the Snowden documents.27 One of the practices violated the Constitution, according to the chief judge of the court.

  • A federal district judge ruled in December 2013 that the phone records collection program probably violates the Fourth Amendment of the Constitution.28 He called the program “almost Orwellian” and said there was no evidence that it had stopped any imminent act of terror.29

  Before Snowden, we were not even able to get a hearing in court. Some members of Congress—although that body authorized the Patriot Act and its Section 215, which ostensibly permits this wholesale surveillance of the public—expressed dismay at the extent of the NSA’s activities and the weakness of its promised reforms. Maybe they are lying. Maybe they are not. Maybe reforms will produce improvements, or maybe, as appears to be happening, they will be merely cosmetic. But before Snowden, we had nothing. Snowden’s revelations made us conscious.

  To rebel requires that elusive virtue that Snowden exemplifies and that Melville’s Starbuck lacks—moral courage. I have been to war. I have seen physical courage. But this kind of courage is not moral courage. Very few of even the bravest warriors have moral courage. The person with moral courage defies the crowd, stands up as a solitary individual, shuns the intoxicating embrace of comradeship, and is disobedient to authority, even at the risk of his or her life, for a higher principle. And with moral courage comes persecution.

  The US Army pilot Hugh Thompson had moral courage. He landed his helicopter between a platoon of US soldiers and te
n terrified Vietnamese civilians during the My Lai massacre in 1968. He ordered his gunner to fire his M60 machine gun on the advancing US soldiers if they began to shoot the villagers. And for this act of moral courage, Thompson was hounded and reviled. Moral courage always looks like this. It is always defined by the state as treason—the Army attempted to cover up the massacre and threatened to court-martial Thompson. Moral courage is the courage to act and to speak the truth. Thompson had it. Daniel Ellsberg had it. Martin Luther King Jr. had it. What those in authority once said about them, they say today about Snowden.

  We who have been fighting against mass state surveillance for years have made no headway by appealing to the traditional centers of power. It was only after Snowden methodically leaked documents disclosing the crimes committed by the state that genuine public debate began. Elected officials, for the first time, promised reform. None of this would have happened—none of it—without Snowden.

  His critics argue that he could have reformed the system from the inside. He could have gone to his superiors or Congress or the courts. But Snowden had numerous examples—including the persecution of the NSA whistle-blower Thomas Drake, who originally tried to go through so-called proper channels—to remind him that working within the system is fatal. Drake attempted to alert Congress and his superiors about waste, mismanagement, and possible constitutional violations at the NSA but was repeatedly rebuffed. He eventually provided information—none of it classified—to a reporter at the Baltimore Sun who was investigating a bungled $1.2 billion surveillance program called “Trailblazer.” Drake was charged by the government under the Espionage Act and faced up to thirty-five years’ imprisonment. When the government’s case collapsed in court, Drake was able to plead to one misdemeanor count for exceeding authorized use of a computer.30