October 14, 2015
Crisis: Authoritarian USA, Lawsuit, Labour, Australia, Citizens United
 "They who can give up essential 
   liberty to obtain a little temporary
   safety, deserve neither liberty
   nor safety."
   -- Benjamin Franklin
   "All governments lie and nothing
   they say should be believed.
   -- I.F. Stone
   "Power tends to corrupt, and   
   absolute power corrupts
   absolutely. Great men are        
   almost always bad men."
   -- Lord Acton

Prev- crisis -Next


Post-Constitutional America: What We’ve Lost Since 9/11
2. Court Reinstates Lawsuit Against NYPD Muslim Spying,
     Citing History of Racist Scares

3. Labour must unify around the anti-austerity message
4. Edward Snowden and Allies Issue Warnings as Australia
     Unleashes Mass Spying

Citizens United Is Headed for the California Ballot: Here’s
     What You Need to Know

This is a Nederlog of Wednesday, October 14, 2015.

This is a crisis blog. There are 5 sections with 5 dotted links: Item 1 is about a good article by Peter Van Buren (I agree with the key passages, though I think
the format is a bit simpleminded, but then again this is a mere article and not a book); item 2 is about a decision by the Third Circuit Court of Appeals that is quite good (and a piece of Good News); item 3 is about the present British Labour Party (I more or less agree, although think Labour should unite on
a "for more equality" message, rather than "anti-austerity": it is clearer and positive); item 4 is about Australia that is since yesterday an authoritarian state where no one (except the smart and the rich) has any privacy left; and item 5 is about a quite good article (the first of two) about the Citizen United decision (by a former judge and attorney).

Also, I have no news about yesterday's debate between the American Democrats' candidates, because I found no good article about it (and all I found on The Guardian was a lousy "life index" - of tweets).

1. Post-Constitutional America: What We’ve Lost Since 9/11

The first item today is an article by Peter Van Buren (<- Wikipedia) on Common Dreams (and originally on We Meant Well):

  • Post-Constitutional America: What We’ve Lost Since 9/11
This starts as follows:

Ed Snowden is right. We have lost too many of our freedoms. What the hell happened?

The United States has entered its third great era is what happened. The first, starting from the colonists’ arrival, saw the principles of the Enlightenment used to push back the abuses of an imperial government and create the Constitution and the Bill of Rights. The next two hundred some years, imperfect as they were, saw those principles progress, putting into practice what an evolving government of the people might look like.

We are now wading in the shallow waters of the third era, Post-Constitutional America, a time when our government is abandoning the basic ideas that saw our nation through centuries of challenges. Those ideas– enshrined in the Bill of Rights– are disarmingly concise, the haiku of a People’s government. Deeper, darker waters lay in front of us, and we are drawn down into them. The king, jealous of the People’s power, wants some back.

Well... it is one idea to make history easier to comprehend: Divide it in temporal slices and claim the slices are determined by how they relate to certain principles, which are here essentially the Bill of Rights. I think the idea is helpful and indeed difficult to avoid in telling a history of several centuries - you have to somehow segment that history into bits that are related to some more comprehensive principles - but it's bound to be a bit simpleminded, in many cases.

Here the Bill of Rights are used, and the history of the United States is split into three parts. The first is this, and took a mere 24 years:

Pre-Constitutional America: 1765-1789

History turns out to be everything that matters. America in its Pre-Constitutional days may seem familiar to even casual readers of current events. We lived under the control of a king, a powerful executive who was beholden only to the rich landowners and nobles who supported him. The king’s purpose was simple: to use his power over Americans to draw the maximum financial gain out of the colony, suppressing dissent in service to the goal and to maintain his own power.

This is a simplification, but (i) there is more in the article and (ii) a lot of history is simplifying. What I doubt somewhat is that these days, which are more than 225 years ago, "may seem familiar to even casual readers of current events".

To be sure, I also do not really know what "casual readers of current events" are supposed to be, but it so happens that I know a fair amount of the 18th Century,
and especially of England in that time, and this shows me that there is a whole lot to know for a somewhat proper understanding of the 18th Century (much of which is quite interesting, I think) that "casual readers of current events" just do not know and have no ideas of.

But OK. Here is the next period, of 212 years:

Never Again: 1789 – 9/11/2001

There was no mistaking it: the Bill of Rights was written to make sure that America’s new government would not be the old government of a king. Each important amendment spoke directly to a specific offense committed by the king. The Bill would protect Americans from their government. The rights enumerated in the Bill were not granted by the government, but already present within the People. The Bill said what the government could not take away. Never again, the Founders said.

Again a whole lot more happened, but this does more or less circumscribe what the Bill of Rights are: Individual personal rights that an individual has because he or she (since 1920, I think (!)) was born (in the USA) and that no government could ever take away.

And here is the third bit: The last 14 years or so (actually Bush Jr. wasn't elected: he was nominated by the Supreme Court after a falsification of votes by his brother Jeb in Florida, but OK...):

Post-Constitutional America: 9/12/2001 to the Present

Then, one sharp, blue September 11 morning, everything changed, and our Post-Constitutional era began.

You know the story: NSA spying, drone killing, Guantanamo, arbitrary arrests and police violence. And for every short-hand example, there are many other motes of shame you have probably thought of as you read. If not, open today’s newspaper or Google “NSA” and they’ll most likely be there. Remember too that Manning, Snowden and other whistleblowers were able to pass on only relatively small portions of the information the government is trying to hide, and we haven’t even seen all of the Snowden documents yet.

Actually, my guess is that this was prepared (e.g. the Patriot Act seems to have been written mostly before 9/11) but indeed this is one of the many things about 9/11 that there is not much evidence about.

But what I quite agree with is (1) Snowden and Manning only got a small part of all the information there is to get, and (2) only a small part of what they got was published - for indeed the information they did gather was gathered mostly from secret services, that were and are very secret and are and were very protected.

Here is the first key passage of the article, with which I agree:

But in Constitutional America, there was a standard above the law, the Constitution itself. The actions of the executive and the laws passed by Congress were only legal when they did not conflict with the underlying principles of our democracy.

The accepted history of our descent into a Post-Constitutional state is following 9/11, evil people under the leadership of Dick Cheney, with the tacit support of a dunce like George W. Bush, pushed through legally-lite measures to allow kidnapping, torture, imprisonment and indefinite detention, all direct contraventions of the Bill of Rights. Obama, elected on what are now seen as a series of false promises to roll back the worst of the Bush era-crimes, went full-in for the same or more. That’s the common narrative, and it is mostly true.

I completely agree with the first paragraph, which is also why I - from the beginning, over 10 years ago (readers of Dutch may consider 9/11/2004) - have insisted that many of the supposedly "legally lite measures to allow kidnapping, torture, imprisonment and indefinite detention" are in fact illegal, as Peter Van Buren indeed also - and quite correctly - adds, for indeed they were "all direct contraventions of the Bill of Rights". And the Bill of Rights cannot be deregulated out of existence.
To return to the set of rules, laws and beliefs that we still claim in high school civics classes define us, the Bill of Rights, means first deciding we will no longer agree to have those rights taken away from us. No, no, not taken away– given away, too easily. Too many Americans, compelled by fear and assured by propaganda, want the government to expand its powers further, embracing dumb-headly the idea that freedom is in conflict with security.
But that is indeed a major part of the problem: That "[t]oo many Americans, compelled by fear and assured by propaganda, want the government to expand its powers further". There is in fact only a minority of the present day Americans who do have a reasonable grasp of the Bill of Rights, the Constitution, the practice of the law, and the principles of government. (This is also while 60% of adult Americans believe in the literal truth of the Ark of Noah. I know this is formally irrelevant, but it does give some background.)

And here is the second key passage of the article, with which I also agree - and I bolded the passage I mean:

At issue in post-Constitutional America is not that all rights for all people all the time will disappear (though privacy seems on the chopping block.) It is that the government now decides when, where and how the rights which were said to be inalienable still apply. Those decisions will likely be made in secret and will be enforced without recourse. You’ll never know who is next.

We are the first to see what is post-Constitutional America, and perhaps the last who might stop it.

Precisely - and that is also why I have several times referred to "the supermen and superwomen" who now are in the government: They made themselves into the arbitrators of the laws and its interpretations, and indeed at the same time have also decided that many of their decisions remain classified and secret, and may come with court orders not to discuss anything with anyone except a lawyer.

That is extremely authoritarian and very anti-democratic, and that is also why the present generation of Americans is the last to stop it, for they find the  authoritarian government and the NSA completely against them - and if the NSA is allowed to go on, soon there will be hardly any American who will dare to protest (and those who might do so, soon risk disappearing before doing so, and indeed without any trace: Your government knows everything about you, and will take steps to shut you up if it disagrees with you).
2. Court Reinstates Lawsuit Against NYPD Muslim Spying, Citing History of Racist Scares

The next article today is by Murtaza Hussain on The Intercept:
  • Court Reinstates Lawsuit Against NYPD Muslim Spying, Citing History of Racist Scares

This starts as follows:

In a stunning legal decision issued today, the Third Circuit Court of Appeals ruled that Muslim-Americans who had been subjected to blanket mass-surveillance by the NYPD Intelligence Division have grounds to sue the department for discrimination. The ruling reverses a 2014 decision by the United States District Court of New Jersey that found the plaintiffs had insufficient legal standing to challenge the surveillance against them, and that the blanket surveillance of Muslim communities itself was not evidence of bias.
I say - a piece of Good News. To start with, here is some background:
In 2011, a landmark investigation by the Associated Press revealed that the NYPD’s Intelligence Division had been conducting highly-invasive, suspicion-less surveillance on Muslim-Americans living in and around the New York area. This surveillance, which lasted for years and which involved mapping out Muslim neighborhoods and businesses, building databases on information on ordinary people, and using undercover operatives to infiltrate entire communities, ultimately failed to turn up even one lead related to terrorism.
And this is the ruling, which is good, strong and mentions the right backgrounds:

In its ruling, the court took pains to position the mass-surveillance of Muslim-Americans within a broader historical context of misguided suspicion and hostility towards minority communities in the United States. In a strongly worded opinion, the court wrote that, “We have been down similar roads before. Jewish-Americans during the Red Scare, African-Americans during the Civil Rights Movement, and Japanese-Americans during World War II.” Citing another decision, it added that “we are left to wonder why we cannot see with foresight what we see so clearly with hindsight — that ‘loyalty is a matter of the heart and mind, not race, creed, or color.’”

Quite so - and incidentally, the reversed decision, that found in 2014 that "the plaintiffs had insufficient legal standing to challenge the surveillance against them" was based on an undemocratic authoritarian interpretation of the law, that says that what the government decides to keep secret cannot be a source of legal complaint.

On the contrary: That the government decides to keep secret mass surveillance is a ground for serious complaint, for a government that does so is no longer a real democracy, and has assumed itself as the arbiter of the laws, instead of its executioner. [1]

3. Labour must unify around the anti-austerity message

The next article today is by Owen Jones on The Guardian:
  • Labour must unify around the anti-austerity message
This starts as follows:
It is George Osborne’s failure that makes him a politician Labour should learn from. A deficit he never came close to clearing in one parliament as he had solemnly pledged; more debt than the sum racked up by all Labour governments combined; a plunge in workers’ pay with no precedent since Charles Dickens passed away; and reducing Britain to the sick man of Europe when it comes to productivity: and yet – look how he thrives, his abject failures transformed into against-all-odds successes.
Yes, but the reason a Tory liar like Osborne thrives is that the greatest part of the English press supports his lies and does not investigate them seriously. And that is itself a serious problem, for there is no real democracy without a really free and extensive press.

Here are some backgrounds:
For those perplexed about what is going on within Labour, it’s worth remembering the unique nature of what has taken place in British politics. In normal times, a new party leader has years of ambition and preparation behind them, a professionalised team in place, experience of being a shadow minister, a significant support base in the parliamentary party, years of dealing with the media, and a network of sympathetic journalists. None of this applies in the current situation.
These are all true. But what is considerably more serious in my opinion is this:
Polling suggests a massive part of the electorate had little idea what Labour stood for at the last election. Ironically, the party now has an ideologically defined leader, but the danger is the same for a different reason – this time because so many frontbenchers are pushing their individual policy lines.
If that is correct (and I guess it is) then that "massive part of the electorate" simply did not do what they are supposed to do: At least find out the basic ideas
of the parties that contend for your vote.

Also, the fault lies predominantly with the electorate: The papers may be rotten, ideological, and mostly Tory or Tory-lite (aka Blatcherist) but anyone with an internet computer can find out the relevant facts, indeed within a few hours at most (with some common sense).

There is also this, which is pretty saddening:
The most Googled question during one of the leaders’ debates was: “What is austerity?” It is an abstract concept to many voters.
As far as I am concerned, this is a fair question for those who are 15 or younger, but not for others. But then this was the most common question - while Owen Jones's title says he wants to unify Labour "around the anti-austerity message".

I don't say Owen Jones is mistaken, though indeed I think, also in view of the question, that "for more equality" is better, but I wonder how many internet users would pose the question "What is anti?" (and not because they are necessarily stupid, but because they got a bad education).

Owen Jones ends with a recital of some facts:
The number of low-paid households penalised is far greater than the number hit by the pernicious bedroom tax. The number of workers driven below the living wage has risen in this parliament – so much for shifting to a “high-wage economy” – and is expected to surge over the next few years. The work penalty fatally undermines the Tories’ laughable claim to be the party of working people.
I agree - but what part of the current English press reports these facts more or less as stated? I don't know, and this is a question, but I think I am safe in assuming it is only a minority.

And that is also part of the problem for Corbyn's Labour: Most of the English press and media are heavily ideological, and most of these ideologies are either plain Tory or the Tory-lite versions of the liberal democrats or of the Blairite Blatcherists. [2]

4. Edward Snowden and Allies Issue Warnings as Australia Unleashes Mass Spying

The next article today is by Nadia Prupis on Truthdig (and originally on Common Dreams):
  • Edward Snowden and Allies Issue Warnings as Australia Unleashes Mass Spying
This starts as follows:

As new controversial metadata laws went into effect in Australia on Tuesday, whistleblower Edward Snowden took to Twitter to warn the country’s residents about the privacy violations that accompany the legislation.

The new laws require Australian telecommunications companies and Internet service providers (ISPs) to store user metadata—such as phone records and Internet Protocol (IP) addresses—for two years, during which time it may be accessed by law enforcement without a warrant. Civil liberties and Internet freedom groups have criticized the laws as invasive and unconstitutional.

“Beginning today, if you are Australian, everything you do online is being tracked, stored, and retained for 2 years,” Snowden wrote, linking to a campaign by advocacy group GetUp! that gave instructions on how to circumvent the data retention scheme.

That is, the Australian government went the same authoritarian way as the American government, indeed even up to (implicitly) defining the same classes of people: The supermen who belong to the government and the secret services, who know all and "have the right to know all"; the rich citizens who can opt out in various ways of being surveilled; and the ordinary majority who simply have to accept that all their privacy is now plundered for the amusements or use by their government and its secret services.

Here is a survey of the things telecoms are supposed to maintain:

According to the Australian Privacy Foundation, an Internet advocacy group and subsidiary of Privacy International, the laws require telecoms to maintain, at minimum:

  • IP addresses for each device or connection to the Internet (including from computers, tablets, phones, etc.)
  • Time and duration of Internet connections
  • Volume of uploads and downloads
  • Recipients of emails, along with date and time sent (Australian ISP emails only)
  • Size of email attachments (Australian ISP emails only)
  • Phone numbers called (even where the receiving party did not answer) on all landlines (including VoIP) and mobiles, along with the date and time of the call
  • SMSs sent, along with the date and time of the SMS
  • Rough location of user at time of call or SMS
This is the minimum the Gestapo also would have wanted, had they had computers. And speaking of Germans, there is this:
A similar metadata dragnet attempted in Germany was deemed unconstitutional in 2010. In 2011, the German Parliament’s Working Group on Data Retention published a study concluding that the metadata dragnet had resulted in a .006 percent increase in crime clearance rates—a “marginal” boost that showed “the relationship between ends and means is disproportionate.”
Incidentally, "a .006 percent" = a 6/100,000 part. That is far below normal standards of statistical significance, but indeed I have never believed the
attacks on privacy had anything to do with preserving the ordinary user's security: It always was about breaking their personal privacy and giving the government the full authoritarian power of the terrorist state.

Finally, there is this:

To counter the invasive new laws, GetUp! and other civil liberties groups recommend users install privacy software on their phones and computers, such as encrypted messaging apps, secure browsers like Tor or a Virtual Private Network (VPN).

“Go dark against data retention,” the group states. “Absurdly, the flawed legislation leaves open numerous loopholes, which can be used to evade the data retention. This means the data retention dragnet will capture the data of innocent Australians and cost millions of dollars, while allowing those who don’t want to be caught to remain hidden.”

I agree, but thus will be feasible only for a few percents. The rest has simply lost their privacy and therewith their individual freedom: Their individual freedom
is now in the hands of the secret services, that know everything.

5. Citizens United Is Headed for the California Ballot: Here’s What You Need to Know

The final article today is by Bill Blum on Truthdig:
  • Citizens United Is Headed for the California Ballot: Here’s What You Need to Know
This starts as follows and is about a rather interesting idea:

Within the next 90 days, the California Supreme Court will decide if a referendum should be placed on the November 2016 ballot asking voters whether they want to amend the federal Constitution to overturn the U.S. Supreme Court’s dreaded Citizens United ruling. The state panel heard oral arguments on the issue Oct. 6 and, according to press reports, is poised to green-light the measure, formally known as Proposition 49, just in time for the presidential election.

I say - and here is Proposition 49:

Proposition 49 poses a lengthy but ultimately straightforward question:

“Shall the Congress of the United States propose, and the California Legislature ratify, an amendment or amendments to the United States Constitution to overturn Citizens United v. Federal Election Commission (2010) 558 U.S. 310, and other applicable judicial precedents, to allow the full regulation or limitation of campaign contributions and spending, to ensure that all citizens, regardless of wealth, may express their views to one another, and to make clear that the rights protected by the United States Constitution are the rights of natural persons only?”

I will take it you understood this. First, there is the following limitation:

The proposition is, of course, only advisory in nature. California voters can no more nullify the U.S. Supreme Court’s seminal opinion on campaign finance than Rowan County, Ky., Clerk Kim Davis can overturn the high tribunal’s landmark opinion on same-sex marriage. Still, the referendum will serve to galvanize protests and further action against a broken political process that Fred Wertheimer, the president of the public policy organization Democracy 21, has called a “system of legalized bribery.”

But that - to galvanize protests and further action - is quite possible and indeed should be done given the extremely bad very authoritarian Citizen United decision by the Supreme Court, that also much widened the reach and the badness of the decision, on purpose, no doubt.

Next, there follow 6 sections of which I give only the titles, but that are quite good:

1. The Citizens United case began as a modest election law
     challenge that the Supreme Court dramatically
2. Citizens United didn’t create the doctrine of corporate   
     personhood, but the decision applied the concept to
     political speech.
3. The Citizens United decision wasn’t needed to prevent
     government censorship of speech.
4. Citizens United extended the equation of money and
     speech and radically restricted the concept of political
5. Citizens United didn’t establish super PACs but it gave
     rise to them and opened the door to dark money.
6. The Supreme Court has established double standards for
     corporations and unions.

To read the text, apart from these titles, you have to click the last dotted link. I think the text is quite interesting, and it is by a former judge and attorney. And I do quote the last section in full:

7. Can anything be done?

In a Bloomberg Politics national poll released last month, “78 percent of those responding said the Citizens United ruling should be overturned, compared with 17 percent who called it a good decision.”

The American people may be tired, confused and beaten down, but they aren’t stupid when it comes to the role of money in politics. They know the system is corrupt and rigged on both sides of the political aisle, and they want the system changed. The critical question is how. Apart from symbolic gestures like Proposition 49, what else can we do?

I will be interested to read the second part of this article, for I liked the present part and recommend its full reading.


[1] I quote Aristotle once again (and see June 10, 2013):
It is more proper that law should govern than any one of the citizens: upon the same principle, if it is advantageous to place the supreme power in some particular persons, they should be appointed to be only guardians, and the servants of the laws.
That is: The government should not interpret nor initiate the laws: All it should do is maintain the laws. The interpretation (apart from common sense) and initiation of laws is for other citizens, and eventually - if agreed upon, and elected as laws - for later governments to practice.

[2] Incidentally, I happen to very much dislike Tony Blaire, after having seen him first on television in 1994: He seemed to me purely hypocritical then, and a great and deliberate falsifier. I'd say that I was quite correct.

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