Note: This is the fourth of a six-part series.
Part 1, Part 2, Part 3.

Post-9/11 Constitutional Violations to Our First Amendment Rights

Organizations like NCAC, the Jefferson Center, FEN and others courageously defend our First Amendment rights especially under attack post-September 11, 2001. Six weeks later, the USA Patriot Act began assaulting those rights (and Fourth, Fifth, Sixth and Eighth Amendment ones too) all of which were well eroded already.

Most disturbing in the law is Section 215 under which federal investigators may seek a search warrant relating to an ongoing terrorism or intelligence investigation without meeting probable cause standards for it. It can then be used for intrusive unconstitutional searches without our knowledge for "any tangible things" about our speech-related activities in libraries, bookstores, banks and other repositories of our financial records, places of worship, medical provider records, internet use records, floppy disks, computer hard drives and other documents or places with records or information on our speech-related activities.

Section 505 of the Patriot Act is about as intrusive as Section 215 as it authorizes administrative subpoena targeting of bank and other financial records, credit reports, telephone and e-mail logs and more by use of a National Security Letter (NSL). Again, no probable cause standard is needed, and those receiving NSLs are gagged from disclosing its issuance so those targeted never know. Unlike Section 215, however, NSLs require no judicial oversight, only that they relate, without corroborating evidence, to an ongoing terrorism investigation on federal investigators' say alone.

A scant two decades longer than Orwell imagined, high tech surveillance makes it possible for modern-day thought control police to watch and know our activities, control our lives, and, if they wish, make us believe and accept as true "War is Peace, Freedom is Slavery, (and) Ignorance is Strength" under an omnipotent state using its will to subvert ours. Where there's a "signing statement," there's a way to do it on top of complicit congressional pre and post-9/11 legislation passed to make it simple enough already.

George Bush is a serial abuser of the presidential practice of attaching "signing statements" to laws passed although nothing in the Constitution allows it. He's done it around 800 times, more than all past presidents combined, using his usurped "Unitary Executive" power to claim the law is what he says it is. He issued one "statement" shortly after 9/11 authorizing the National Security Agency (NSA) to eavesdrop, for the first time ever, without legally required Foreign Intelligence Surveillance Act (FISA) court warrants on international phone and e-mail communications originating from or received within the US.

Then following the passage of the Postal Accountability Enhancement Act of 2006, he issued another "signing statement" giving himself broad authority to order opening US citizens' mail without a warrant. In so doing, he violated US law and regulations including FISA permitting warrantless surveillance only for foreign intelligence collection between "foreign powers" for up to one year. With a warrant, FISA courts nearly always approve requests allowing surveillance and physical searches of US citizens' "premises, information, material, or property used exclusively by" a foreign power or by an individual thought to be an "agent of a foreign power."

Never satisfied, the Bush administration now wants expanded warrantless spying authority within and outside the country requesting Congress amend the FISA law legalizing what it's already doing anyway, law or no law. On May 2, director of national intelligence, Mike McConnell, testified before the Senate Intelligence Committee claiming the president may legally authorize warrantless surveillance (under the Constitution's Article II making him commander-in-chief) but wants FISA amended so it can do it without challenge it'll ignore anyway. It also wants to fix and modernize what McConnell calls "communication gaps" in intelligence gathering including "monitoring" the internet, cell phones and other new technology as well as "transit traffic" international phone calls and emails.

Amendments requested would further erode laws protecting against illegal searches and seizures and our First Amendment rights connected to them. They would also allow surveillance of any non-citizens in the country "reasonably expected to possess, control, transmit, or receive foreign intelligence information while such a person is in the United States," even if they're not a target of an investigation. In addition the administration wants legal cover to spy on anyone it claims engages in activities related to buying or developing WMDs, even with no evidence to prove it. Bottom line: the Bush administration wants Congress to give it near limitless authority to spy on anyone in any way in the name of national security, and sadly, rhetoric aside, this complicit Congress will likely give in, further eroding what little freedom we still have.

(Article Continues Below)

Post-9-11, other unconstitutional speech-related monitoring began as well including John Ashcroft's short-lived Terrorism Information and Prevention System (Operation TIPS). The idea was to use civilian informers like postal employees to report "unusual" neighborhood activities, police-state style. The scheme flopped when the postal service refused to be spies. Then there was the Pentagon's Total Information Awareness (TIA) renamed Terrorism Information Awareness to monitor anything about anyone under the spurious cover of it relating to "terrorism." TIA came under considerable congressional flack but some or all its activities continue under new names relating to other Pentagon projects and initiatives so illegal military spying continues unabated.

One program is called the Threat and Local Observation Notice (TALON) to conduct domestic intelligence by amassing a huge data base, again spuriously related to "terrorism." It focuses on war protesters targeted by police state monitoring of their constitutional right to freely oppose the nation's illegal wars of aggression, meaning in Pentagon-think they're threats to national security in the age of George Bush. Now the Pentagon has second thoughts after drawing flack for its illegal intrusions against peace activists. Under secretary of defense, James Clapper, announced through his spokesperson in late April TALON's results have been disappointing and doesn't "merit (being) continued (as) the program (is) currently constituted...in the light of its image in Congress and the media."

What he's likely saying is TALON's activities will be rebranded and continued, the same way all improperly intrusive domestic spying activities drawing flack are carried out in impressive Orwellian style. What he's not saying is all Pentagon domestic spying/surveillance programs violate the Posse Comitatus Act's prohibitions against them. However, last year's Public Law 109-364 (HR 5122 - Defense Authorization Act) revised the 1807 Insurrection Act and 1878 Posse Comitatus allowing the president illegal authority to give the military free reign on claims of a public emergency or that old standby "national security" in the "war on terror." That includes monitoring freely expressed speech and cracking down on it if so ordered.

Scott Horton reports on another Bush administration assault on free expression in his April Harper's magazine article titled "The Plot Against the First Amendment." In it he notes an important case going to trial in June in Northern Virginia "that will mark a first step in a plan to silence press coverage of (whatever the administration calls) essential national security issues." It would ban exposing policies like secret renditioning captives to torture-prisons to be held without charge, brutalized, denied due process, tried in military tribunals, and disposed of as the administration wishes. The scheme to pull this off is the work of disgraced Attorney General Alberto Gonzales and his deputy Paul J. McNulty, the central figures in a "growing scandal over the politicization of the prosecution process."

Inspiring Gonzales' scheme is Britain's Official Secrets Act, the latest 1989 version of which is quite detailed but is intended overall to protect against revealing information the UK government claims relates to "national security." The act makes it crime for designated British subjects (in some cases all of them) under its 16 sections to do whatever that provision prohibits including disclosing what the state wants kept secret. Gonzales' interest is to devise a scheme based on the UK model to keep print publications and broadcasters from reporting information Washington claims is secret and thus criminal to disclose. In other words, the idea is to silence the media when government wants it silenced, as if it wasn't already secretive enough, except when it's dutifully trumpeting state and corporate-friendly propaganda, lies and distortion not good enough for Gonzales wanting more restrictions.

Horton reports Gonzales sees this scheme "as a panacea for his problems....Then you can torture and abuse prisoners....without fear of political repercussions." So they won't have to "close down Guantanamo (just) Close down the press." Horton explains further Gonzales wanted to propose the idea in end-run fashion with no official secrets language headlined he'd never even get Republican allies to adopt out of fear alone. So his idea was to "spin it out of whole cloth (by) reconstru(ing) the (repressive) Espionage Act of 1917" including in new legislation "the essence of the UK Official Secrets Act and try getting this version "ratified in the Bush administration's 'vest pocket' judicial districts (of) the Eastern District of Virginia and the Fourth Circuit."

The sordid tale continues, but it's coming to a head in a June Northern Virginia trial the outcome of which will indicate whether the administration can criminalize legal acts of journalism on matters it wants kept secret. If it can, Horton says what all free press advocates would agree on. It would be a "dream world for Karl Rove and Alberto Gonzales (and) a nightmare for the rest of us."

In addition, this scheme and all other Bush administration assaults on First Amendment freedoms make a sham out of the president's galling hypocrisy May 3 on World Press Freedom Day. Agence France-Presse (AFP) reported he denounced (with effrontery) a host of other countries for their lack of press freedom including China, Cuba, Iran, Syria, Russia, Belarus and Venezuela (all US targets for daring to place their own sovereignty above ours) saying "The United States values freedom of the press as one of the most fundamental political rights and as a necessary component of free societies" except whenever the press anywhere dares criticize his wars of aggression and other repressive, unjust and illegal policies.

That's the way things are by the rules of George Bush's Global War on Terror (GWOT) rebranded The Long War about to undergo another rebranding because the current name denotes the wrong message of endless wars and occupation the public is tiring of. The name may change, but the mission won't so long as George Bush remains president. According to him, opposition to his wars gives aid and comfort to the nation's enemies that's tantamount to treason. So is dissent and any criticism of his agenda by his reasoning but not according to the law of the land.

Article 3, Section 3 of the Constitution defines the strict limits of what George Bush makes light of. It states: "Treason against the United States, shall consist only in levying War against them, or in adhering to their enemies, giving them Aid and Comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court." Crimes of treason include:

-- armed insurrection or rebellion;

-- mutiny or unlawfully taking over command of the US government or military;

-- sabotage including damaging or tampering with national defense material;

-- sedition intended to incite rebellion;

-- subversion defined as free speech gone too far by blatantly transmitting false information;

-- Syndicalism that's an act of organizing a political party or group advocating the violent overthrow of the government;

-- Terrorism defined as the systematic use of violence or threats of violence to intimidate or coerce the government or whole societies by targeting innocent noncombatants.

Speaking for the president, an unnamed White House spokesman said in January, 2003 George Bush "considers this nation to be at war, and, as such, considers any opposition to his policies to be no less than an act of treason" although he had no legal basis to say it, and publicly expressed opposition to government policies is not an act of treason as the Constitution defines it above. Nonetheless, according to Bush-think: "Either you are with us, or you are with the terrorists," and by implication are guilty of treason. According to Bush, if a US citizen or foreign state "continues to harbor or support terrorism (it) will be regarded by the United States as a hostile power," meaning, justified or not, line up behind George Bush, or else.

It's a dangerous and frightening time in America today as the nation hurtles toward tyranny, and our right to speak out and protest continues being challenged and undermined. That makes the battle for the last frontier of press freedom crucial to preserving our fragile democracy now somewhere between life support and the crematorium.

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Stephen Lendman [send him email] lives in Chicago, and maintains a blog at http://sjlendman.blogspot.com