The Magician’s Con: Renewing FISA and the NDAA Under Cover of the Fiscal Cliff Debates

by John W. Whitehead

Recently by John W. Whitehead: Government Violence: The Missing Link in the Gun Control Debate

“If the broad light of day could be let in upon men’s actions, it would purify them as the sun disinfects.” ~ Supreme Court Justice Louis Brandeis

What characterizes American government today is not so much dysfunctional politics as it is ruthlessly contrived governance carried out behind the entertaining, distracting and disingenuous curtain of political theater. And what political theater it is, diabolically Shakespearean at times, full of sound and fury, yet in the end, signifying nothing.

Played out on the national stage and eagerly broadcast to a captive audience by media sponsors, this farcical exercise in political theater can, at times, seem riveting, life-changing and suspenseful, even for those who know better. Week after week, the script changes – the presidential election, the budget crisis, the fiscal cliff, the Benghazi hearings, the gun control debate – each new script following on the heels of the last, never any let-up, never any relief from the constant melodrama.

The players come and go, the protagonists and antagonists trade places, and the audience members are forgiving to a fault, quick to forget past mistakes and move on to the next spectacle. All the while, a different kind of drama is unfolding in the dark backstage, hidden from view by the heavy curtain, the elaborate stage sets, colored lights and parading actors.

Such that it is, the realm of political theater with all of its drama, vitriol and scripted theatrics is what passes for “transparent” government today, with elected officials, entrusted to act in the best interests of their constituents, routinely performing for their audiences and playing up to the cameras, while doing very little to move the country forward.

All the while, behind the footlights, those who really run the show are putting into place policies which erode our freedoms and undermine our attempts at contributing to the workings of our government, leaving us none the wiser and bereft of any opportunity to voice our discontent or engage in any kind of discourse until it’s too late. It’s the oldest con game in the books, the magician’s sleight of hand that keeps you focused on the shell game in front of you while your wallet is being picked clean by ruffians in your midst.

President Obama, no different from his predecessors, is particularly well versed in how to use the theater of politics to his advantage. Consider that amidst the cacophony of the fiscal cliff debates, the president signed into law two pieces of legislation, the Foreign Intelligence Surveillance Act Amendments Act (FISA) and the National Defense Authorization Act of 2013 (NDAA), which further erode our most basic constitutional rights by reauthorizing sweeping police powers to be used by the federal government.

FISA allows the federal government to spy on Americans who communicate with people overseas, whether they are journalists, family members, or business associates, while the NDAA reauthorizes the military’s ability to indefinitely detain American citizens, a provision which first reared its head in the 2012 NDAA.

While the invasive powers bestowed upon the federal government by FISA and the NDAA should be cause for alarm, they have become part of the unchallenged post-9/11 paradigm that disguises itself as representative government today. This matter-of-fact, all-in-a-day’s work erosion of our freedoms is no less appalling than the routine, relatively uncontested renewal of legislation, passed without debate or question year after year, which flies in the face of every fundamental principle of individual liberty on which this nation was founded. Such is the political playbook being used to chart the nation’s course these days.

President Obama’s decision to sign the NDAA, quietly and without much fanfare, while the fiscal cliff debate took front stage is a perfect example of political theater at its finest. The NDAA establishes a colossal $633 billion budget for the military at a time when the nation is drowning in debt, the deficit is skyrocketing, our military empire is overextended, and America is allegedly ratcheting down its presence in the Middle East.

Despite a late November threat to veto the NDAA 2013, Obama signed it into law while on vacation with his family in Hawaii. Similarly, the year before, despite his personal objection to the indefinite detention of American citizens and his insistence that his administration had “worked tirelessly” to amend offending provisions, and would “oppose any attempt to extend or expand them in the future,” Obama signed the NDAA 2012 into law on New Year’s Eve 2011. Sadly, this year’s passage didn’t even merit that much protestation or concern over its indefinite detention provision from the Commander in Chief or his cohorts in Congress.

Obama may have sailed into the White House promising unprecedented levels of transparency in his administration, but his track record has proven him no different than his predecessors – content to distract the populace with a political circus while undermining the rule of law behind closed doors.

Just as the enactment of the NDAA ensures that no one is safe from indefinite detention, Congress’ renewal and Obama’s signing of the FISA Amendments Act, which gives the executive branch broad power to spy on American citizens who contact people overseas, leaves us powerless in the face of government surveillance. Making matters worse, there are few out there – government official, congressman or judge – who are willing to step up and put a stop to these violations of our rights. Even that once-vaunted Fourth Estate, the media, which was supposed to act as a check on the government’s power grabs, has become complicit in torpedoing our freedoms.

Worst of all, however, and perhaps the most frightening state of affairs is that resistance to these government programs, decrees, and laws is minimal, undermined by a complacent citizenry and an uncritical acceptance of the way the government operates. In fact, the farce of American democracy, in which our elected officials perfectly mimic the appearance of representative government while actively opposing our best interests, has become par for the course.

Thankfully, there are still some willing to stand against the tide. One notable group, comprised of writers, academics, journalists, and activists, including former New York Times war correspondent Chris Hedges, Pentagon Papers whistleblower Daniel Ellsberg, and writer Noam Chomsky, is waging their war against Obama and his minions in court, challenging any attempt by the government to use the indefinite detention provision of the NDAA to limit constitutionally protected activity. For example, it is conceivable that those protesting American foreign policy, or those who interview suspected terrorists for journalistic purposes, may be considered in violation of the NDAA. As Hedges, a Pulitzer Prize winner, explained, “I, as a foreign correspondent, had had direct contact with 17 organizations that are on [the US government’s list of terrorist organizations], from al-Qaida to Hamas to Hezbollah to the PKK, and there’s no provision within that particular section [of the NDAA] to exempt journalists.”

There are also those within the judiciary who recognize the need for caution. On September 12, 2012, U.S. District Judge Katherine Forrest of the Southern District Court of New York ruled in favor of Hedges, placing a permanent injunction on the indefinite detention provision. Unfortunately, that ruling has since been overturned by the Second Circuit Court of Appeals pending its assessment of the provision’s constitutionality. With any protections against indefinite detention in legal limbo, Hedges warned, “The appellate court is all that separates us and a state that is no different than any other military dictatorship.”

Indeed, the fact that Americans are utterly dependent on a small group of judges, themselves part of the ruling elite in America, to safeguard their fundamental freedoms shows just how far we’ve fallen as a society and culture. When the rights and liberties which we once took for granted are little more than exceptions to the rule, open to interpretation by government officials who can throw them out based upon expediency, we have entered a new paradigm in America, and it doesn’t bode well for the future of democracy.

January 8, 2013

Constitutional attorney and author John W. Whitehead [send him mail] is founder and president of The Rutherford Institute. He is the author of The Change Manifesto (Sourcebooks).

Copyright © 2013 The Rutherford Institute

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