The USA PATRIOT Act and Fahrenheit 451

I'd like to thank everyone involved in organizing tonight's event, which is part of the Tacoma Reads Together Community Conversation. In particular, I'd like to thank David Domkoski of the Tacoma Public Library, Peter Callaghan of the Tacoma News Tribune, our moderator, my fellow "special guests," and above all, Mayor Bill Baarsma, for choosing Ray Bradbury's Fahrenheit 451 as the touchstone of our conversation.

Tonight, though, we'll probably be talking more about the USA PATRIOT Act than Ray Bradbury's novel.

We all know that the USA PATRIOT Act, together with a number of Federal Executive Orders, were cobbled together at a time of national emergency sixteen months ago, shortly after the president and congress decided that we, as a nation, are in a "war on terrorism." No doubt acts of terrorism are a genuine danger at this time in the life our our nation. Who would deny it? But I submit to you that the USA PATRIOT Act was a dubious, opportunistic, and dishonest piece of legislation whose effect have been more to subvert the Bill of Rights than to combat terrorism.

The Bill of Rights, together with the Constitution of which it is a part, and the Declaration of Independence, are the most important expressions of our fundamental core values as Americans: liberty and justice for all. In addition, the Bill of Rights is THE SUPREME LAW OF THE LAND, as Article VI of the Constitution puts it.

For two centures, since the famous decision by John Marshall in Marbury v. Madison in 1803, the principle of judicial review by the Supreme Court has been unchallenged. Thus there is still the hope that the Supreme Court will find key portions of the USA PATRIOT Act unconstitutional.

This Monday, February 24, was the bicentennial of the issuing of Marbury v. Madison, and it's disappointing that this date did not attract more national attention. In our media, there's more interest - a lot more interest - in Stephon Marbury of the Phoenix Suns than in Marbury v. Madison. So perhaps you'll indulge me if I quote John Marshall's words in Marbury v. Madison at some length:

"[I]f a law be in opposition to the constitution: if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law: the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.

"If then the courts are to regard the constitution; and the constitution is superior to any ordinary act of the legislature; the constitution, and not such ordinary act, must govern the case to which they both apply. Those then who controvert the principle that the constitution is to be considered, in court, as a paramount law, are reduced to the necessity of maintaining that courts must close their eyes on the constitution, and see only the law.

"This doctrine would subvert the very foundation of all written constitutions.

"It would declare that an act, which, according to the principles and theory of our government, is entirely void, is yet, in practice, completely obligatory.

"It would declare, that if the legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the legislature a practical and real omnipotence with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits, and declaring that those limits may be passed at pleasure.

". . . it thus reduces to nothing what we have deemed the greatest improvement on political institutions--a written constitution . . ." (Marbury v. Madison, 1 Cr. 137 (1803))

If the proponents of the USA PATRIOT Act believe that the Bill of Rights needs revision because of the changed circumstances in which we live, let them act like honest men and women, and bring forward an amendment or amendments to the Constitution.

I said just now that the core values of this nation are liberty and justice for all. Those words -- "liberty and justice for all" -- are not in the Constitution, being the coinage of Francis Bellamy, an ordained Baptist minister who had been dismissed from his Boston church for advocating the idea that Americans ought to be loyal not only to a nation but to an ideal. This was in 1892 -- a very significant date, for it was during the period when what historians like John Higham call "anti-radicalism," motivated by suspicion and fear of immigrants and exploited by political demagogues, began to push the United States from its historic defense of the rights of the oppressed toward a set of national policies aimed to defend and extend the privileges of the wealthy.

"Liberty and justice for all" -- a noble ideal. Both "liberty" and "justice" appear in the preamble to the constitution. But another word is often invoked these days by the Federal government: security. First, it was "national security" we heard about. During the Cold War, the country came to accept that the survival of the nation itself was at risk. New executive branch institutions were erected to save the nation: the Department of Defense, the Central Intelligence Agency, the National Security Council, the National Security Agency, and many others. In 1950, a plan was drawn up and adopted, NSC-68, to guide national security policy -- drawn up in secrecy, and revealed to the public only in 1977.

But now, we find the government asserting the doctrine that it has the obligation to ensure the safety and security of every citizen. William J. Haynes II, the General Counsel of the Department of Defense, for example, in a letter to the American Bar Association last Oct. 2, defended the view that the president now has the right to designate and hold individuals indefinitely without any judicial review because we are in a state of "war on terror," and grounded this abrogation of the Bill of Rights on just such a doctrine. General Counsel Haynes - who, incidentally, was appointed by Donald Rumsfeld - wrote: "The Constitution confers extraordinary power on the President to enable him to carry out his ultimate responsibility of ensuring that the American people are safe and secure." I submit to you that such a doctrine is subversive of the very Constitution the president swore to "preserve, protect, and defend" at noon on January 20, 2001.

At present, if they still value the concept of "liberty and justice for all," Americans have a chance wake up, and assert the true nature of their civil compact. They are doing so in increasing numbers, and some of us have joined Tim Smith's call to form a Bill of Rights Defense Committee here in Tacoma. But more Americans had better speak, and soon. Well informed observers tell us that it is only a matter of time before terrorists strike again. Who can guess what form such a strike may take? But more dangerous in the long run than their strike is the counterstike that may follow, not upon our security, but upon liberty and justice. The Center for Public Integrity, a well respected watchdog group founded in 1990, revealed three weeks ago that "[t]he Bush Administration is preparing a bold, comprehensive sequel to the USA PATRIOT Act that will give the government broad, sweeping new powers to increase domestic intelligence-gathering, surveillance and law enforcement prerogatives, and simultaneously decrease judicial review and public access to information." Someone leaked a Jan. 9 draft of the bill to the Center for Public Integrity, which made the previously undisclosed legislation available in full. Rumors had been circulating around Washington about the bill, drafted by the staff of Attorney General John Ashcroft. Entitled the Domestic Security Enhancement Act of 2003, its very existence was denied by officials in the Justice Department prior to the leaking of the draft. And it has still not been officially released by the Department of Justice. (For more information, Click here. People have been calling it the Patriot Act II.

What if some terrorist attack had occurred before Feb. 7? Would not the this dubious Patriot Act II have been rushed to Congress and passed, like the USA PATRIOT Act, by panicked legislators who did not even take the time to read the bill?

Terrorism is a danger, both here and abroad. But the threat is not a new one. And we are not the first nation to face such challenges.

I ask you: is the threat of international terrorism really comparable to the threat of thousands of Soviet ICBMs targeting our cities? I think not. Yet because of a lesser risk we are allowing our liberties to be abridged in ways that are altering our fundamental way of life. To do so is not to preserve our security -- it's to admit to the terrorists that they have won.

Remember when patriots used to celebrate the history of the United States as one of a dauntless people who fearlessly faced a wilderness? No doubt those people did many things of which we do not approve today. But surely we can still admire their courage. They faced danger and often met death, but they did not demand a constitutional regime that permitted the federal government to encroach on their freedoms with some dubious and unfulfillable guarantee of "security."

Michael Moore's Bowling for Columbine was an insightful depiction of a culture that now allows its mass media to inculcate a climate of fear. One of the most insightful aspects of Fahrenheit 451 is its depiction of a citizenry bewitched by its talking "parlor walls" into a mesmerized state of mass hypnosis. In some ways the society we have created is even more effective than the one the young Ray Bradbury imagined when he tried to write about what life would be like today. We have created a society in which well capitalized corporations and political media consultants work hand-in-glove to "manufacture consent," to use Noam Chomsky's memorable phrase. Substantial dissent about policy is only permitted in the mass media when there is a lack of consensus within the political and corporate elite. Otherwise, alternative points of view are filtered out. Proposals like the "Tobin tax," so called for its endorsement by Nobel-prize-winning economist James Tobin, to finance development in the poorest countries by taxing one-tenth of one percent of the immense sums spent to speculate on the rise and fall of foreign currencies, go almost completely unheard in our mass media, because no one in our corporate and political elite favors them. And Chomsky has identified another ideological filter in our mass media: no one contesting the fundamental bona fides of the agents of the American state are allowed to have a platform in the mass media. As a result, the U.S. public never hears expressed in its mass media a truth which is evident to citizens of other countries around the world, namely, the fact that the United States has deliberately and frequently defied international law and perpetrated acts that satisfy its own definition of an "act of terrorism" in U.S. Code, Title 18, Part II, Chapter 204, Section 2077, as "an activity that - (A) involves a violent act or an act dangerous to human life that is a violation of the criminal laws of the United States or of any State, or that would be a criminal violation if committed within the jurisdiction of the United States or of any State; and (B) appears to be intended - (i) to intimidate or coerce a civilian population; (ii) to influence the policy of a government by intimidation or coercion; or (iii) to affect the conduct of a government by assassination or kidnapping." U.S. Code, Title 18, Part II, Chapter 204, Section 2077. Millions of Americans believe -- indeed, know - that the U.S. engages in such practices - indeed, it is a staple of fiction, motion pictures, and television drama --, yet they never hear it expressed on ABC, NBC, CBS, CNN, FOX, MSNBC, the New York Times (which has never even reviewed one of Chomsky's volumes on political matters), the Washington Post, etc., etc., etc., ad nauseum. Instead, they are fed ridiculous assertions, like those expressed last Sunday by George Will that opposition to U.S. policies is due to "moral infantalism," (News Tribune [Tacoma], Feb. 23, 2003) or the endlessly repeated idea that the French are "anti-American," when in fact the French public as well as the French president deeply admire the American people.

So what's going on? If you'll permit me, I'd like to summarize Noam Chomsky's views about how our corporate media system works. He writes: "The general subservience of the media to the state propaganda system does not result from direct government order, threats or coercion, centralized decisions, and other devices characteristic of totalitarian states, but from a complex interplay of more subtle factors." It's a different sort of ideological control, which is all the more effective because "one can remain under the impression that censorship does not exist, and in a technical sense that is correct." "You will not be imprisoned if you discover the facts," Chomsky writes, "not even if you proclaim them whenever you can. But the results remain much the same as if there were real censorship." Chomsky considers this propaganda system "well beyond anything that Orwell [or Bradbury] imagined." Ultimately, it is the product of market forces in a highly unequal society. It operates through institutional pressures and the seductions of privilege. Freedom of thought is nevertheless real in our societies. Indeed, it is precisely because of this that our society has developed such a sophisticated mechanism for shackling public opinion, in which external controls have been replaced by internal controls. According to Chomsky, our system "combines highly effective indoctrination with the impression that the society is really 'open,' so that pronouncements conforming to the state religion are not to be dismissed out of hand as mere propaganda." Thus the sense of freedom that intellectuals in totalitarian societies have when they "see through" the system of lies is unavailable here. There is no system of lies to see through: the system is transparent. And its victims are unaware of being manipulated. According to Chomsky, the system sets up boundaries of permissible dissent, but which are unstated. Then those boundaries communicate in a subtle way to the public what are the range of permissible opinions. Other views are simply ignored, or presented in ways that discredit them.

Among the other factors that play a role in creating the internal controls on expression that serve to maintain the system: the media are owned by the rich; the media depend on advertising for their continued existence; ownership of media is increasingly integrated, both horizontally and vertically; news organizations depend for their work as journalists on access to government officials, which can be denied; there is a system of control to keep those who stray in line that works through letters, phone calls, petitions, speeches, legal action, or legislative action against those who provide unwanted news as well as through categories available to marginalize those who disagree: radical, activist, useful idiot, etc. To conclude, Chomsky has described a "Propaganda Model" which relies not on censorship to function à la Fahrenheit 451 but on a guided free market media economy in which the selection of personnel plays a key role and where institutional pressures combine with self-censorship to produce an extremely controlled intellectual culture. (For more information, see Milan Rai, Chomsky's Politics (London & NY: Verso, 1995), from the second chapter of which the quotations above are taken, or any of Chomsky's works on politics. A useful anthology of Chomsky's writings is James Peck, ed., The Chomsky Reader (NY: Alfred A. Knopf, 1987).)

So our own system of censorship has a genius to it that goes far beyond the one devised by the shadowy governors of the world of Fahrenheit 451. For our rulers are able to maintain their control in a world in which alternative points of view are easily obtainable -- so easily available that we even have a name for those who provide them, "alternative media."

In the French-speaking world, it is difficult even to translate the terms "mainstream media" and "alternative media." A journalist friend in Geneva spent some time asking his colleagues how they would translate the phrase "mainstream media" and the best they could come up with was "la presse dominante." But the genius of our system is that there is no real domination. I can come and speak my views this evening with the greatest freedom. Many of you here will know that what I am speaking is the truth. But the fact that the detailed case of the U.S. secretary of state has been extensively and thoroughly refuted in all its particulars by knowledgeable parties is something our "mainstream media" refuses to report. The fact that the president of the United States has for months saying things he either knows are not true or ought to know are not true, is never stated in our mainstream media.

If we are not living in the world of Fahrenheit 451, what kind of world are we living in? What kind of world is this? -- It's a good question -- the very question that Ed Horman, the character played by Jack Lemmon in Costa-Gavras's 1982 film Missing, is led to ask when his attempts to find his son lead to his discoveries about U.S. complicity in the violent and bloody overthrow of a democratically elected government in Chile in 1973. Fortunately for us, it's a question that we're still able to discuss freely together tonight.

But - and here, to my mind, is the real problem with the USA PATRIOT Act -- fewer and fewer of us are willing to talk about such things in public. During the long Cold War, Americans learned that questioning the bona fides of government policy could lead to accusations of "un-Americanism." There was even a House Un-American Activities Committee that held hearings. Careers were ruined, and reputations besmirched. In the aftermath of September 11, our reflexes kicked in, and people for the most part obeyed Ari Fleischer's injunction to "watch what you say." Among close friends, in family groups, people talked one way, and in large groups, with strangers, or with those not well known, they either talked differently or avoided certain topics altogether. At the moment I'm preparing these remarks, the mood has changed considerably. But it has already been affected by the elevation of the "alert level" on Feb. 7.

And for me, this is why the USA PATRIOT Act is such a disaster. By creating a vague new crime of "domestic terrorism," by defining terrorism in Section 411 of the act in such a way that an individual can find himself or herself accused of a "terrorist activity" simply by providing "material support" which an individual might consider to be a charitable or civic-minded contribution to an organization that the government decides to designate as terrorist (perhaps after some conveniently arranged action of an agent provocateur), the USA PATRIOT Act repositions the cold, familiar, chilling hand of repressive restraint on all sorts of activities that aim to further social justice. This sort of thing took place in the 1950s, 1960s, and 1 970s, when the civil liberties of those working in the civil rights and peace movements were systematically abused. This included Martin Luther King Jr., whom we now honor as a national hero, but from 1963 to 1966 the FBI maintained wiretaps on phones used by Martin Luther King Jr. and associates. Information that demonstrated that King was hostile to Communism was suppressed by the FBI, and officials in the Kennedy and Johnson administrations were told instead that King was "a genuine Marxist-Leninist who is following the Marxist-Leninist line." (David J. Garrow, The FBI and Martin Luther King, The Atlantic Monthly, July-August 2002.

In fact, of course, Martin Luther King Jr. was a man profoundly committed to the elementary American notion of "liberty and justice for all," a man who was guilty simply of loving the United States of America and believing both in the goodness of the nation's ideal and in the goodness of the American people. The obssession with security in the federal government distracted and harrassed for years, and violated the elementary civil rights our Constitution and our Bill of Rights should have protected.

You are all aware of other examples of instances in which concerns for security led to the violations of the rights of citizens - others are taking right this minute. My God: are we really incapable of learning anything from the past? Does anyone here seriously imagine that the existence of the nation as it was in the Cold War? What we need more than anything at present is a leader of the caliber of Franklin Delano Roosevelt, who, at a moment infinitely more perilous to the nation than the present one, told the American people: "We have nothing to fear but fear itself."

Later, when the country faced war, FDR gave a famous address known as "The Four Freedoms." (Jan. 6, 1941) His words are worth recalling today. This is what he said about the "four essential freedoms, a few months before the entry of the United States into World War II: "The first is freedom of speech and expression-everywhere in the world. The second is freedom of every person to worship God in his own way-everywhere in the world. The third is freedom from want--which, translated into world terms, means economic understandings which will secure to every nation a healthy peace time life for its inhabitants-everywhere in the world. The fourth is freedom from fear--which, translated into world terms, means a worldwide reduction of armaments to such a point and in such a thorough fashion that no nation will be in a position to commit an act of physical aggression against any neighbor-anywhere in the world."

Under the pressures of the cold war and misguided by the military-industrial complex, we have drifted far from FDR's clarity of vision. By trying to preserve the Bill of Rights in the face of the outrageous USA PATRIOT Act, we are struggling to preserve the first freedom, THE FREEDOM OF SPEECH AND EXPRESSION. The second freedom, the freedom of religion, is also a fundamental First Amendment freedom. If the third, FREEDOM FROM WANT . . . ECONOMIC UNDERSTANDINGS WHICH WILL SECURE TO EVERY NATION A HEALTHY PEACE TIME LIFE FOR ITS INHABITANTS, had really been a goal of U.S. foreign policy over the past fifty years, we would not find ourselves where we are today. And the fourth, FREEDOM FROM FEAR, needs defending now more than ever. Remember how Roosevelt defined it: A WORLDWIDE REDUCTION OF ARMAMENTS TO SUCH A POINT THAT NO NATION WILL BE IN A POSITION TO COMMIT AN ACT OF PHYSICAL AGGRESSION AGAINST ANY NEIGHBOR--ANYWHERE IN THE WORLD.

But this goal was forgotten by Harry Truman. Dwight D. Eisenhower saw the consequences. In January 1961, at the end of his final term, issued his memorable warning that the military-industrial complex was threatening the underpinnings of American democracy. Eisenhower's warning has gone unheeded, and now our annual military spending is approaching $400 billion a year. The Navy War College site reported in 2002 that "The U.S. military accounts for roughly a third of military outlay around the globe; adding the spending of friends and allies makes the figure 70 to 80 percent. The United States spends as much on defense as the next six or seven countries together, most of whom are friends and allies. Its force is the most technologically advanced, the most effective." In this situation, the notion that we need more spending on security borders on obscene. And yet this is what we constantly hear from our "parlor walls," while we threaten those who think otherwise with wiretapping, insinuations of disloyalty, the possibility of being accused of "terrorist activity" and our other, more modern, more subtle, more effective equivalents of Ray Bradbury's Mechanical Hound.

In the weeks and months to come, it is fair to say, the academy will once again come under attack by the forces of ideological control. I submit to you that it is our duty, as academics, to stand firm in the face of those attacks. Ray Bradbury paid us an enormous compliment, in those days when I was not yet born, when he put these words in the mouth of a (former) academic: "And when they ask us what we're doing, you can say, We're remembering. That's where we'll win in the long run. And someday we'll remember so much that we'll build the biggest goddamn steamshovel in history and dig the biggest grave of all time and shove war in and cover it up. Come on now, we're going to go build a mirror factory first and put out nothing but mirrors for the next year and take a long look in them." (Ray Bradbury, Fahrenheit 451 [New York: Ballantine Books, 1991], p. 164. [Orig. ed. 1953.])

Thank you.

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Last updated: March 1, 2003