Gary Younge writes: When Ray Kelly, the man Barack Obama is currently considering to lead homeland security, was the New York City police commissioner, he allegedly had a policy of terrorising black and Latino neighbourhoods.

A hearing into the city’s stop-and-frisk policies in spring heard how Kelly told state senator Eric Adams that “he targeted and focused on [black and Latino youth] because he wanted to instil fear in them every time they left their homes that they could be targeted by the police”. The hearing also heard a secret recording of South Bronx deputy inspector Christopher McCormack telling a subordinate to stop “the right people at the right time, the right location”, and focus stop-and-frisks on “male blacks” between 14 and 21.

A decision on the constitutionality of the city’s stop-and-frisk practices is expected any time now, marking the latest in a summer of legal showdowns that have exposed both the power and partiality of the American state. Many who previously understood the legal system and its enforcers to be dispassionate arbiters of justice working in the interests of society as a whole have been forced to re-evaluate their assumptions.

First came the trial of Bradley Manning, charged in a military court with “aiding the enemy” for passing diplomatic cables and other classified military information to WikiLeaks. Then came the manhunt for Edward Snowden, the former National Security Agency contractor, who leaked evidence of mass snooping. More recently there was the trial of George Zimmerman, the neighbourhood watchman in Florida who pursued Trayvon Martin, a young, black, unarmed teen, and shot him dead after Martin confronted him. Soon will come the verdict on stop-and-frisk.

Each, clearly, is its own case, with its own dynamics, outcomes and facts on the ground. There are many who will favour prosecution in one case but not in another. The point here is not that the cases raise identical issues.

And yet for all their glaring differences they share at some crucial traits: each, in its own way, raises fundamental questions about the function and purpose of the American state, the moral underpinnings of the legal system in which it is grounded, and the degree to which the law is designed to work for or against the people in whose name it operates. [Continue reading…]

Foreign Policy reports: For decades, a so-called anti-propaganda law prevented the U.S. government’s mammoth broadcasting arm from delivering programming to American audiences. But on July 2, that came silently to an end with the implementation of a new reform passed in January. The result: an unleashing of thousands of hours per week of government-funded radio and TV programs for domestic U.S. consumption in a reform initially criticized as a green light for U.S. domestic propaganda efforts. So what just happened?

Until this month, a vast ocean of U.S. programming produced by the Broadcasting Board of Governors such as Voice of America, Radio Free Europe/Radio Liberty and the Middle East Broadcasting Networks could only be viewed or listened to at broadcast quality in foreign countries. The programming varies in tone and quality, but its breadth is vast: It’s viewed in more than 100 countries in 61 languages. The topics covered include human rights abuses in Iran; self-immolation in Tibet; human trafficking across Asia; and on-the-ground reporting in Egypt and Iraq.

The restriction of these broadcasts was due to the Smith-Mundt Act, a long standing piece of legislation that has been amended numerous times over the years, perhaps most consequentially by Arkansas Senator J. William Fulbright. In the 70s, Fulbright was no friend of VOA and Radio Free Europe, and moved to restrict them from domestic distribution, saying they “should be given the opportunity to take their rightful place in the graveyard of Cold War relics.” Fulbright’s amendment to Smith-Mundt was bolstered in 1985 by Nebraska Senator Edward Zorinsky who argued that such “propaganda” should be kept out of America as to distinguish the U.S. “from the Soviet Union where domestic propaganda is a principal government activity.” [Continue reading…]

Michael Lind writes: Is the Bill of Rights — made up by the first 10 amendments to the U.S. Constitution — the foundation of American liberty? So we are told by civil libertarians on the left alarmed by government surveillance programs, and by opponents of gun control on the right. The truth about the Founders and the Bill of Rights, however, is quite at odds with modern civil libertarian mythology.

The term “Founders” is ambiguous. It usually refers to the delegates who drafted today’s federal Constitution in Philadelphia in 1787, but it might as well apply to the members of the state ratifying conventions, who voted to enact it into law. In this case, it doesn’t matter, because a majority of the delegates at the Constitutional Convention rejected proposals by Virginia’s George Mason and others to include a bill of rights in the federal Constitution. The new federal Constitution was then ratified by a majority of the states, even though no bill of rights was included. Neither the drafters nor the ratifiers of the Constitution thought a bill of rights was necessary to protect American liberties.

Why did the authors of the Constitution reject proposals for a bill of rights? The Federalist Papers, written by Alexander Hamilton, James Madison and John Jay to promote ratification of the new Constitution, defends the decision of the framers of the U.S. Constitution to exclude any bill of rights.

In Federalist 84, Hamilton observes that a bill of rights, as a bargain between the people and a separate ruler, is irrelevant in a republic in which the people themselves are the collective sovereign.

It has been several times truly remarked, that bills of rights are in their origin, stipulations between kings and their subjects, abridgments of prerogative in favor of privilege, reservations of rights not surrendered to the prince. …It is evident, therefore, that according to their primitive signification, they [i.e. bills of rights] have no application to constitutions professedly founded upon the power of the people, and executed by their immediate representatives and servants. Here, in strictness, the people surrender nothing, and as they retain every thing, they have no need of particular reservations.

Hamilton also argues that listing some rights in the Constitution might inadvertently endanger other rights, which would be assumed to be unprotected because they were not mentioned:

I go further, and affirm that bills of rights, in the sense and in the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous. They would contain various exceptions to powers which are not granted; and on this very account, would afford a colourable pretext to claim more than were granted.

Hamilton, the founder of the New York Post, did not agree that a bill of rights was necessary to protect freedom of the press:

What signifies a declaration that “the liberty of the press shall be inviolably preserved?” What is the liberty of the press? Who can give it any definition which would not leave the utmost latitude for evasion? I hold it to be impracticable; and from this, I infer, that its security, whatever fine declarations may be inserted in any constitution respecting it, must altogether depend on public opinion, and on the general spirit of the people and of the government.

Hamilton concluded that the regulation of power by the federal Constitution itself, not a laundry list of specific rights, was the best protection of liberty in the new country:

The truth is, after all the declamation we have heard, that the constitution is itself in every rational sense, and to every useful purpose, a bill of rights.

James Madison, the “father of the Constitution,” shared the skepticism of the majority of the Founders about bills of rights. However, the Anti-Federalists, the opponents of a stronger federal government, were particularly influential in slave states like Madison’s Virginia, where they were inspired by some of his fellow slave owners like Thomas Jefferson, George Mason and Patrick Henry. These men were hardly precursors of the ACLU. Mason and Henry in particular objected to the federal Constitution because it did not sufficiently prevent the federal government from intervening in Southern slavery. Unlike George Washington, the only slave-holding president who freed his own slaves at his death, and a supporter of a strong federal government, Mason and Henry were hypocrites who denounced slavery in the abstract while opposing any government power that might infringe upon their despotic personal power over their own slave “property.” [Continue reading…]

McClatchy reports: In the darkened stacks of a nondescript building in the suburbs outside Washington, dozens of federal employees wearing protective gloves spend day after day sifting through millions of pages of secret documents, some of them nearly a century old.

The 70 staffers of the National Declassification Center are charged with deciding – anonymously and quietly – which of the nation’s old secrets can be laid bare for the world to see.

They have a backlog of hundreds of millions of pages marked for possible declassification, and they’re able to release those that don’t reveal information about weapons of mass destruction, harm diplomatic relations or threaten the safety of the president of the United States. But no one believes they’ll be able to make a year-end deadline set by President Barack Obama. And in the meantime, the government is classifying even more secrets.

After three and half years, just 70 million pages have been released, including the Pentagon Papers and a World War I-era recipe for secret ink. Another 45 million pages have been kept classified. The rest have yet to be fully processed. (Because the material is more than 25 years old, it’s paper and not the disks, microfilm and emails that came later.)

“It’s not going to happen,” said Steven Aftergood, who directs the Federation of American Scientists Project on Government Secrecy, and is an expert on – and prominent critic of – government secrecy. “That should be a signal to everyone that the system is broken. Not even the president can make it work.”

Meanwhile, the government can’t keep up with the ever-escalating onslaught of classified documents, which are accumulating faster than ever before because of the growing bureaucracy, switch to electronic data and a prevailing culture of secrecy.

Each day, federal agencies spend more time, money and effort classifying documents than declassifying them.

In fiscal year 2011, about 2,400 employees classified documents and only hundreds declassified them, according to the most recent statistics available – which exclude the backlog – from the Information Security Oversight Office. They classified information 92 million times and declassified it only 27 million times. They spent more than $11 billion to classify documents at 41 agencies – more than double the amount a decade ago – and only $53 million on declassification. (The entire tab for classification is unknown because the cost at certain intelligence agencies is, in fact, classified.) [Continue reading…]