Some years ago, I was photographing a constitutional law professor for a magazine article on his book, and while I composed my shots I employed the usual half-minded topical banter to keep things on course. The professor was pretty progressive and knew I was a veteran antiwar activist. I was muttering something about constitutional rights.
In the lens, I noticed him chuckling at something, so I pulled my eye away from the camera and looked at him. He was grinning now.
“John, you know they abrogated the Constitution long ago,” he said, his tone a bit patronizing but also mixed with camaraderie and humor.
“Oh, yeh!” I said. “I forgot about that.” We both laughed, and I went on with the shoot.
I couldn’t help thinking about that conversation as I read the story in The New York Times about the new powers being given to individual FBI agents to snoop on citizens they subjectively deem dangerous.
As a veteran anti-war activist and blogster critical of my government, I took this news somewhat personally, since, according to the Times report, without getting permission or making a report, FBI agents could sneak around the back of my house at night and fish through my garbage cans. They could do this if they thought there might be information in those cans useful to intimidate me to snitch on someone. (For the record, I’m not uncomfortable with an FBI agent going through the rancid chicken parts and feces from our cat’s litter box. I have nothing to hide.)
Apparently, individual FBI agents are also now empowered to meddle with me and other writers on this blog in ways I can only imagine — if they deem that necessary. It has to do with the blogosphere and the First Amendment. According to the Times, the new rules clarify for agents just who is a “legitimate member of the news media” on the internet and who is not. The Times reports that “prominent bloggers would count, but not people who have low-profile blogs.” I presume “count” means that a blog is deemed to have First Amendment rights.
While we writers here at In The Mind Field are quite serious and ambitious, we are not The Huffington Post. So I imagine the average FBI agent would relegate us to the realm of “low-profile blog” and, thus, to the list of fair game blogs for whatever harassment or intimidation might be deemed necessary.
I’m not a scholar of constitutional original intent like Antonin Scalia, but in my citizen’s understanding, the First Amendment was written at a time when to be a legitimate journalist all you needed was a small printing press to re-produce a single sheet of information. One man could do the entire operation — very much like a blog today. You didn’t need some kind of corporate membership or club badge issued by the government. Readership numbers and clout was not the issue. Ideas was the issue. It was about a principle.
The First Amendment is clear. “Congress shall make no law … abridging the freedom of speech or the press …” It doesn’t say anything about not abridging the freedom of only those journalistic enterprises the FBI deems legitimate or too powerful to screw with. We’re really in trouble when a secretive national police force becomes the arbiter of who is, and who is not, a legitimate journalist covered by the First Amendment.
Of course, free-lance, independent journalists live this reality every day vis-à-vis local police who regularly intimidate and arrest “low profile” blogsters and photographers who they order to stop recording arrests or other police behavior. It’s widely known that this is illegal – that is, that reporters and photographers have the right to record arrests as long as they don’t threaten or hinder the police. Yet, it happens all the time anyway. When a cop under orders from above sneers at you when you tell him he can’t legally stop you from shooting an arrest situation, and he and three other cops move on you to slam you to the ground and take your camera, what are you going to do, call a cop?
As an example of how it works, last year in Philadelphia an Op-ed News blog photographer was arrested and her camera impounded at a demonstration after she would not exit the area in question when arrests were about to be made. No mainstream media people were there, since the mainstream media chooses not to cover this kind of thing. Then, just before her trial, all charges were dropped. The police had gotten what they wanted: They shut down the photographer and had no embarrassing record of the arrests. And, given what they did was constitutionally illegal, they naturally did not wish to have the matter raised in court. They also had a pretty good idea that an expensive federal lawsuit in the age of Antonin Scalia justice would be futile.
The new FBI rules of engagement – technically a revision of the agency’s Domestic Investigations and Operations Guide – also allow an agent or informant to infiltrate an activist group’s meetings at least five times without any kind of documented order or record being kept. In FBI-speak, this is called “undisclosed participation.” After the FBI had abused this process back in 2007, according to the Times, “the bureau had fixed the problem.” Sadly, in this instance, they seem to have “fixed” the problem by making the problem an integral, acceptable part of their guidelines.
This is, again, a personal matter, since I’m part of an anti-war group often critical of US policy called Veterans For Peace. We meet monthly, and over the years, we have periodically gotten a bad vibe that some member might be some kind of police informant attending our meetings. Right now, in fact, several members are asking that question about one member in particular. Our policy is, as long as he pays his dues, he’s welcome – even if he is a sneak. The fact is, we will go toe-to-toe, eyeball-to-eyeball with any FBI agent who feels we don’t have our nation’s best interests at heart or that he or she is a better American.
What seems so insidious about these new operational guidelines is that they allow agents to operate without any record of their essentially secret-police behavior vis-à-vis ordinary citizens. It’s natural that members of a powerful and secretive national police force would want their work made easier, to feel less demand for supervisory approval of their activities, to have fewer forms to fill out and, basically, to have less accountability for their actions. That‘s certainly the case with every sexy cop and anti-terror-agent show on TV, all of them harking back to the classic liberal backlash cop drama, Dirty Harry.
“OK, punk! There’s one question you need to ask: ‘Do I feel lucky today?’ ”
Following a confusing melee of bullets, his 44-magnum cannon pointed at a miscreant’s head, the question refers to whether Harry fired five or six rounds. The archetypal Harry hates paperwork. He can’t stand supervisors. He loves to cut corners. And Harry’s visceral criminal detector is so good he knows who’s a sinister, evil cur deserving of his wrath — like the effeminate, demon child-killer he’s after who wears a peace-sign belt buckle. In Harry’s world, accountability and restraint are for patsies.
That’s reactionary Hollywood in 1971, but sadly, many real cops, including FBI agents, often seem to develop some degree of this Harry Callahan complex. They know their instincts are right. Everything will be great as long as they get the limp-wristed liberals off our backs so they can do their job.
There is a reason for having checks and balances on police agents. There is a reason for them to have to understand what the Constitution means — since it was not written for them; it was written for those who, in a police agent’s subjective mind, are deemed to be criminals. Last week, on the blog This Can’t Be Happening, Linn Washington reported on a federal magistrate judge who sent two armed US marshals to someone’s house because the man had written the judge a letter modestly questioning his integrity. When the suspect asked the marshals about his constitutional rights to speak his mind, a marshal told him that the US Constitution was “an old document” and that it was “irrelevant” to the issue.
As the Chinese say, it’s both a blessing and a curse to live in interesting times. The President of the United States is a former Constitutional scholar who seems, like my professor subject above, to feel the Constitution was abrogated long ago and that we’re all now playing foosball with the document and its meaning. His administration is outdoing the Bush Administration in prosecuting whistleblowers who release information to the American people through the press. They want to imprison and make examples of these people. The Obama administration defends the most egregious instances of legal hypocrisy concerning WikiLeaks material as it relates to the prisoners in Quantanamo, the continued existence of which amounts to a national disgrace of justice and jurisprudence.
In a recent speech, former Interior Secretary Bruce Babbit said President Obama’s failure to mount a formidable counterattack to the right’s “radical” assault on environmental safeguards was a “form of appeasement.” The same applies in the area of constitutional rights. While the constitution may technically have been “abrogated long ago,” it’s still there as the ultimate operational guideline for government agents and, most important, as something to fight for against the natural forces of oppression that are weighing in big time at this crucial juncture of economic and military crisis.
At a time in history when instruments of potential police abuse should be tightening up their mechanisms for agent accountability, things seem to be going the other way. Now, thanks to the FBI’s new, looser operational guidelines, whenever I hear something going through my garbage I won’t be thinking raccoon.