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Chris Hedges Report:
How Fascism Came
The loss of basic democratic norms began long before Trump, which paved the road to an American totalitarianism. He is the symptom, not the disease. Read here...
The loss of basic democratic norms began long before Trump, which paved the road to an American totalitarianism. He is the symptom, not the disease.
For over two decades, I and a handful of others — Sheldon Wolin, Noam Chomsky, Chalmers Johnson, Barbara Ehrenreich and Ralph Nader — warned that the expanding social inequality and steady erosion of our democratic institutions, including the media, the Congress, organized labor, academia and the courts, would inevitably lead to an authoritarian or Christian fascist state.
My books — American Fascists: The Christian Right and the War on America (2007), Empire of Illusion: The End of Literacy and the Triumph of Spectacle (2009), Death of the Liberal Class (2010), Days of Destruction, Days of Revolt (2012), written with Joe Sacco, Wages of Rebellion (2015) and America: The Farewell Tour (2018) were a succession of impassioned pleas to take the decay seriously. I take no joy in being correct.
“The rage of those abandoned by the economy, the fears and concerns of a beleaguered and insecure middle class, and the numbing isolation that comes with the loss of community, would be the kindling for a dangerous mass movement,” I wrote in American Fascists in 2007.
“If these dispossessed were not reincorporated into mainstream society, if they eventually lost all hope of finding good, stable jobs and opportunities for themselves and their children — in short, the promise of a brighter future — the specter of American fascism would beset the nation. This despair, this loss of hope, this denial of a future, led the desperate into the arms of those who promised miracles and dreams of apocalyptic glory.”
President-elect Donald Trump does not herald the advent of fascism. He heralds the collapse of the veneer that masked the corruption within the ruling class and their pretense of democracy. He is the symptom, not the disease.
The loss of basic democratic norms began long before Trump, which paved the road to an American totalitarianism.
Deindustrialization, deregulation, austerity, unchecked predatory corporations, including the health-care industry, wholesale surveillance of every American, social inequality, an electoral system that is plagued by legalized bribery, endless and futile wars, the largest prison population in the world, but most of all feelings of betrayal, stagnation and despair, are a toxic brew that culminate in an inchoate hatred of the ruling class and the institutions they have deformed to exclusively serve the rich and the powerful.
The Democrats are as guilty as the Republicans.
“Trump and his coterie of billionaires, generals, half-wits, Christian fascists, criminals, racists, and moral deviants play the role of the Snopes clan in some of William Faulkner’s novels,” I wrote in America: The Farewell Tour.
“The Snopeses filled the power vacuum of the decayed South and ruthlessly seized control from the degenerated, former slaveholding aristocratic elites. Flem Snopes and his extended family — which includes a killer, a pedophile, a bigamist, an arsonist, a mentally disabled man who copulates with a cow, and a relative who sells tickets to witness the bestiality — are fictional representations of the scum now elevated to the highest level of the federal government. They embody the moral rot unleashed by unfettered capitalism.”
William Faulkner in 1949. (Library of Congress)
“The usual reference to ‘amorality,’ while accurate, is not sufficiently distinctive and by itself does not allow us to place them, as they should be placed, in a historical moment,” the critic Irving Howe wrote of the Snopeses. “Perhaps the most important thing to be said is that they are what comes afterwards: the creatures that emerge from the devastation, with the slime still upon their lips.”
“Let a world collapse, in the South or Russia, and there appear figures of coarse ambition driving their way up from beneath the social bottom, men to whom moral claims are not so much absurd as incomprehensible, sons of bushwhackers or muzhiks drifting in from nowhere and taking over through the sheer outrageousness of their monolithic force,” Howe wrote.
“They become presidents of local banks and chairmen of party regional committees, and later, a trifle slicked up, they muscle their way into Congress or the Politburo. Scavengers without inhibition, they need not believe in the crumbling official code of their society; they need only learn to mimic its sounds.”
The political philosopher Sheldon Wolin called our system of governance “inverted totalitarianism,” one that kept the old iconography, symbols and language, but had surrendered power to corporations and oligarchs.
Now we will shift to totalitarianism’s more recognizable form, one dominated by a demagogue and an ideology grounded in the demonization of the other, hypermasculinity and magical thinking.
Fascism is always the bastard child of a bankrupt liberalism.
“We live in a two-tiered legal system, one where poor people are harassed, arrested and jailed for absurd infractions, such as selling loose cigarettes — which led to Eric Garner being choked to death by the New York City police in 2014 — while crimes of appalling magnitude by the oligarchs and corporations, from oil spills to bank fraud in the hundreds of billions of dollars, which wiped out 40 percent of the world’s wealth, are dealt with through tepid administrative controls, symbolic fines and civil enforcement that give these wealthy perpetrators immunity from criminal prosecution,” I wrote in America: The Farewell Tour.
Chicago protesters on Dec. 4, 204, after a Staten Island grand jury cleared NYPD Officer Daniel Pantaleo for killing Eric Garner with a prohibited chokehold. (Samantha Lotti, Wikimedia Commons, CC BY-SA 4.0)
The utopian ideology of neoliberalism and global capitalism is a vast con. Global wealth, rather than being spread equitably, as neoliberal proponents promised, was funneled upward into the hands of a rapacious, oligarchic elite, fueling the worst economic inequality since the age of the robber barons.
The working poor, whose unions and rights were stripped from them and whose wages have stagnated or declined over the past 40 years, have been thrust into chronic poverty and underemployment.
Their lives, as Barbara Ehrenreich chronicled in Nickel and Dimed, are one long, stress-ridden emergency. The middle class is evaporating. Cities that once manufactured products and offered factory jobs are boarded up-wastelands.
Prisons are overflowing. Corporations have orchestrated the destruction of trade barriers, allowing them to stash $1.42 trillion in profits in overseas banks to avoid paying taxes.
Neoliberalism, despite its promise to build and spread democracy, swiftly gutted regulations and hollowed out democratic systems to turn them into corporate leviathans.
The labels “liberal” and “conservative” are meaningless in the neoliberal order, evidenced by a Democratic presidential candidate who bragged about an endorsement from Dick Cheney, a war criminal who left office with a 13 percent approval rating.
The attraction of Trump is that, although vile and buffoonish, he mocks the bankruptcy of the political charade.
“The permanent lie is the apotheosis of totalitarianism,” I wrote in America: The Farewell Tour:
“It no longer matters what is true. It matters only what is ‘correct.’ Federal courts are being stacked with imbecilic and incompetent judges who serve the ‘correct’ ideology of corporatism and the rigid social mores of the Christian right.
They hold reality, including science and the rule of law, in contempt. They seek to banish those who live in a reality-based world defined by intellectual and moral autonomy. Totalitarian rule always elevates the brutal and the stupid. These reigning idiots have no genuine political philosophy or goals.
They use clichés and slogans, most of which are absurd and contradictory, to justify their greed and lust for power. This is as true for the Christian right as it is for the corporatists that preach the free market and globalization. The merger of the corporatists with the Christian right is the marrying of Godzilla to Frankenstein.”
The illusions peddled on our screens — including the fictitious persona created for Trump on The Apprentice — have replaced reality.
Politics is burlesque as Kamala Harris’ vapid, celebrity-filled campaign illustrated. It is smoke and mirrors created by the army of agents, publicists, marketing departments, promoters, script writers, television and movie producers, video technicians, photographers, bodyguards, wardrobe consultants, fitness trainers, pollsters, public announcers and television new personalities.
We are a culture awash in lies.
“The cult of the self dominates our cultural landscape,” I wrote in Empire of Illusion:
“This cult has within it the classic traits of psychopaths: superficial charm, grandiosity and self-importance; a need for constant stimulation, a penchant for lying, deception, and manipulation, and the inability to feel remorse or guilt.
This is, of course, the ethic promoted by corporations. It is the ethic of unfettered capitalism. It is the misguided belief that personal style and personal advancement, mistaken for individualism, are the same as democratic equality.
In fact, personal style, defined by the commodities we buy or consume, has become a compensation for our loss of democratic equality. We have a right, in the cult of the self, to get whatever we desire.
We can do anything, even belittle and destroy those around us, including our friends, to make money, to be happy, and to become famous. Once fame and wealth are achieved, they become their own justification, their own morality. How one gets there is irrelevant. Once you get there, those questions are no longer asked.”
My book Empire of Illusion begins in Madison Square Garden at a World Wrestling Entertainment tour. I understood that professional wrestling was the template for our social and political life, but did not know that it would produce a president.
“The bouts are stylized rituals,” I wrote, in what could have been a description of a Trump rally:
“They are public expressions of pain and a fervent longing for revenge. The lurid and detailed sagas behind each bout, rather than the wrestling matches themselves, are what drive crowds to a frenzy.
These ritualized battles give those packed in the arenas a temporary, heady release from mundane lives. The burden of real problems is transformed into fodder for a high-energy pantomime.”
It is not going to get better. The tools to shut down dissent have been cemented into place. Our democracy cratered years ago. We are in the grip of what Søren Kierkegaard called “sickness unto death” — the numbing of the soul by despair that leads to moral and physical debasement. All Trump has to do to establish a naked police state is flip a switch. And he will.
“The worse reality becomes, the less a beleaguered population wants to hear about it,” I wrote at the conclusion of Empire of Illusion, “and the more it distracts itself with squalid pseudo-events of celebrity breakdowns, gossip and trivia. These are the debauched revels of a dying civilization.”
Chris Hedges is a Pulitzer Prize–winning journalist who was a foreign correspondent for 15 years for The New York Times, where he served as the Middle East bureau chief and Balkan bureau chief for the paper. He previously worked overseas for The Dallas Morning News, The Christian Science Monitor and NPR. He is the host of show “The Chris Hedges Report.”
This article is from ScheerPost.
NOTE TO READERS: There is now no way left for me to continue to write a weekly column for ScheerPost and produce my weekly television show without your help. The walls are closing in, with startling rapidity, on independent journalism, with the elites, including the Democratic Party elites, clamoring for more and more censorship. Please, if you can, sign up at chrishedges.substack.com so I can continue to post my Monday column on ScheerPost and produce my weekly television show, “The Chris Hedges Report.”
The views expressed are solely those of the author and may or may not reflect those of Consortium News.
The loss of basic democratic norms began long before Trump, which paved the road to an American totalitarianism. He is the symptom, not the disease. Read here...
The loss of basic democratic norms began long before Trump, which paved the road to an American totalitarianism. He is the symptom, not the disease.
For over two decades, I and a handful of others — Sheldon Wolin, Noam Chomsky, Chalmers Johnson, Barbara Ehrenreich and Ralph Nader — warned that the expanding social inequality and steady erosion of our democratic institutions, including the media, the Congress, organized labor, academia and the courts, would inevitably lead to an authoritarian or Christian fascist state.
My books — American Fascists: The Christian Right and the War on America (2007), Empire of Illusion: The End of Literacy and the Triumph of Spectacle (2009), Death of the Liberal Class (2010), Days of Destruction, Days of Revolt (2012), written with Joe Sacco, Wages of Rebellion (2015) and America: The Farewell Tour (2018) were a succession of impassioned pleas to take the decay seriously. I take no joy in being correct.
“The rage of those abandoned by the economy, the fears and concerns of a beleaguered and insecure middle class, and the numbing isolation that comes with the loss of community, would be the kindling for a dangerous mass movement,” I wrote in American Fascists in 2007.
“If these dispossessed were not reincorporated into mainstream society, if they eventually lost all hope of finding good, stable jobs and opportunities for themselves and their children — in short, the promise of a brighter future — the specter of American fascism would beset the nation. This despair, this loss of hope, this denial of a future, led the desperate into the arms of those who promised miracles and dreams of apocalyptic glory.”
President-elect Donald Trump does not herald the advent of fascism. He heralds the collapse of the veneer that masked the corruption within the ruling class and their pretense of democracy. He is the symptom, not the disease.
The loss of basic democratic norms began long before Trump, which paved the road to an American totalitarianism.
Deindustrialization, deregulation, austerity, unchecked predatory corporations, including the health-care industry, wholesale surveillance of every American, social inequality, an electoral system that is plagued by legalized bribery, endless and futile wars, the largest prison population in the world, but most of all feelings of betrayal, stagnation and despair, are a toxic brew that culminate in an inchoate hatred of the ruling class and the institutions they have deformed to exclusively serve the rich and the powerful.
The Democrats are as guilty as the Republicans.
“Trump and his coterie of billionaires, generals, half-wits, Christian fascists, criminals, racists, and moral deviants play the role of the Snopes clan in some of William Faulkner’s novels,” I wrote in America: The Farewell Tour.
“The Snopeses filled the power vacuum of the decayed South and ruthlessly seized control from the degenerated, former slaveholding aristocratic elites. Flem Snopes and his extended family — which includes a killer, a pedophile, a bigamist, an arsonist, a mentally disabled man who copulates with a cow, and a relative who sells tickets to witness the bestiality — are fictional representations of the scum now elevated to the highest level of the federal government. They embody the moral rot unleashed by unfettered capitalism.”
William Faulkner in 1949. (Library of Congress)
“The usual reference to ‘amorality,’ while accurate, is not sufficiently distinctive and by itself does not allow us to place them, as they should be placed, in a historical moment,” the critic Irving Howe wrote of the Snopeses. “Perhaps the most important thing to be said is that they are what comes afterwards: the creatures that emerge from the devastation, with the slime still upon their lips.”
“Let a world collapse, in the South or Russia, and there appear figures of coarse ambition driving their way up from beneath the social bottom, men to whom moral claims are not so much absurd as incomprehensible, sons of bushwhackers or muzhiks drifting in from nowhere and taking over through the sheer outrageousness of their monolithic force,” Howe wrote.
“They become presidents of local banks and chairmen of party regional committees, and later, a trifle slicked up, they muscle their way into Congress or the Politburo. Scavengers without inhibition, they need not believe in the crumbling official code of their society; they need only learn to mimic its sounds.”
The political philosopher Sheldon Wolin called our system of governance “inverted totalitarianism,” one that kept the old iconography, symbols and language, but had surrendered power to corporations and oligarchs.
Now we will shift to totalitarianism’s more recognizable form, one dominated by a demagogue and an ideology grounded in the demonization of the other, hypermasculinity and magical thinking.
Fascism is always the bastard child of a bankrupt liberalism.
“We live in a two-tiered legal system, one where poor people are harassed, arrested and jailed for absurd infractions, such as selling loose cigarettes — which led to Eric Garner being choked to death by the New York City police in 2014 — while crimes of appalling magnitude by the oligarchs and corporations, from oil spills to bank fraud in the hundreds of billions of dollars, which wiped out 40 percent of the world’s wealth, are dealt with through tepid administrative controls, symbolic fines and civil enforcement that give these wealthy perpetrators immunity from criminal prosecution,” I wrote in America: The Farewell Tour.
Chicago protesters on Dec. 4, 204, after a Staten Island grand jury cleared NYPD Officer Daniel Pantaleo for killing Eric Garner with a prohibited chokehold. (Samantha Lotti, Wikimedia Commons, CC BY-SA 4.0)
The utopian ideology of neoliberalism and global capitalism is a vast con. Global wealth, rather than being spread equitably, as neoliberal proponents promised, was funneled upward into the hands of a rapacious, oligarchic elite, fueling the worst economic inequality since the age of the robber barons.
The working poor, whose unions and rights were stripped from them and whose wages have stagnated or declined over the past 40 years, have been thrust into chronic poverty and underemployment.
Their lives, as Barbara Ehrenreich chronicled in Nickel and Dimed, are one long, stress-ridden emergency. The middle class is evaporating. Cities that once manufactured products and offered factory jobs are boarded up-wastelands.
Prisons are overflowing. Corporations have orchestrated the destruction of trade barriers, allowing them to stash $1.42 trillion in profits in overseas banks to avoid paying taxes.
Neoliberalism, despite its promise to build and spread democracy, swiftly gutted regulations and hollowed out democratic systems to turn them into corporate leviathans.
The labels “liberal” and “conservative” are meaningless in the neoliberal order, evidenced by a Democratic presidential candidate who bragged about an endorsement from Dick Cheney, a war criminal who left office with a 13 percent approval rating.
The attraction of Trump is that, although vile and buffoonish, he mocks the bankruptcy of the political charade.
“The permanent lie is the apotheosis of totalitarianism,” I wrote in America: The Farewell Tour:
“It no longer matters what is true. It matters only what is ‘correct.’ Federal courts are being stacked with imbecilic and incompetent judges who serve the ‘correct’ ideology of corporatism and the rigid social mores of the Christian right.
They hold reality, including science and the rule of law, in contempt. They seek to banish those who live in a reality-based world defined by intellectual and moral autonomy. Totalitarian rule always elevates the brutal and the stupid. These reigning idiots have no genuine political philosophy or goals.
They use clichés and slogans, most of which are absurd and contradictory, to justify their greed and lust for power. This is as true for the Christian right as it is for the corporatists that preach the free market and globalization. The merger of the corporatists with the Christian right is the marrying of Godzilla to Frankenstein.”
The illusions peddled on our screens — including the fictitious persona created for Trump on The Apprentice — have replaced reality.
Politics is burlesque as Kamala Harris’ vapid, celebrity-filled campaign illustrated. It is smoke and mirrors created by the army of agents, publicists, marketing departments, promoters, script writers, television and movie producers, video technicians, photographers, bodyguards, wardrobe consultants, fitness trainers, pollsters, public announcers and television new personalities.
We are a culture awash in lies.
“The cult of the self dominates our cultural landscape,” I wrote in Empire of Illusion:
“This cult has within it the classic traits of psychopaths: superficial charm, grandiosity and self-importance; a need for constant stimulation, a penchant for lying, deception, and manipulation, and the inability to feel remorse or guilt.
This is, of course, the ethic promoted by corporations. It is the ethic of unfettered capitalism. It is the misguided belief that personal style and personal advancement, mistaken for individualism, are the same as democratic equality.
In fact, personal style, defined by the commodities we buy or consume, has become a compensation for our loss of democratic equality. We have a right, in the cult of the self, to get whatever we desire.
We can do anything, even belittle and destroy those around us, including our friends, to make money, to be happy, and to become famous. Once fame and wealth are achieved, they become their own justification, their own morality. How one gets there is irrelevant. Once you get there, those questions are no longer asked.”
My book Empire of Illusion begins in Madison Square Garden at a World Wrestling Entertainment tour. I understood that professional wrestling was the template for our social and political life, but did not know that it would produce a president.
“The bouts are stylized rituals,” I wrote, in what could have been a description of a Trump rally:
“They are public expressions of pain and a fervent longing for revenge. The lurid and detailed sagas behind each bout, rather than the wrestling matches themselves, are what drive crowds to a frenzy.
These ritualized battles give those packed in the arenas a temporary, heady release from mundane lives. The burden of real problems is transformed into fodder for a high-energy pantomime.”
It is not going to get better. The tools to shut down dissent have been cemented into place. Our democracy cratered years ago. We are in the grip of what Søren Kierkegaard called “sickness unto death” — the numbing of the soul by despair that leads to moral and physical debasement. All Trump has to do to establish a naked police state is flip a switch. And he will.
“The worse reality becomes, the less a beleaguered population wants to hear about it,” I wrote at the conclusion of Empire of Illusion, “and the more it distracts itself with squalid pseudo-events of celebrity breakdowns, gossip and trivia. These are the debauched revels of a dying civilization.”
Chris Hedges is a Pulitzer Prize–winning journalist who was a foreign correspondent for 15 years for The New York Times, where he served as the Middle East bureau chief and Balkan bureau chief for the paper. He previously worked overseas for The Dallas Morning News, The Christian Science Monitor and NPR. He is the host of show “The Chris Hedges Report.”
This article is from ScheerPost.
NOTE TO READERS: There is now no way left for me to continue to write a weekly column for ScheerPost and produce my weekly television show without your help. The walls are closing in, with startling rapidity, on independent journalism, with the elites, including the Democratic Party elites, clamoring for more and more censorship. Please, if you can, sign up at chrishedges.substack.com so I can continue to post my Monday column on ScheerPost and produce my weekly television show, “The Chris Hedges Report.”
The views expressed are solely those of the author and may or may not reflect those of Consortium News.
_______________________________________________________________________________________
JOHN KIRIAKOU:
Cellphone Seizures & the Courts
We cannot trust that federal agents will just be looking for child pornographers or international drug traffickers when they demand access to our electronics at the border. Read here...
After years of conflicting decisions by federal district courts across the country on whether Customs and Border Protection (CBP) agents can search your cell phone and laptop at ports of entry, the Seventh Circuit Court of Appeals has ruled that, “the routine inspection and search of a traveler’s electronics, or for that matter, any other type of property, at the border may be conducted without a warrant, probable cause, or even individualized suspicion of wrongdoing.”
In reaching the decision, the court agreed with several other circuit courts, but put itself at odds with others and many (lower) federal district courts around the country.
The issue moved quickly to the Supreme Court, which upheld the Seventh Circuit’s decision this month. This is, sadly, despite the fact that the Fourth Circuit ruled earlier this year that “CBP agents need at least reasonable suspicion of a crime to search cell phones” and the Ninth Circuit agreed with that ruling.
The present case stems from the 2016 arrest of Marcos Mendez at Chicago’s O’Hare International Airport. Mendez is most certainly not the poster boy for protection of Americans’ civil liberties, but this is the hand that civil libertarians have been dealt in the case.
Mendez arrived at O’Hare following a trip to Ecuador. Along with his luggage, he carried a personal cellphone, a work cellphone and a work iPad.
Because Mendez had been convicted in 2010 on a charge of indecent solicitation of a child, and because he had a history of international travel to countries where there are weak protections for children, CBP agents pulled him aside and searched his belongings.
Agents used a technology called DOMEX to extract the contents of his phone, where they found thousands of images of child pornography.
Mendez was promptly arrested and charged with multiple counts of possession of child pornography. His attorneys moved to suppress the photos, arguing that they were illegally obtained in violation of the Fourth Amendment.
The federal district court for the Northern District of Illinois denied the motion and, in the end, Mendez pleaded guilty to one count of producing child pornography and was sentenced to six years in prison, but he preserved his right to appeal. The Seventh Circuit now has denied that appeal and the Supreme Court has upheld the conviction.
At first glance, the Circuit Court’s reasoning seems to make some sense. The Court wrote that,
“Congress, since the beginning of our government, has granted the Executive plenary authority to conduct routine searches and seizures at the border, without probable cause or a warrant, in order to prevent the introduction of contraband into this country. This rule is based on the longstanding right of the sovereign to protect itself by stopping and examining persons and property crossing into this country.”
In May 2005, Vice President Dick Cheney, center, observes a U.S. Customs and Border Protection demonstration of some of the technology being used to train law enforcement personnel at the Federal Law Enforcement Training Center in Glynco, Georgia. (White House, David Bohrer, Wikimedia Commons, Public domain)
In almost any normal circumstance, I would applaud the arrest, conviction, and imprisonment of a child pornographer. The country — and our children — are safer with Marcos Mendez in prison. I can’t imagine that anybody will miss him for the next six years.
Abuse of Surveillance Power
But that’s not really the point here. The point is that there is no way that we can trust that our government, in the form of CBP agents, F.B.I. agents, or any other federal “agent,” will solely be on the lookout for child pornographers or international drug traffickers when they demand access to our electronics at the border.
I travel internationally at least three times a year. And at least 50 percent of the time I’m pulled into secondary when I return and try to get through U.S. immigration.
I can only speculate that it is because I have a conviction from more than a decade ago as a result of blowing the whistle on the C.I.A.’s torture program.
I always, always refuse to answer CBP’s questions without an attorney present, and my mantra is “you cannot articulate any crime that I might be suspected of having committed and you can’t stop me from reentering my own country.”
They always eventually relent. The process has taken as little as 45 minutes and as long as six hours. It’s a serious pain in the ass. But the principle is worth the inconvenience.
With that said, never have I been asked to turn over my electronics. That could change now with this new court decision.
What happens now if the government doesn’t like your political opinions? Will they take your cellphone or laptop and go through it? Will they take your texts out of context and then work to build a case against you?
What if you’ve exchanged privileged communications with your attorney or your doctor or your psychiatrist? How would that information be protected? What if you have called an abortion clinic for a consultation?
What about your communications on apps like Signal or Telegram or Viber that were supposed to be private? Is nothing sacrosanct?
I recently became aware of a new cellphone available for sale with a “kill switch.” You literally hit the switch as you are turning the phone over to the CBP and it deletes everything on it. I think that’s where we’re all headed next.
After all, if the courts won’t protect us, we have to protect ourselves.
John Kiriakou is a former C.I.A. counterterrorism officer and a former senior investigator with the Senate Foreign Relations Committee. John became the sixth whistleblower indicted by the Obama administration under the Espionage Act — a law designed to punish spies. He served 23 months in prison as a result of his attempts to oppose the Bush administration’s torture program.
The views expressed are solely those of the author and may or may not reflect those of Consortium News.
We cannot trust that federal agents will just be looking for child pornographers or international drug traffickers when they demand access to our electronics at the border. Read here...
After years of conflicting decisions by federal district courts across the country on whether Customs and Border Protection (CBP) agents can search your cell phone and laptop at ports of entry, the Seventh Circuit Court of Appeals has ruled that, “the routine inspection and search of a traveler’s electronics, or for that matter, any other type of property, at the border may be conducted without a warrant, probable cause, or even individualized suspicion of wrongdoing.”
In reaching the decision, the court agreed with several other circuit courts, but put itself at odds with others and many (lower) federal district courts around the country.
The issue moved quickly to the Supreme Court, which upheld the Seventh Circuit’s decision this month. This is, sadly, despite the fact that the Fourth Circuit ruled earlier this year that “CBP agents need at least reasonable suspicion of a crime to search cell phones” and the Ninth Circuit agreed with that ruling.
The present case stems from the 2016 arrest of Marcos Mendez at Chicago’s O’Hare International Airport. Mendez is most certainly not the poster boy for protection of Americans’ civil liberties, but this is the hand that civil libertarians have been dealt in the case.
Mendez arrived at O’Hare following a trip to Ecuador. Along with his luggage, he carried a personal cellphone, a work cellphone and a work iPad.
Because Mendez had been convicted in 2010 on a charge of indecent solicitation of a child, and because he had a history of international travel to countries where there are weak protections for children, CBP agents pulled him aside and searched his belongings.
Agents used a technology called DOMEX to extract the contents of his phone, where they found thousands of images of child pornography.
Mendez was promptly arrested and charged with multiple counts of possession of child pornography. His attorneys moved to suppress the photos, arguing that they were illegally obtained in violation of the Fourth Amendment.
The federal district court for the Northern District of Illinois denied the motion and, in the end, Mendez pleaded guilty to one count of producing child pornography and was sentenced to six years in prison, but he preserved his right to appeal. The Seventh Circuit now has denied that appeal and the Supreme Court has upheld the conviction.
At first glance, the Circuit Court’s reasoning seems to make some sense. The Court wrote that,
“Congress, since the beginning of our government, has granted the Executive plenary authority to conduct routine searches and seizures at the border, without probable cause or a warrant, in order to prevent the introduction of contraband into this country. This rule is based on the longstanding right of the sovereign to protect itself by stopping and examining persons and property crossing into this country.”
In May 2005, Vice President Dick Cheney, center, observes a U.S. Customs and Border Protection demonstration of some of the technology being used to train law enforcement personnel at the Federal Law Enforcement Training Center in Glynco, Georgia. (White House, David Bohrer, Wikimedia Commons, Public domain)
In almost any normal circumstance, I would applaud the arrest, conviction, and imprisonment of a child pornographer. The country — and our children — are safer with Marcos Mendez in prison. I can’t imagine that anybody will miss him for the next six years.
Abuse of Surveillance Power
But that’s not really the point here. The point is that there is no way that we can trust that our government, in the form of CBP agents, F.B.I. agents, or any other federal “agent,” will solely be on the lookout for child pornographers or international drug traffickers when they demand access to our electronics at the border.
I travel internationally at least three times a year. And at least 50 percent of the time I’m pulled into secondary when I return and try to get through U.S. immigration.
I can only speculate that it is because I have a conviction from more than a decade ago as a result of blowing the whistle on the C.I.A.’s torture program.
I always, always refuse to answer CBP’s questions without an attorney present, and my mantra is “you cannot articulate any crime that I might be suspected of having committed and you can’t stop me from reentering my own country.”
They always eventually relent. The process has taken as little as 45 minutes and as long as six hours. It’s a serious pain in the ass. But the principle is worth the inconvenience.
With that said, never have I been asked to turn over my electronics. That could change now with this new court decision.
What happens now if the government doesn’t like your political opinions? Will they take your cellphone or laptop and go through it? Will they take your texts out of context and then work to build a case against you?
What if you’ve exchanged privileged communications with your attorney or your doctor or your psychiatrist? How would that information be protected? What if you have called an abortion clinic for a consultation?
What about your communications on apps like Signal or Telegram or Viber that were supposed to be private? Is nothing sacrosanct?
I recently became aware of a new cellphone available for sale with a “kill switch.” You literally hit the switch as you are turning the phone over to the CBP and it deletes everything on it. I think that’s where we’re all headed next.
After all, if the courts won’t protect us, we have to protect ourselves.
John Kiriakou is a former C.I.A. counterterrorism officer and a former senior investigator with the Senate Foreign Relations Committee. John became the sixth whistleblower indicted by the Obama administration under the Espionage Act — a law designed to punish spies. He served 23 months in prison as a result of his attempts to oppose the Bush administration’s torture program.
The views expressed are solely those of the author and may or may not reflect those of Consortium News.
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