07 January 2014

By Jacob G. Hornberger

One of the horrible consequences of the national-security state apparatus that was grafted onto America's governmental system is how it has oftentimes placed Americans in the position of choosing between morality and obedience to the law.

Just this week, we have been reminded of the conflict between morality and law back in 1971, during the height of the Cold War, the "war" that was used to justify the existence of the national-security state apparatus in the first place.

The federal government was illegally targeting American citizens who were protesting and demonstrating against the national-security state's war in Vietnam. In a free society, people are free to protest and demonstrate against anything they want. Freedom entails letting the government know that one is opposed to what it is doing. Freedom entails having the right to persuade government that it is doing wrong and to change direction. Freedom entails persuading other people to take a stand against government wrongdoing.

It's the government's job to leave protestors and demonstrators alone or to protect their exercise of freedom in the event other people try to interfere with their free-speech activities.

That's not what the federal government did in 1971. It went after antiwar activists. Its position was: We're at war against the communists. You're either with us or you're against us. If you're protesting and demonstrating against our war, that puts you on the side of the communists. Since you're with the communists, you're part of the enemy forces. You're dividing our country. We need to target you. We need to destroy you.

So, the feds started engaging in illegal activity against peaceful people who were doing nothing more than opposing the national-security state's illegal and immoral war in Vietnam. They began spying on them, conducting surveillance on them, tracking them, infiltrating them, and keeping files on them, all the while falsely denying that they were engaged in such illegal activity.

So, a group of antiwar activists broke into an FBI office and stole FBI files that showed that the FBI had been lying the entire time and that it in fact had been engaged in illegal surveillance of American citizens.

The irony is that while the national-security state was fighting a war thousands of miles away supposedly to keep the United States from falling to the communists, what it was doing to American protestors and demonstrators was precisely what communist regimes were doing to their own citizens. What's fascinating is that while national-security state officials could recognize the evil nature of secret surveillance by communist regimes, they couldn't recognize the evil nature of what they themselves were doing. When the communists did it, it was considered bad. When U.S. officials did it, it was considered good.

Even today, there are federal officials and former federal officials who say that what those antiwar protestors did was wrong and that they should have been punished for it. But why is it morally wrong for citizens to break the law when breaking the law is necessary to disclose government illegality? If the government has chosen to break the law and is falsely denying it, then why shouldn't citizens be praised for breaking the law to disclose government's illegal conduct?

Of course though, the more fundamental question is: Why should the government be involved in immoral or illegal activity? Yet, isn't immoral and illegal activity the very essence of the national-security state apparatus that has now become a permanent part of America's governmental structure, especially since much of what it does is conducted in secret?

Consider the Edward Snowden revelations of a massive super-secret surveillance scheme by the U.S. national-security state on the entire American populace, not to mention millions of people all over the world. Where do they get the constitutional authorization for that? Is there a constitutional provision that empowers them to do that?

No! The only justification is the same one that the national-security state has always cited for its exercise of secret, covert operations: "national security," a term that isn't even found in the Constitution and has no objective meaning.

Why shouldn't the American people decide whether they want to be spied on in this way? Isn't the citizenry supposed to be the ones in control? Aren't federal officials supposed to be mere servants, with the citizenry as their bosses?

So, the only way to disclose what the servants were doing to their bosses, and without their consent or knowledge, was for Edward Snowden to reveal to the American people what the servants were doing to their bosses. For that, he's been condemned and vilified by the U.S. national-security state. They want to punish the guy, perhaps even execute him for being a "traitor," in the same way that their predecessors in 1971 wanted to punish those antiwar activists who burglarized that FBI office to get the files that showed that the FBI was lying and was in fact engaged in illegal activity.

In moral terms, Snowden did the right thing. Sure, he violated some secrecy agreement that he signed when he began working for the government. But which has paramount importance — some secrecy contract or the disclosure of a dark, immoral, illegal secret that entails wrongful conduct by the government?

There is circumstantial evidence that the Pentagon and the CIA were involved in the assassination of two American citizens, Charles Horman and Frank Teruggi, during the Chilean coup in 1973. If a CIA agent, in a crisis of conscience, had disclosed the assassination scheme beforehand and saved the lives of Horman and Teruggi, there is no doubt that U.S. officials would have prosecuted them and punished him for breaking his CIA secrecy agreement, especially since the assassination of Horman and Teruggi were part of a covert operation involving "national security," the term that has come to immunize national-security state officials from criminal prosecution. Indeed, neither the Justice Department nor Congress has ever dared to investigate the Horman and Teruggi murders.

From a moral standpoint, wouldn't that have been a great thing for that CIA agent to do? By breaking his secrecy agreement and disclosing the assassination plot, that agent would have saved the lives of two innocent Americans. Isn't that something that would have been worth praising, not condemning?

The real question though is: Why is our government involved with assassinating people, or spying on people, or torturing people, or involving America in destructive foreign wars where American military personnel are called upon to kill and die for nothing, or with so many other immoral actions? Is this really what the Founding Fathers intended when they called the federal government into existence?

When one examines issues such as these, everything ends up pointing to the national-security state apparatus that was grafted onto our governmental system after World War II. The Cold War, the irrational fear of communists and communists, the Korean War, the Vietnam War, foreign aid to dictators, sanctions, embargoes, regime change operations, assassinations, invasions, the irrational fear of terrorists and terrorism, the war on terrorism, Gitmo, indefinite detention, torture, the TSA, the Patriot Act, and Homeland Security.

The common denominator of it all is the omnipotent national-security state military empire whose officials now wield totalitarian-like powers with impunity and immunity. People should be praised for breaking the law to reveal its wrongdoing. But the better route — the moral route — would be to dismantle it entirely and restore a limited-government constitutional republic to our land.

Jacob G. Hornberger is founder and president of The Future of Freedom Foundation. He was born and raised in Laredo, Texas, and received his B.A. in economics from Virginia Military Institute and his law degree from the University of Texas. He was a trial attorney for twelve years in Texas. He also was an adjunct professor at the University of Dallas, where he taught law and economics. In 1987, Mr. Hornberger left the practice of law to become director of programs at the Foundation for Economic Education. He has advanced freedom and free markets on talk-radio stations all across the country as well as on Fox News' Neil Cavuto and Greta van Susteren shows and he appeared as a regular commentator on Judge Andrew Napolitano's show Freedom Watch.

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