Authored by Jacob Hornberger via The Future of Freedom Foundation,

The terrorist attacks on the World Trade Center and the Pentagon on September 11, 2001, were a watershed event for the United States, not only because of the large death toll and property destruction but, more important, because they spelled the death knell for American liberty.

Americans had already lost a large portion of their freedom when the federal government was converted into what is called a “welfare state,” a governmental system that is based on the concept of mandatory charity. Examples of mandatory-charity programs include Social Security, Medicare, Medicaid, farm subsidies, education grants, corporate bailouts, foreign aid, and every other program by which the government takes money from people to whom it belongs and gives it to people to whom it does not belong.

There is no way to reconcile a system of mandatory charity with the principles of a free society. A genuinely free society is one in which people are free to keep everything they earn and decide for themselves what to do with their own money. An unfree society is one in which the government mandates that people be good and caring to others.

In 1913, Americans brought into existence the progressive income tax, which became the primary engine for funding America’s welfare state. To enforce the collection of the tax, Americans called into existence the IRS, which became one of the most tyrannical agencies in U.S. history. In the same year, the Federal Reserve was established, a central bank that would ultimately debase and destroy the gold-coin monetary system that the Constitution established and that had been America’s monetary system for well over a century.

Prior to the 9/11 attacks, Americans had lost another large portion of their freedom with the war on drugs, a governmental program that jails or fines people for possessing or distributing substances that the government doesn’t approve of. As the drug war failed to achieve its goal of a drug-free society, the government initiated an ever-increasing array of harsh enforcement measures that have further contributed to the destruction of freedom, including mandatory minimum sentences, asset-forfeiture laws, no-knock raids, and warrantless searches and seizures.

There is no way one can reconcile drug laws with the principles of a free society. In a genuinely free society, people have the right to ingest whatever they want, no matter how harmful, dangerous, or destructive a substance might be.

Americans have also lost a large portion of their freedom through government central planning and regulation of economic activity. Examples include trade and immigration controls, the Federal Reserve, and public schooling. There is no way one can reconcile socialist central planning and economic regulation with freedom. In a genuinely free society, people plan their own lives and coordinate their activities with others in a free-market environment.

It is not a coincidence that for the first 125 years of American life, there was no income tax, IRS, Social Security, Medicare, Medicaid, farm subsidies, education grants, drug laws, central planning, economic regulation, public schooling, Federal Reserve, or other parts of what can also be labeled the “paternalistic state.” Our American ancestors understood that those things violate the principles of liberty.

The federal government’s response to the 9/11 attacks completed the destruction of American liberty. Seizing on the attacks as an opportunity to expand power at the expense of freedom, U.S. officials, especially those in the national-security branch of the government, ended up with omnipotent power over the American people. When a regime wields omnipotent power, there is no way that people in that society can legitimately be considered free.

Irreconcilables

Owing to the 9/11 attacks, we now live in a society in which a vast, permanent, and ever-growing military establishment wields the power to take Americans into custody and incarcerate them in military dungeons or detention centers for as long as the military desires. All that military officials have to do is label the American detainee a “terrorist” or a “threat to national security.” Once that designation is made, there is nothing the person can do about it. He will find no relief in the federal courts because the courts have made it clear that they are not about to interfere with military operations, especially during time of war, including the ongoing, never-ending, post–9/11 “war on terrorism.”

That is what the José Padilla case was all about. That case established the power of the military to take Americans into custody and keep them incarcerated as part of the federal government’s “war on terrorism.” Since the war on terrorism is going to last for decades, perhaps forever, the military detention of American citizens as terrorists or as threats to national security will also last for decades or forever.

It is true that the military is not currently exercising its power by incarcerating Americans in military dungeons or detention centers. But whether a tyrannical power is being exercised is not the test of a free society. The test is whether the government wields omnipotent powers, ones that can be exercised later on during an “emergency” or “crisis.” If the government wields omnipotent powers, even if it isn’t exercising them, there is no way that people in such a society can legitimately be considered free.

For example, the Fifth Amendment to the U.S. Constitution expressly prohibits the federal government from depriving a person of liberty without due process of law. “Due process” is a phrase that stretches back to Magna Carta in 1215, when the barons of England forced their king to acknowledge that his powers over the English people were limited. Due process entails notice and trial. Thus, the Fifth Amendment prohibits the federal government from depriving people, including Americans, of liberty without notice and trial.

But as a consequence of the 9/11 attacks, that is precisely what the Pentagon now wields the power to do as part of its ongoing, never-ending war on terrorism. Despite the Fifth Amendment, the military now has the power to take Americans into custody and jail them forever without notice or trial, simply by labeling them “terrorists” or “threats to national security.”

As a consequence of the 9/11 attacks, the American people also now live under a government that wields the power to assassinate them, again without notice or trial. It is virtually impossible to find a more tyrannical power than the power to kill people, including a government’s own citizenry. That’s what the post–9/11 case of Anwar al-Awlaki was about — the power of the federal government to kill American citizens who are labeled “terrorists” or “threats to national security.” The federal judiciary has made it clear that as long as the government is waging its ongoing, never-ending, post–9/11 war on terrorism, the federal courts will not interfere with this extraordinary power.

Once again, the fact that U.S. officials are currently exercising this power primarily against foreigners does not affect the destruction of freedom here at home. A free society is measured not by whether a certain power is being exercised but rather by whether the government even possesses that power. That’s why the Fifth Amendment expressly prohibits the federal government from killing anyone without due process of law, which, again, means notice and trial. The idea behind that provision was that freedom necessarily entails a government that does not possess the power to assassinate people.

The aftermath of the 9/11 attacks also eviscerated the Fourth Amendment to the Constitution. Even before the attacks, the federal government had made inroads on the search-and-seizure provision of that Amendment by lowering the probable-cause requirement for searches entailing the gathering of foreign intelligence. That’s what the super-secret FISA court was all about. Meeting in secret and scared to death to second-guess any warrant request entailing national security, the FISA judges effectively became rubber-stamps for the national-security establishment. But at least there was a thin barrier between domestic criminal investigations and foreign-intelligence investigations.

That barrier came crashing down in the aftermath of the 9/11 attacks. That’s what the USA PATRIOT Act accomplished. It enabled U.S. officials to secure search warrants at a reduced standard for both intelligence investigations and criminal investigations and to do it before a super-secret court whose decisions could not, as a practical matter, be challenged by those who were being targeted for secret surveillance.

The 9/11 attacks led to expanded mass-surveillance powers for the NSA, enabling this secretive agency to conduct warrantless surveillance on the American people. Operating under a misguided concept of patriotism involving unswerving allegiance to the government, some of America’s telecommunications companies were induced to illegally betray their clients by illegally providing their personal data to federal officials.

It is still impossible for Americans to know precisely what the NSA is doing to spy on them, given the highly secretive nature of the agency and the refusal of the federal courts to permit any piercing of its operations, especially since NSA officials know that nothing bad will happen to them if they are later caught violating the law or lying about it to prevent disclosure. That’s what the James Clapper episode was all about. When that director of National Intelligence was caught lying to Congress about illegal surveillance of the American people, neither Congress nor the Justice Department dared to seek a criminal indictment against him.

There is no way to reconcile a society in which a regime wields the omnipotent power to conduct secret surveillance on the citizenry with a genuinely free society. Freedom necessarily entails an absolute protection of privacy.

And then there is torture, which, although conducted by the military, is actually the specialty of the Central Intelligence Agency, which is the third component of the national security establishment (the other two being the military and the NSA). While the CIA had engaged in torture before the 9/11 attacks, it was always done secretly and with the understanding that the torture was illegal. With the 9/11 attacks, the CIA and the Pentagon were effectively given a license to torture people, including Americans, with impunity.

Both Pentagon and CIA officials know that they can torture anyone they want with impunity. As long as the person being tortured is labeled a “terrorist” or a “threat to national security,” military officials and CIA officials know that no one is going to be prosecuted for torture. Indeed, when the CIA knowingly, intentionally, and deliberately destroyed its videotapes depicting its torture of people, it did so with full certainty that no one would be prosecuted for destroying evidence of criminal misconduct. The CIA is simply too powerful for that.

It is worth noting that the post–9/11 power to torture people extends to American citizens. That principle was established in the José Padilla case, where the military knowingly, intentionally, and deliberately — and with impunity — subjected Padilla to psychological torture with the aim of causing him permanent mental damage.

It is impossible to reconcile a system in which the government wields the omnipotent power to torture people with the principles of a free society. Freedom necessarily entails a system in which the government lacks even the power to torture. That is why the Eighth Amendment expressly prohibits the federal government from inflicting “cruel and unusual punishments” on people.

The way we were

It wasn’t always this way in America. For more than 150 years, the American people lived under a governmental system in which federal officials lacked the power to deprive them of life, liberty, or property without due process of law and the power to torture them. While federal officials would, from time to time, violate the express restrictions on power enumerated in the Constitution and the Bill of Rights, everyone understood that such violations constituted breaches of the law rather than an established legal structure within the law.

In fact, if the proponents of the Constitution had told the American people after the Constitutional Convention that the Constitution was bringing into existence a national-security state in which federal officials would wield the power to assassinate, indefinitely detain, spy on, and torture them, as well as a welfare state that would mandate charity, to put them into jail for drug possession, and to centrally control and manage their economic activity, they would have summarily rejected the deal and continued operating under the Articles of Confederation, the governmental system under which they had been operating and one in which the powers of the federal government were so weak that it didn’t even have the power to tax.

That’s how our American ancestors who established this country wanted it. They understood that the greatest threat to the freedom and well-being of the citizenry lies with their own government. The reason they accepted the Constitution is that they were assured that it would bring into existence a government of few and limited powers — that is, only those that were enumerated within the document itself. To make certain that federal officials got the point, the American people demanded that the Constitution immediately be amended to expressly prohibit federal officials from destroying their rights and liberties.

For more than 100 years, there was no mandatory charity, including Social Security, Medicare, Medicaid, farm subsidies, education grants, and foreign aid, income taxation, IRS, economic regulations, minimum-wage laws, price controls, central management of economic activity, immigration controls, Federal Reserve, fiat (i.e., paper) money, public (i.e., government) schooling, drug laws, gun control, and most of the federal departments, agencies, and programs under which Americans today live.

More important, there was no Pentagon, vast military establishment, foreign military bases, CIA, NSA, or FBI. Therefore, there were no endless undeclared wars, torture, indefinite detention, spying on the citizenry, foreign military bases, coups, conscription, draft registration, alliances with foreign dictatorships, foreign aid, or assassination programs.

Americans had chosen a type of governmental system known as a limited-government republic, which is the opposite of a welfare state and a national-security state. Americans kept everything they earned and decided for themselves what to do with it. They weren’t subject to indefinite detention, torture, conscription, regulations, drug laws, secret surveillance, or endless undeclared wars. The citizens, not the federal government, were sovereign.

Losing liberty

That all came to an end, first with the adoption of the progressive income tax and the Federal Reserve, followed by the conversion of the federal government to a welfare state and, later, the conversion to a national-security state. Those two conversions began the road toward the destruction of American liberty, a destruction that was completed after the 9/11 attacks.

The justification that Americans were given for the conversion of the federal government from a limited-government republic to a national-security state was that the federal government needed to wage a Cold War against America’s World War II partner, the Soviet Union. Once the Cold War was over, however, the Pentagon, CIA, and NSA opposed the reconversion of the federal government to a limited-government republic.

Instead, after the Cold War suddenly and unexpectedly ended, the Pentagon and the CIA went into the Middle East and began wreaking death and destruction in that part of the world, knowing full well that such actions were likely to produce massive anger and rage that could manifest itself in terrorist counterstrikes. They waged the Persian Gulf War, killing countless thousands of Iraqis. They intentionally bombed the water- and sewage-treatment plants in Iraq, with the aim of spreading infectious illness among the populace. They imposed and enforced one of the most brutal sanctions regimes in history, one that killed hundreds of thousands of Iraqi children. They openly declared that the deaths of half a million Iraqi children were “worth it.” They maintained “no-fly zones” over Iraq, which they used to kill more Iraqis. They stationed U.S. troops near Muslim holy lands. They unconditionally supported the Israeli government.

They knew exactly what they were doing. In his pre–911 book Blowback: The Costs and Consequences of American Empire, the noted scholar Chalmers Johnson, warned that if they continued with their interventionist policies in the Middle East, the result would be a major terrorist attack on American soil. Here at FFF, we were publishing op-eds prior to the 9/11 attacks saying the same thing. Others were issuing the same warning.

Moreover, U.S. officials were warned by actual events. There were the pre–9/11 terrorist attacks on the World Trade Center, the USS Cole, and the U.S. embassies in Kenya and Tanzania, all of which, the terrorists had openly declared, were motivated by the death and destruction that U.S. officials were wreaking in their post–Cold War interventions in the Middle East.

Yet none of those pre–9/11 warnings and attacks induced U.S. officials to cease and desist their interventionist policies. When the 9/11 attacks came, U.S. officials were being clearly disingenuous when they declared that the terrorists had been motivated by hatred for America’s freedom and values.

It was no surprise when U.S. officials seized upon the 9/11 attacks as an opportunity to complete the destruction of American liberty. Of course, that’s how people throughout history have lost their liberty at the hands of their own governments — during crises and emergencies, when fearful people are eager and willing to trade their liberty for “security” and government officials are eager and willing to oblige them.

What must be done to regain our liberty?