Perils of an unchecked executive

Jonathan Hafetz

09:03 AM EDT on Tuesday, May 8, 2007

JONATHAN HAFETZ

NEW YORK -- REMARKABLY, President Bush has not learned any lessons from the excesses of his “war on terrorism,” now in its sixth year. Even though the president’s own secretaries of state and defense have warned that the prison at Guantánamo is undermining America’s credibility, the president continues to assert the powers of a king by detaining people without charge and without court review whenever he deems them “enemy combatants.” This strategy contradicts America’s core values and undermines the fight against terrorism.

In 2004, the Supreme Court sensibly defined the term “enemy combatant” as an enemy solider who engages in combat against American troops on an actual battlefield. The court also ruled that the United States must provide a legitimate process to make sure we are detaining the right people, not innocent tourists, embedded journalists, or local aid workers swept up amid the chaos of war where mistakes are easily made.

The administration, nevertheless, has ignored these limits in three important ways. First, it has defined “enemy combatant” in terms so sweeping that it would allow the president to lock up a little old lady in Switzerland who gives money to a charity which, unbeknown to her, is secretly funneling money to terrorist organizations.

Second, it has failed to follow the Geneva Conventions and the U.S. military’s own regulations which require a prompt hearing for detainees seized on the battlefield to separate innocent civilians from actual combatants. To make matters worse, only 5 percent of the detainees at Guantánamo were captured by U.S. forces; 86 percent were taken into custody by Pakistani or Afghan forces at a time when the U.S. was offering large financial bounties for the capture of any Arab terrorist.

And third, the administration has blocked review of its detention practices by denying habeas corpus, which requires a court to examine the factual and legal basis for a prisoner’s confinement. As a result, the administration has prevented any judge from determining whether the individuals it has jailed are actually terrorists — a position that speaks volumes about the government’s lack of confidence in its evidence.

Regrettably, last fall Congress increased, rather than curbed, the president’s power grab by passing the Military Commissions Act. This act not only weakens longstanding rules against illegal detention and torture, but also prevents the federal courts from enforcing those rules by eliminating habeas corpus.

Unchecked executive detention has created a prison beyond the law at Guantánamo, where nearly four hundred individuals remain detained without charge or due process. Though labeled as the “worst of the worst,” according to the government’s own data, only 18 percent of the detainees at Guantánamo have any definitive affiliation with al-Qaida or the Taliban. But since the government never has to present its evidence in a court of law, errors go uncorrected.

The president’s quest for ever greater power is not limited to Guantánamo, but extends to the United States. Mr. Bush maintains that he can jail without charge an individual living in this country, whether an American citizen or not. As a result, a college student whose former roommate later joins the Taliban, a chief executive who donates money to an organization he believes is helping to build hospitals in the Middle East or a person who teaches English to the child of an al-Qaida member, all may be permanently imprisoned as “enemy combatants” without any proof of guilt.

To be sure, it is difficult to imagine any judge tolerating this state of affairs. But the problem is that without habeas corpus no judge can ever review the government’s evidence, leaving detainees to languish in prison based solely on executive say-so.

The issue is not whether the president acts in good-faith when he deprives people of their liberty. The genius of our Constitution is that it does not entrust any president with that awesome power but instead sets up a system of checks and balances that prevents any person from placing himself above the law.

The president’s “trust-me” approach to civil liberties does not just defy America’s best traditions. It robs the fight against terrorism of the legitimacy and credibility it needs to succeed.

Over the last five years, Guantánamo has become a lightning rod for criticism and short-hand for the abuse of power. Our closest allies have denounced Guantánamo as a “shocking affront to the principles of democracy,” while Secretary of Defense Robert Gates recently called for the prison’s closure.

Guantánamo makes it more difficult for America to demand that other countries obey the rules by showing we do not follow those rules ourselves. The same goes for the practice of “extraordinary rendition” in which the United States hands individuals over to countries like Syria and Egypt for torture. Like the detentions at Guantánamo, such practices put Americans at risk by encouraging other nations to treat our citizens as we have treated theirs.

The damage wrought by the administration’s wrong-headed policies cannot be remedied overnight but will require a concerted effort to develop a rights-respecting approach to counter-terrorism. The first step is an easy and obvious one: Restore habeas corpus, the greatest safeguard of individual liberty and check upon arbitrary executive power.

Restoring habeas will demonstrate that America gives all prisoners a meaningful chance to prove their innocence. Nothing less can suffice in a country committed to due process and the rule of law.

Jonathan Hafetz directs litigation for the Liberty and National Security Project of the Brennan Center for Justice at New York University Law School, is counsel to several detainees and is writing a book on post-9/11 detentions to be published by NYU Press.

Poll: Americans Feel Bush Policy Too Skewed Against Liberty

TERROR WARS
Poll Shows Security Imbalance In US

by Shaun Waterman
UPI Homeland and National Security Editor

Washington (UPI) April 26, 2007

By a large margin, Americans feel the Bush administration has tipped the balance of security against liberty too far towards security, a new UPI/Zogby polls shows.

But the public remains closely divided on the president's most controversial security programs, favoring by small margins warrantless wiretaps against terror suspects and the broad mining by federal agencies of personal data about U.S. citizens.

When asked whether the Bush administration had "found the right balance between personal security and personal freedom," only one-third (33 percent) agreed. Nearly half (49 percent) agreed instead that the "administration has tipped the balance too far towards security."

Only 7 percent agreed with the third option, that the balance was tipped "too far towards freedom, leaving our security weak."

Asked about specific security programs run by the administration, Americans were generally more supportive of those targeting foreigners.

Two-thirds (66 percent) agreed that the U.S. government had the right to collect personal data about foreign airline passengers coming to the country, which has been a source of ongoing friction with the European Union.

Fifty-five percent agreed that the Terrorism Surveillance Program was "a necessary and legal tool to protect Americans," and 42 percent disagreed. Under the program, the National Security Agency conducts court-authorized but warrantless surveillance of international communications by Americans with suspected terrorists.

But 62 percent also agreed with the proposition that "the government should always be required to get a warrant or court order before monitoring the phone conversations or e-mails of American citizens or legal immigrants."

Americans also appeared closely divided on the merits of federal agencies analyzing vast collections of personal data to look for patterns and connections that might reveal terrorist activity.

Asked about such techniques, known as data-mining, 50 percent agreed that U.S. agencies should be allowed to use them on personal data "like credit card transactions, charitable donations and travel histories," while 46 percent disagreed.

Men were more likely than women to believe that the administration had got the balance between security and freedom right (39 percent for men; 28 percent for women). Women were more likely than men to believe that the balance had tipped too far toward security (53 percent, compared with 45 percent for men).

When broken down by the self-professed ideology of respondents, the survey reveals a predictable near-unanimity among progressives and liberals that the balance has tipped too far towards security. Sixty percent of moderates feel the same way -- 11 percent more than the population as a whole.

Looking at party affiliation, 69 percent of Republicans believe the administration has the balance right, but only 28 percent of independents agree. Fifty-three percent of independents believe the balance is skewed too far to security, 4 percent more than the general population.

The idea that the administration had struck a good balance grew more popular with the increasing age of the respondents. Among 18- to 24-year-olds, 64 percent believed the balance was skewed to security, and only 18 percent thought the administration had it right.

But that balance tilts gradually through increasing age ranges, until among those 70 and over, 49 percent believe the balance to be right and only 35 percent see it as tilted to security.

Similar age-related variations can be seen in opinions about individual programs. Only 38 percent of 18- to 24-year-olds support the Terrorism Surveillance Program, compared with 55 percent of the general population and 72 percent of those 70 and older.

There was also a pronounced gender gap. Sixty percent of men believed the program was "legal and necessary," compared with only 50 percent of women.

Independents were almost as supportive of the program as the general population (53 percent, compared to 55), but only 20 percent of Democrats see it as legal and necessary, compared with 93 percent of Republicans.

There was lukewarm support for an administration proposal, contained in the intelligence authorization bill currently stalled in the Senate, to suspend certain provisions of the Privacy Act to facilitate counter-terrorism information sharing.

Only 39 percent of respondents agreed with that idea, and 54 percent opposed it. Support was much higher among Republicans (68 percent), slightly lower among independents (33 percent), and almost negligible among Democrats (16 percent).

Source: United Press International

Military Trumping of the Padilla Jury

Related

Presidential Candidate: U.S. In Danger of Dictatorship

---
Thursday, April 12, 2007

Jacob Hornberger’s Commentary

The Jose Padilla trial begins on Monday. As most everyone knows, this is a jury trial, which means that 12 ordinary people in the Miami area will be deciding whether Padilla is guilty or not of the terrorism charges that he has been indicted for.

What is important for everyone to recognize is the magnitude of the legal revolution that has taken place in the United States, post 9/11, with respect to what happens if the jury returns a verdict of not guilty.

Ever since the founding of the United States and prior to 9/11, if a person was acquitted in a federal criminal case, he would be immediately released from the government’s custody as soon as the jury returned a verdict of not guilty. The jury’s verdict had always been considered final. The judge had no choice but to immediately order the release of the defendant, who would walk out of the courtroom a free man immediately after the jury foreman announced two words: “Not Guilty.”

After 9/11, the law changed by virtue of orders issued by the president and the Pentagon. Announcing a “war on terrorism,” the president and the Pentagon declared that all people accused of terrorism, including Americans, would henceforth be considered “enemy combatants” and thereby be subjected to what amounted to perpetual military incarceration without trial. That declaration was ultimately ratified by the congressionally enacted Military Commissions Act.

As a result of those actions, if Padilla is acquitted by a jury of his peers, that still doesn’t mean that he will be released from government custody. At that point, despite a jury verdict of “Not Guilty,” the Pentagon has the option of taking Padilla back into custody as an “enemy combatant” and continue imprisoning him for the rest of his life.

The significance of this post-9/11 legal revolution is threefold:

(1) For centuries, the finality of a jury’s verdict has been considered an essential part of the freedom of the American people. That’s in fact why our American ancestors included the right to trial by jury in the Bill of Rights. It’s one of the things that have distinguished Americans from most of the rest of the world;

(2) The loss of finality to the jury’s verdict is part of the bundle of rights and freedoms that Americans traded away in return for “safety” from “the terrorists” after 9/11; and

(3) Everything federal officials, including those in the Pentagon, are doing to Padilla, they also have the authority to do all Americans.

Mr. Hornberger is founder and president of The Future of Freedom Foundation.

For Blair, it's child's play to make us all criminals

From identifying potential miscreants in childhood to fingerprint-activated iPods, Labour's new crime review takes the theft of our liberty to new extremes

Henry Porter
Sunday April 1, 2007
The Observer


Years ago, I asked some well-known people to write their obituaries for publication during their lifetime. The wonderful Lord Longford said that he was cowardly and had failed to serve his country properly in the war. Robert Maxwell claimed the fall of communism as one of more important personal successes. Both men were wide of the mark.
The thing about writing your own obituary, whether accurately or not, is that nobody is going to believe it anyway. Reputation, like political legacy, is not the possession of the individual to fashion how he or she likes. It is public property and each one of us has to live with that. Even Tony Blair.

Last week, an important part of the Prime Minister's Operation Legacy was published in a policy review document called 'Building on progress: security, crime and justice'. It is a dreary work and reading it, I remembered HL Mencken on President Warren Harding's use of English. 'It reminds me of a string of wet sponges,' wrote Mencken. 'It reminds me of tattered washing on the line; it reminds me of stale bean soup... it is so bad that a sort of grandeur creeps into it. It drags itself up out of a dark abyss of pish and crawls insanely up the topmost pinnacle of posh. It is rumble and bumble. It is flap and doodle. It is balder and dash.'
Perhaps that's a little unfair because the review document does contain an awful lot that establishes the Prime Minister's character, the obsessions with antisocial behaviour and crime that have been responsible for the 53 law and order bills since 1997, the creation of 3,000 new criminal offences and a rise in the prison population to a record 80,299.

Some have been tempted to see the review as a liberal adjustment, but read it closely and you'll find all the old fixations about the control of the British public and 'bottom-up citizen accountability', a gargoyle of a phrase that leers at you demanding proof of your identity, your innocence and your worth to the state. Instead, it is for the government to demonstrate its worth to us and we are all innocent until proven guilty by a normal court of law.

There is something Maoist in the review's exhortation. Think of the lunacy in China when Mao ordered the people into the fields to bang drums and tins so that the birds could never settle and therefore died of exhaustion and you have the tenor of this report. It is both self-congratulatory and demanding. As long as one bird is alive, none of us can rest. We must press on eradicating all crime and ensuring against the slightest possibility of deviancy.

We are told that every child in the country will be assessed to see if they are likely to turn to crime. Those that comply to a profile set by some grim determinist working for the government will be 'actively managed' by youth justice workers and local social services. This is what Blair meant by being tough on the causes of crime.

In the introduction, he says: 'It was never this government's belief that poverty and deprivation were excuses for crime.' Note the use of the word 'excuse' in this context, rather than the expected 'cause'. It lets the government off the hook about poverty being a contributing factor in crime.

What kind of intervention will the state contemplate? Fatherly chats on responsibility and homework, or will children end up being taken from problem families for a period of special attention and re-education? The implications are sinister; it seems clear that the government is taking too much upon itself. That is the common theme. On page 46, the review says: 'Citizens are asked to accept the gathering of greater levels of information and intelligence in the knowledge that this will facilitate improvements in public safety and law.' Which is to say we must all expect to be under total surveillance from the cradle to the grave.

The review mentions ID cards, mobile fingerprint readers, crowd scanners and an expansion of the DNA database of people who have committed no crime. There will be iPods and mobile phones that will work only when they sense one person's fingerprints. So we will be required to give Apple or Nokia fingerprints before buying a piece of equipment.

There will be automatic visual recognition cameras - no better way of controlling the population in times when the government is under pressure - and we read of virtual courts, in which a 'video-link technology could allow for hearings where a defendant is dealt with at the police station'.

This is utterly wrong. Such a court would not have the chance to examine the defendant in person, to assess his circumstances and character, the likelihood of his telling the truth or the treatment he may have received in the police cells. A video link hides much, for you can never tell what is going on off-camera, what threats are made, what prompts are being held up.

We must perhaps accept that the back-room boys in Blair's blue sky lab may be indulging the Prime Minister with these control fantasies at the same time as seeking to throw this part of his legacy forward into the political culture of the future. We must accept also that they may mean well despite the leaden evidence of autocratic mania.

In all this, there is a very large mystery. At the same time as arguing for the necessity of this 21st-century version of the police state, the report also does a pretty good job of telling us about Blair's great success. 'Crime has fallen 35 per cent since 1997', with 'six million fewer offences committed each year'. And: 'Offences brought to justice increased by 37 per cent from March 2002 to September 2006.' It even admits to the perception gap: 'Two-thirds of the public believe that crime has been rising' when there has, in fact, 'been a significant fall in crime levels since 1997'.

Who has kept this state of siege alive in the minds of the public? The Blair government. How else would the Prime Minister have managed to mount the assault on our liberty that he has?

That is certainly part of his legacy. There is another element which is more hidden or, rather, it is one that we have become used to, and that is the widespread confusion in Blair's administration between state and government. Senior civil servants complain how Blair and his ministers refuse to recognise that in order to function properly they must keep the politics of government at arm's length. Blair's administration thinks of itself as the embodiment of the state. Therefore, everyone who works for the state works for the government.

It is the same attitude that allows the Prime Minister's strategy groups to dream up the bossy, intrusive, controlling, presumptuous and downright dangerous practices described in 'Building on progress'. When Gordon Brown becomes Prime Minister, we will be able to judge whether the review is Blair's legacy or New Labour's.

As to a proper memorial for the Prime Minister, a man I would dearly love to be praising now, we must look no further than the empty plinth in Trafalgar Square which falls inside the area where spontaneous demonstration of any sort has been banned by Labour. A modest bronze of an ordinary man, gagged and holding a blank placard perhaps? Or a cascade of birds falling from the sky, each one representing a lost right or freedom?

henry.porter@observer.co.uk

Leaders Don't Kill People...

March 2, 2007

by Michael Boldin

If I have my facts straight, George W. Bush has never killed a single person in his life. All the torture and death that people attribute to him has been carried out by people who were "only following orders."

Psychologically, I find this quite interesting. As a person, it doesn't appear that Bush would or could hurt anyone, especially not innocent people. But, as "commander-in-chief," he can order and oversee actions that result in the deaths of tens of thousands of innocents without even batting an eye. A friend and critic of mine believes that leaders such as Bush assume full responsibility for the actions of a nation's military. I strongly disagree.

We've all heard the excuses over and over again. The soldiers aren't responsible because they're following orders. The military isn't responsible because they have to obey the civilian leadership. The President isn't responsible because he was given bad intelligence. The intelligence agencies aren't responsible because they had bad informants, and made the best call they could under the circumstances. And, of course, Congress isn't responsible either. Why not? I don't really know. Maybe it's because they're utterly incompetent.

Seriously, though, we have a major problem here.

RESPONSIBILITY

So, who is responsible for the death and destruction in Iraq?

Who? The pilots who dropped the bombs? The commanding officers? The secretary of defense? The President? Or, as the war hawks would like us to believe, is it the people defending their homeland from invasion? If they'd just stop resisting...then our peace-loving, democracy-spreading military wouldn't have to defend themselves and kill these people, right?

Who is responsible might not even matter, because the truth is no one will be held accountable, and there will be no trials or prosecutions for the countless innocents that have been killed in America's foreign wars. The result is that the politicians are further emboldened to wage even more wars in the future.

STANDING ARMIES ARE DANGEROUS TO YOU

Historically, governments have misused standing armies in two main ways, both of which inevitably result in tyranny for the People. The first is to engage in foreign wars, which invariably result in massive spending, which enables the government to place a bigger and bigger tax burden on the people. This was well-stated by James Madison, the "father of the Constitution":

Of all the enemies to public liberty war is, perhaps, the most to be dreaded, because it comprises and develops the germ of every other. War is the parent of armies; from these proceed debts and taxes; and armies, and debts, and taxes are the known instruments for bringing the many under the domination of the few.

Governments generally call for increased patriotism at home while these foreign wars are being waged. The politicians demand greater powers and reduced liberties for the people; claiming that these moves will help bring peace. Explaining this second way standing armies are misused, Madison continued:

In war, too, the discretionary power of the Executive is extended; its influence in dealing out offices, honors, and emoluments is multiplied; and all the means of seducing the minds, are added to those of subduing the force, of the people.... [There is also an] inequality of fortunes, and the opportunities of fraud, growing out of a state of war, and ... degeneracy of manners and of morals.... No nation could preserve its freedom in the midst of continual warfare.

The concept here is simple. Governments use their armies to stir up, or even produce, enemies by meddling in the affairs of people in different countries. Then, they attempt to scare their own people with cries that the "enemy" is ready to invade, and that war is absolutely necessary to stop these evil killers. Once war breaks out, the government then demands additional power over the people to supposedly "protect" them in time of war.

Sound familiar?

WHERE THE REAL DANGER LIES

American history is filled with politicians who used foreign adventures to boost their political standing at home. The war in Iraq, now lasting over 15 years and Presidents from both political parties, demonstrates why the Founding Fathers so vehemently opposed standing armies.

The use of our military to invade nations or do "police actions" in places like Iraq, Afghanistan, Colombia, Serbia, Vietnam, and elsewhere, is both unconstitutional and immoral. The death toll resulting from this aggressive foreign policy has become massive.

Ask yourself this. Is the Iraqi insurgent fighting in Baghdad more threatening to you than warrantless spying or massive war spending? Is al Qaeda more menacing than the suspension of Habeas Corpus? Is the "terrorist" in Iraq a greater danger to your freedom than all those politicians who signed the Patriot Act without even reading it? Just exactly who or what is the greatest threat your rights?

To those not blinded by interest, the answer is clear. It's not individuals like Clinton or Bush. It's not the military. It's not the NSA, the Supreme Court, or Congress. The greatest threat to your liberty is your own government; it's the system which has allowed all this to happen! And, sadly, it's been this way for many years.

But, the politicians couldn't get away with much if we didn't give them the tools. The government couldn't grow in power without the billions of dollars they take from us each year. The politicians wouldn't be able to wage war without the massive military machine which has become synonymous with American foreign policy.

I say to you, look at who your leaders are, and ask yourself if these people can be trusted with such power. Presidents such as Truman, Bush, Johnson, and Clinton have used the military in ways which have resulted in the deaths of millions. They used the same standing army that people like George Washington and Patrick Henry warned us against. Don't tell me that this country needs such a military force. A national militia would never have done such things.

SOLUTIONS

In contrast to this bloody mess, the founders envisioned a society that would be protected by militias on the state level. A national defense would only be put together when the nation itself was directly threatened by invasion.

What's my suggestion? Well, I'm sure many of you won't like it, but that's the way things go. I say let's get rid of the whole damn military. Stop spending countless billions and billions to maintain a global presence. Bring all the troops home once and for all!

Just think, if the military was disbanded then there would be no more overseas bases. There would be no more bombings of faraway nations. There would be no more terrorists created by a meddling foreign policy. There would be no more regime changes. There would be no more foreign wars. There would be no more war funding bills to debate. There would be no more use of weapons like agent orange and depleted uranium. There would be no more enemy combatants. There would be no more military prisons. There would be no more collateral damage. And, most importantly, the root of the problem would finally be smashed into pieces; the treacherous policy of American interventionism.

Thus, there is only one solution to this grave danger to our freedom and prosperity. We the People must act on the warnings of the Founding Fathers against standing armies and foreign entanglements. We must shut down the American military empire, close every single overseas base, and bring all the troops home. The troops would then be released into the private sector, where they would be quite effective in leading local militias to defend the nation in the highly unlikely event of a foreign invasion.

REAL NATIONAL DEFENSE

Do I want a defenseless country? Absolutely not - I want a defenseless government! I want a government that doesn't have the power or the tools to wage anymore foreign wars, and thus, one that doesn't have the excuse to take away your liberty to "protect" you.

There is an alternative that one would call a real national defense. This is one where the people themselves are responsible for the defense of their country. The individual American was considered to be so effective and important to the defense of America that the Constitution specifically mentioned it in the 2nd Amendment.

Those in power, and their followers, of course, would never want this to become reality, though. They'll try to scare you away from such a strong system of defense. They'll warn you of all the great dangers that will "surely" come. But, don't believe such things, for they are the lies of tyrants!

Here's one I've heard time and time again. "If we didn't have the military, you'd be speaking German or Japanese right now!" Don't make me laugh! The Japanese were able to pull off one surprise attack by air, and the Germans weren't even able to cross the English Channel, much less the Atlantic Ocean!

So what would happen if another country ever began preparing masses of ships and planes, and millions of soldiers to invade the United States? The Founding Fathers gave us the answer. Such an invading force would be met by the power of tens of millions of free, well-armed American citizens who would quickly rise to resist and defeat any such invasion.

Think it can't work? Think again. Invading and successfully occupying nations with an armed population is a feat rarely accomplished. The people of Afghanistan were able to drive out the mighty Soviets, and just a small percentage of the Iraqi people are currently making occupation untenable for the mightiest military in the history of the world.

A NEW DIRECTION

What would we do about murderous foreign dictators? Yes, you got it. The Founding Fathers gave us an answer to that as well. First of all, the government would no longer force you to give them any money. And more importantly, the government would no longer have the ability to go around looking for tyrants to destroy, and populations to "save" through war. Instead of endless foreign entanglements, we'd build the freest and most prosperous nation in history.

Of course, those Americans who would want to leave their families and jobs to support revolutionary movements in other parts of the world would always have the freedom to do so.

Thus, in determining our future, we have a clear choice. Should we continue down the path we are on today? Should we continue on this path of empire, with massive standing armies, hundreds of overseas bases, foreign wars and sanctions? Should we continue our foreign policy which creates hatred in millions and millions of people; thus making you a target of their retaliation? Should we continue down the path of ever-growing taxes and regulations, as well as the endless loss of liberty that always comes with empire?

Or, should we change direction? Should we take our nation down the path that the Founder Fathers envisioned? Should we create a society where government is strictly limited and forbidden from invading foreign nations? Should we build a society where freedom and prosperity reigns; a nation that would serve as a model for the rest of the world? If we choose this path, every person on earth would always know that there would be at least one refuge for the oppressed, the United States of America.

We can have something different, and I, for one, choose the path of liberty.


Michael Boldin [mboldin@populistamerica.com], an outspoken critic of the American political system, is a senior editor and contributing writer for http://www.populistamerica.com.

Democracy or Liberty

A MINORITY VIEW
BY WALTER E. WILLIAMS
RELEASE: WEDNESDAY, FEBRUARY 28, 2007, AND THEREAFTER

Does democracy really deserve the praise it receives? According to Webster's Dictionary, democracy is defined as "government by the people; especially: rule of the majority." What's so great about majority rule? Let's look at majority rule, as a decision-making tool, and ask how many of our choices we would like settled by what a majority likes.

Would you want the kind of car that you own to be decided through a democratic process, or would you prefer purchasing any car you please? Ask that same question about decisions such as where you live, what clothes you purchase, what food you eat, what entertainment you enjoy and what wines you drink. I'm sure that if anyone suggested that these choices be subject to a democratic process, you'd deem it tyranny.

I'm not alone in seeing democracy as a variant of tyranny. James Madison, the father of our Constitution, said that in a pure democracy, "there is nothing to check the inducement to sacrifice the weaker party or the obnoxious individual." At the 1787 Constitutional Convention, Edmund Randolph said, " . . . that in tracing these evils to their origin every man had found it in the turbulence and follies of democracy." John Adams said, "Remember, democracy never lasts long. It soon wastes, exhausts, and murders itself. There was never a democracy yet that did not commit suicide." Chief Justice John Marshall observed, "Between a balanced republic and a democracy, the difference is like that between order and chaos."

Our founders intended for us to have a limited republican form of government where rights precede government and there is rule of law. Citizens, as well as government officials, are accountable to the same laws. Government intervenes in civil society only to protect its citizens against force and fraud but does not intervene in the cases of peaceable, voluntary exchange. By contrast, in a democracy, the majority rules either directly or through its elected representatives. The law is whatever the government deems it to be. Rights may be granted or taken away.

Clearly, we need government, and that means there must be collective decision-making. Alert to the dangers of majority rule, the Constitution's framers inserted several anti-majority rules. In order to amend the Constitution, it requires a two-thirds vote of both Houses, or two-thirds of state legislatures, to propose an amendment, and requires three-fourths of state legislatures for ratification. Election of the president is not done by a majority popular vote but by the Electoral College.

Part of the reason for having two houses of Congress is that it places an obstacle to majority rule. Fifty-one senators can block the wishes of 435 representatives and 49 senators. The Constitution gives the president a veto to thwart the power of 535 members of Congress. It takes two-thirds of both houses of Congress to override the president's veto.

In Federalist Paper No. 10, James Madison wrote, "Measures are too often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority." That's another way of saying that one of the primary dangers of majority rule is that it confers an aura of legitimacy and respectability on acts that would otherwise be deemed tyrannical. Liberty and democracy are not synonymous and could actually be opposites.

Let It Come Down: Forcing the Constitutional Crisis of Liberty

by Chris Floyd

The line it is drawn
The curse it is cast...
The order is rapidly fading
And the first one now
Will later be last
For the times they are a-changin'

Nat Hentoff, one of our great champions of civil liberties, uncovers the ugly truths behind the Bush Regime's plans for a Nuremberg-in-reverse at the American concentration camp in Guantanamo Bay: war crimes show trials being conducted by war criminals. Hentoff also cites the remarkable reports by the Seton Hall University School of Law which – drawing solely on official Pentagon documents – detail the shameful and criminal system that Bush and his lawless gang of legal perverts have established. As the Seton Hall reports note:

"Only 8 percent of the detainees were characterized as al Qaeda fighters. Of the remaining detainees, 40 percent have no definitive connection with al Qaeda at all and 18 percent have no definitive affiliation with either al Qaeda or the Taliban...."The Government has detained numerous persons based on mere affiliations with a large number of groups that are, in fact, not on the Department of Homeland Security terrorist watchlist . . . A large majority – 60 percent – are detained merely because they are 'associated with' a group or groups the Government asserts are terrorist organizations. (And members of almost 72 percent of those groups are allowed into the U.S.)....

"Only 5 percent of the detainees were captured by United States forces. Eighty-six percent of the detainees were arrested by either Pakistan or the Northern Alliance and turned over to United States custody. This 86 percent of the detainees captured by Pakistan or the Northern Alliance were handed over to the United States at a time when the United States offered large bounties for capture of suspected enemies."

Hentoff adds: "Remember, these findings are based entirely on Department of Defense records. (Robert Gates can fact-check them.)...Remember, too, that in the 2006 Military Commissions Act, Congress stripped from all these prisoners any meaningful right to utilize our federal courts, thereby defying our own Supreme Court."

(For more on the MCA and Bush's larger web of arbitrary rule, see Presidential Tyranny Untamed by Election Defeat and Fatal Vision: The Deeper Evil Behind the Detainee Bill.)

This issue must now be brought to the crisis. When the new Congress convenes, it should pass a law repealing the Military Commissions Act and firmly re-establishing Constitutional principles of jurisprudence and civil liberties. Then let Bush veto it if he will, so that it will be plain at last where we stand: Constitutionalists on one side, Authoritarians on the other. These poles are fast becoming the true political divide in this country, a split that runs through all parties. To echo George Washington, "Let us have [a government] by which our lives, liberties and properties will be secured; or let us know the worst at once."

It is folly to wait upon the Supreme Court to sort out the matter. There is little indication that the current Court will strike down the MCA; at best, it may seek to mitigate some of its most egregious excesses. But allowing the law to stand in any form represents an acceptance of the principle of unconstitutional presidential authority, of arbitrary action by the executive. And of course the MCA is not the sole building block of the vast edifice of tinpot tyranny that Bush and his anti-American minions have constructed over the years. That's why any move to repeal the Act must be accompanied by further legislation to roll back all of Bush's encroachments on our Constitutional system.

Will such a law be vetoed? Yes. But let it be so. Let it come down. Force all those who represent us in government declare which side they are on. Let all the pundits and opinion-slingers declare which side they are on. Let the people themselves see clearly and openly the choice that is before them: Do you want a republic of free citizens, or a bastardized autocracy?

Excerpts from Our Own Nuremberg Trials (Village Voice): During the mutual-admiration hearing before the Senate Committee on Armed Services – which led to the unanimous confirmation of former CIA chief Robert Gates to be Donald Rumsfeld's successor – no senator asked Gates if he approves of the Pentagon's "extreme . . . emergency" insistence on a $125 million appropriation to construct a permanent compound for a war-crimes court at Guantánamo. There, in 2007, war-crimes trials will be held for dozens of Guantánamo "detainees." The facilities will accommodate simultaneous proceedings.

Unlike the Nuremberg war-crimes trials of the Nazis, there will be no government officials in the dock, but rather – as detailed in my last column – prisoners against whom the United States has itself committed war crimes under the Geneva Conventions and our own War Crimes act. These crimes include their conditions of confinement and a total lack of the due process that the Supreme Court ordered in Rasul v. Bush (2004) and Hamdan v. Rumsfeld (2006).

Each of the defendants will have already been designated as an "enemy combatant" by previous "administrative" Combatant Status Review Tribunals at Guantánamo. At these sham hearings they were presumed guilty before any of the "evidence" against them (which they were not permitted to see) was aired. That means the presumption of guilt will continue at the war-crimes trials. The world will watch the total transmogrification of America's much self-praised "rule of law."

...The Seton Hall revelations have reached beyond the metropolitan press to, for example, the Anniston Star in Alabama. A December 1 editorial, "The Gitmo Games," quotes from the Seton Hall findings, and concludes:

"The military is holding something less than a kangaroo court that results in putting people away – without charging them with any specific wrongdoing – for an indefinite period of time . . . History will be very unkind to the rulers who constructed this very unjust, un-American system. Those un-American rulers, of course, include George W. Bush, Dick Cheney, John Ashcroft and Alberto Gonzales, a coven of lawyers at the Defense Department and the White House, and Donald Rumsfeld. Will Robert Gates take his place among them?"

The Anniston Star's indictment-editorial ends: "[History] also will be unkind to people who tolerated [this un-American system.]" That means us.

December 20, 2006

Chris Floyd [send him mail] is the author of Empire Burlesque: The Secret History of the Bush Regime.

Copyright © 2006 Chris Floyd

Prisoners’ Dilemma

December 18, 2006 Issue
Copyright © 2006 The American Conservative

Indefinite detention of terrorist suspects poses a challenge to America’s most valuable legal traditions.

by Gerald J. Russello

The recently enacted Military Commissions Act and the Supreme Court Hamdi and Hamdan decisions, which tried to limit the suspension of the protections of habeas corpus, have spurred a new series of debates on the somewhat technical legal area of habeas corpus. The Great Writ, as it was known, stands for a very simple principle: power does not trump. A government may wish to detain someone secretly, perhaps indefinitely, and may believe it has good reasons to do so, but in the Anglo-American legal tradition, that is not good enough. As the Supreme Court stated in 1969, the writ is “the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action.” The government therefore has to “produce the body for examination,” as the translation of the full Latin tag put it, before a magistrate and justify the reasons for the person’s detention.

The position announced in the MCA and its related statutes may or may not be bad policy for defeating terrorism, but it certainly undermines a key component of free government. Government must in the normal course act in the open and must be held to a standard of reasonableness as to its actions, including being forced to explain why it has decided to detain someone. In the American legal tradition, and more broadly that of the West in general, providing the protections of habeas corpus has been a mark of civilizational achievement and we rightly consider those countries that do not do this to be less developed.

Americans across the political spectrum support the general principle of habeas corpus, but the war on terror has created opposing views about its application. On the one hand, some, mostly conservatives, have supported the government’s authority to hold possible enemy combatants in foreign countries or at home without charge or judicial process. For them, the exigencies of the new threats to our safety justify reconsideration of traditional civil liberties. Others, generally liberals, have sought to extend the Constitution’s guarantee of habeas corpus to anyone brought within the power of the American government, even non-citizens captured in military operations abroad. For this side, the war on terror is analogized to the civil-rights movement and seen as another area for expansion of rights beyond their traditional scope.

While both sides are playing to their respective bases, the dispute is real, and each side has legitimate arguments to which it can turn. It is clear, however, that no one had thought out the situation that has led to the MCA beforehand. This is especially the case for those supporting the war, for whom the conquest would be a “cakewalk” and the possibility of holding persons for over three years in military facilities, if ever considered, was never stated publicly. As a result of its invasions of Iraq and Afghanistan, the United States is now presented with thousands of people of uncertain status who have been transported far from their homes, who have been collected into facilities indefinitely, and who have no real redress in either American courts or through the military justice process. The Hamdan decision does not solve this: the case merely holds that for those people determined by a tribunal to be enemy combatants, habeas protections apply to a degree; however, the government has no obligation to ever determine when someone is an enemy combatant, casting these individuals into jurisprudential no-man’s land. This situation has no real precedent in American history, and one can feel some sympathy for those trying to wrestle with the legal and political issues the war on terror has caused and the strain it has put on constitutional government.

With its actions in Guantanamo Bay, Abu Ghraib, and elsewhere, the United States has entered unknown territory, and is walking the knife edge between retaining the clear characteristics of a free republic and becoming something else. Some people have taken to calling this new entity an empire, but that is true only in certain respects. Because of its refusal to acknowledge any intent to occupy or govern conquered territories as its own possessions, preferring a policy of democratizing “rogue states,” what may be emerging is more of a perpetual war state, preparing for and engaging endless combat against “terror.”

Whatever it is called, one of the features of this emerging entity is the stratification within it of individuals based on their status—from full citizens down to those awaiting “enemy combatant” designations who are basically at the whim of the government. That too is an unfortunate side effect of imperial ambition—and one, perhaps not coincidentally, reflected in the maze of classifications and status designations in the immigration law. In one case, there is a class of guest workers abroad, who are not citizens but are useful for domestic policy; the other is a class of guest detainees serving a similar purpose for foreign policy.

But here is the tricky part: a state action can be “lawless,” in the language of the Supreme Court, only if it violates some law. In American jurisprudence that means statutory law or the Constitution. So if the law does not apply to foreigners, as respectable conservative argument might propose, what is the big deal? The Constitution provides that the right of habeas corpus may be abrogated only “when in cases of Rebellion or Invasion the Public Safety may require it.” This language was clearly intended to cover a limited crisis whose end could be determined with some certainty. Rebellion and invasion have commonsense, widely understood meanings. It is obviously far from clear how this limited exception may interact with an endless war on terror, with no clear guideposts or defined enemies. The Constitution does not directly address the question of what to do with these detainees.

Habeas corpus is not a universal right protecting one from being hauled up and locked away. Nor is it some irrevocable principle like the law of gravity. But that is not the end of the story. As conservatives well know, historical experience and development, even with its recognized flaws, is a surer safeguard of liberty than an appeal to vague or expansive “rights” and must be sustained by the customs, conventions, and beliefs of a people. This is where those advocating universal application of habeas fall short: their “rights talk” ignores the flaws of that theory of rights as it has been applied to areas ranging from criminal procedure to religious freedom: endless assertion of right against right (here, the right of habeas corpus against that of national self-defense) makes political life impossible. And their rush to support the Hamdan Court’s reliance on the Geneva Conventions or international law is clearly only a fig leaf for their own preferred outcomes. If the Conventions permitted slavery or torture, they would not be considered so persuasive.

But in pushing for limitations on habeas corpus, conservatives are ignoring their own best traditions. Conservatives are rightly suspicious of government, or at least they are with respect to the efficient provision of health care or welfare; it has been less so recently on issue of war. But the Hamdi decision perfectly illustrates the reasons for conservative suspicion: there the government wanted to detain a citizen without habeas corpus simply because it determined he was an “enemy combatant.” The Supreme Court, in a set of divided opinions, put a stop to that nonsense, but the fact that the case had to come before the Court at all should serve as a reminder to conservatives that the nature of a centralizing power is to strengthen itself.

The debate over extending habeas protections is echoed in the debate over torture. The debate over torture is basically on utilitarian terms: how many terrorists are worth torturing, and to what degree, in exchange for saving how many lives? A form of this utilitarian calculus is at play as well in the habeas corpus debate. The thinking seems to be that the greater the number of detainees, the less harm will come to us. But this is the wrong approach. The practice of torture is corrupting to us, as well as damaging to those we torture, because the practice degrades us. Once a society starts arguing about when such coercive methods are “appropriate,” it has already begun to condone permitting its own citizens to brutalize and debase themselves as well as harm their victims. Similarly with habeas corpus: while those subject to the MCA are being ill served, getting citizens used to the having large numbers of foreigners held at our mercy is corrosive and corruptive of our liberty. Once a nation grows accustomed to the idea that it may hold some people without trial indefinitely, it is easier to dissolve the characteristic—citizenship—that is marked out as the reason for different treatment.

The habeas corpus debate, much like our debate over the uses of torture, betrays the absolutist mind lurking beneath much of American idealism. According to this mindset, recognized by conservatives such as Robert Nisbet over 40 years ago, the “moral and political aspirations” of foreign policy blind us to realities on the ground. Here a great injustice is being done to many people within the direct power of the United States to help, and all the talk of promoting democracy or defeating the terror masters will not hide that.
_______________________________

Gerald J. Russello is editor of The University Bookman. His book on the thought of Russell Kirk is being published by the University of Missouri Press.

Warmonger Rationale

by Ralph R. Reiland

"Essentially states are class-stratified political units that maintain a monopoly of deadly force – a monopoly institutionalized as permanent police and military forces," writes anthropologist Lawrence H. Keeley in his book, War Before Civilization: The Myth of the Peaceful Savage.

The state's "monopoly of deadly force" means that we hang a man who kills in order to steal a wallet but throw a parade for a leader who successfully kills 500,000 in order to steal the resources of another land.

Whether it's for land, gold, diamonds or oil, there's nothing new about using state violence to rob others of their wealth.

"Both nonstate social groups and states have historically engaged in the violent annexation of territories to acquire natural resources," writes Pace University economics professor Joseph Salerno, a senior fellow at the libertarian Ludwig von Mises Institute.

Salerno contends that "imperialist wars by states in every epoch of history are not accidental." Instead, "They are the outcome of the powerful tendency to war-making that is inherent in the very nature of the state."

Before the age of SUVs and the need for oil, the imperialism was about more simple things. "In Minnesota, the Chippewa and Dakota Sioux tribes battled one another for 150 years over access to hunting territories and wild rice fields," writes Salerno, "while tribes in the Pacific Northwest frequently fought for frontage on the ocean and rivers giving access to the salmon runs."

In short, slaughter an entire tribe for salmon and it's fine – something that calls for a victory dance – but steal a pot from a tepee in your own tribe and you're likely to be strapped to a tree as bear food.

Salerno sees those who run the state, whether they're dictators or elected politicians, as a class that lives off those who produce and pay taxes: "These are historically the tax-consumers and, not coincidentally, the war makers."

For a minority ruling group that's coercively siphoning off resources and lowering the take-home pay and living standards of the majority of the population, war, argues Salerno, has the advantage of directing the attention of the majority to an outside enemy, a foreign state, a foreign ideology.

"Convinced that their lives and property are being secured against a foreign threat, the exploited taxpayers develop a 'false consciousness' of political and economic solidarity with their domestic rulers," writes Salerno. Persistent war making by a nation's governing elite against allegedly threatening aggressors becomes "a perfect way to disguise the naked clash of interests between the taxpaying and tax-consuming classes."

War, rather than being a mistake or an aberration, is as unavoidable as death and taxes because it serves the interests of the governing class, according to Salerno's analysis: "A permanent state of war or preparedness for war is optimal from the point of view of the ruling elite, especially one that controls a large and powerful state."

For the U.S., the "war on terror" provides policy-makers with the pretext and opportunity for "an open-ended imperialist war the likes of which were undreamt of by famous war makers of yore from the Roman patricians to German National Socialists," asserts Salerno.

With no shortage of "evildoers" in the world, no shortage of memories about 9/11, no shortage of places in the world where a domino might topple and harm our national interests or the interests of our allies, and no shortage of official pronouncements about God being on our side, it became not very difficult to convince the majority of the American public to buy the rationale for "preventive war" – to accept the idea that U.S. invasions and attacks, even in the face of no evidence of imminent attack or military provocation, are justifiable as "preemptive" action, justifiable as "self-defense."

Unfortunately, it's likely that the high level of opposition to the war in Iraq currently being expressed by the American public only exists because we are losing. If the post-invasion aspects of the war hadn't been so bungled, the majority of the population would still be saying to stay the course, still be willing to abandon habeas corpus, still be willing to wink at torture and look the other way as the government picks up people and holds them indefinitely.

"It became necessary to destroy the village in order to save it," a U.S. officer was quoted as saying in Vietnam. This time, we were well on our way to destroying liberty in order to save it.

December 13, 2006

Ralph R. Reiland [send him mail] is an associate professor of economics at Robert Morris University in Pittsburgh.

Copyright © 2006 LewRockwell.com

Ralph R. Reiland Archives