Legislating Tyranny

The George W. Bush administration responded to the 9/11 attack on the World Trade Center and Pentagon with an assault on U.S. civil liberty that Bush justified in the name of the “war on terror.”


The government assured us that the draconian measures apply only to “terrorists.” The word terrorist, however, was not defined. The government claimed the discretionary power to decide who is a terrorist without having to present evidence or charges in a court of law.

Frankly, the Bush administration’s policy evades any notion of procedural due process of law. Administration assurances that harsh treatment is reserved only for terrorists is meaningless when the threshold process for determining who is and who is not a terrorist depends on executive discretion that is not subject to review. Substantive rights are useless without the procedural rights to enforce them.

Terrorist legislation and executive assertions created a basis upon which federal authorities claimed they were free to suspend suspects’ civil liberties in order to defend Americans from terrorism. Only after civil liberties groups and federal courts challenged some of the unconstitutional laws and procedures did realization spread that the Bush administration’s assault on the Bill of Rights is a greater threat to Americans than are terrorists.

The alacrity with which Congress accepted the initial assault from the administration is frightening. In 2001, the USA PATRIOT Act passed by a vote of 98 to 1 in the Senate and by 357 to 66 in the House. The act was already written and waiting on the shelf before the 9/11 attack. Indeed, the FBI and Department of Justice have tried for years to introduce PATRIOT Act provisions into the law. That act was introduced immediately after the attacks, and few members of Congress read its contents prior to passing it.

Federal courts declared some provisions of the legislation to be unconstitutional. Vague language criminalizing “expert advice or assistance” as material support for terrorism was thrown out, as were gag orders and “National Security Letters” used to obtain private information without judicial oversight. Despite challenges from the American Civil Liberties Union and resolutions passed in 8 states and 396 cities and counties condemning the act for its attack on civil liberties, Congress reauthorized the act in March 2006, making most of it permanent and sending a clear signal that the “war on terror” takes precedence over civil liberty.

The PATRIOT Act’s infringements of civil liberty are serious, but they pale by comparison to the Bush administration’s assertion of executive power to set aside habeas corpus protection for both citizens and noncitizens declared by the executive branch to be “enemy combatants.” The Bush administration claimed and exercised the power to hold indefinitely anyone so designated without access to legal representation. In other words, the Bush administration claimed the discretionary and unaccountable power to imprison whomever it wished.

In keeping with its self-declared powers, the Bush administration quickly rounded up hundreds of detainees whom it claimed— without evidence—to be “enemy combatants.” Four detainees, Rasul, Hamdi, Padilla, and Hamdan, consisting of a British citizen, two American citizens, and an Afghan, respectively, challenged the administration in federal court cases that reached the Supreme Court.

In Rasul v. Bush the Supreme Court ruled in June 2004 that, contrary to Bush administration assertions, the courts have jurisdiction over Guant‡namo and that detainees must be allowed to challenge their detention.

Also in June 2004, the Supreme Court ruled in Hamdi v. Rumsfeld that Hamdi, an American citizen, was deprived of due process and had the right to challenge his detention. However, the ruling was far from a clean sweep for civil liberty. Both noted civil libertarian Harvey Silverglate (Reason, January 2005) and John Yoo, a Department of Justice apologist for the new tyranny, agree that the Supreme Court decision left flexibility and room for the government to maneuver and prevail in the end.

In December 2003, an appellate court ruled that U.S. citizen JosŽ Padilla could not be denied habeas corpus protection. To forestall another Supreme Court ruling against the Bush administration, the administration withdrew Padilla’s status as “enemy combatant” and filed criminal charges that bore no relationship to the administration’s original assertions that Padilla was plotting to explode a “dirty bomb” in an American city. As Harvey Silverglate has documented (Boston Phoenix, September 16, 2005), the Padilla case is also an extraordinary story of “forum shopping” (picking a court where judges are friendly to its case) by the Department of Justice.

Forced by the federal judiciary to release JosŽ Padilla from years of illegal detention or to put him on trial, the Bush administration had to scramble to put together some kind of charges. The best that the Bush administration could do was to charge Padilla not with any terrorists acts, but with wanting to be a terrorist—a “terrorist-wannabe” to use the words of Andrew Cohen (WashingtonPost.com, August 16, 2007).

By the time Padilla went to trial, he had been demonized for years in the media as an “enemy combatant” who intended to set off a radioactive bomb. Peter Whoriskey (Washington Post, August 17, 2007) described the Padilla Jury as a patriotic jury that appeared in court with one row of jurors dressed in red, one in white, and one in blue. It was a jury primed to be psychologically and emotionally manipulated by federal prosecutors. No member of this jury was going to return home to accusations of letting off the “dirty bomber.”

Evidence, of which there was little, if any, played no role in the case. The chief FBI agent, James T. Kavanaugh, testified in court that the intercepted telephone conversations were innocuous and contained no references to terrorism or Islamic extremism, but the jury wasn’t listening. The judge allowed prosecutors to show the jury a ten-year-old video of Osama bin Laden that had no relevance to the case, but which served to arouse in jurors fear, anger, and disturbing memories of September 11, 2001. The jury convicted Padilla on all counts, despite the total absence of any evidence that he had ever committed a terrorist act or had agreed to commit such an act.

By convicting Padilla, the jury opened Pandora’s box and created a Benthamite precedent for imprisoning U.S. citizens on the suspicion that they might commit a terrorist act.

In July 2006, in Hamdan v. Rumsfeld, the Supreme Court ruled that Bush’s military tribunals violate U.S. military law and the Geneva Conventions.

Republicans, who tend to regard civil liberties as devices that coddle criminals and terrorists, turned to legislation in attempts to subvert the Supreme Court’s defense of the U.S. Constitution. In November 2005, the Senate Republicans passed an amendment to the Defense Authorization Act offered by Lindsay Graham of South Carolina authorizing the president to deny habeas corpus protection to Guant‡namo detainees. The fact that it was known by this time that the vast majority of the detainees were hapless individuals who were captured by Afghan warlords and sold to the Americans, who were paying a bounty for “terrorists,” carried no weight with the Republican senators.

The Republicans replied to Hamdan v. Rumsfeld with the Military Commissions Act passed in September 2006 and signed by Bush in October. The act strips detainees of protections provided by the Geneva Conventions: “No alien unlawful enemy combatant subject to trial by military commission under this chapter may invoke the Geneva Conventions as a source of rights.” Other provisions of the act strip detainees of speedy trials and of protection against torture and self-incrimination. This heinous law has a breathtaking provision that retroactively protects torturers against prosecution for war crimes.

The act explicitly denies habeas corpus protection and access to federal courts to any alien detained by the U.S. government as an “enemy combatant” and any alien awaiting determination of his status. The act reads: “No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the US who has been determined by the US to have been properly detained as an enemy combatant or is awaiting such determination.”

This act is as atrocious a piece of legislation as the world has ever seen. It permits people to be sentenced to death on the basis of hearsay, secret evidence, and on a confession extracted by torture. Indeed, detainees could be shot in the back of the head without undergoing the kangaroo tribunal and no one would ever know or be held legally responsible.

A number of legal experts have concluded that there is no assurance that the act cannot be applied to U.S. citizens. Although language in the act refers to “alien unlawful enemy combatant,” other language in the document does not limit the act’s applicability only to aliens. Legal scholars have warned that the legislation defines enemy combatant in such broad language that the act applies to any person whom the executive branch declares has purposefully and materially supported hostilities against the United States. No evidence for the charge is necessary. By seizing the power to decide who is and who is not an “enemy combatant,” the executive branch has seized the power to decide who shall and who shall not be permitted the protections guaranteed by the U.S. Constitution. The Bush administration has resurrected the dungeons and torture chambers that Blackstone’s Rights of Englishmen banished from the English-speaking world.

It is too early to know how the act will be interpreted and applied to American citizens or whether it can be challenged and overturned on constitutional grounds, but forebodings are severe. What we can say is that the act is draconian and dangerous legislation that is completely unnecessary. If the U.S. government has enough correct information to designate a person truthfully to be an enemy combatant, the U.S. government has enough information to put the person on trial in open court with all the rights guaranteed by the Constitution to defendants. The U.S. government needs only indefinite detention, torture, and secret evidence when it has no evidence. Every American should be concerned that John Yoo, one of the Justice Department authors of this totalitarian legislation, is now a law professor at the University of California. Liberty has no future in America if law schools provide legitimacy to those who would subvert the U.S. Constitution.

The Assault on the Constitution

We concluded the first edition of this book with a call for “an intellectual rebirth, a revival of constitutionalism.” Alas, far from a rebirth of constitutionalism, we are witnessing a rending that we would not have imagined. On January 17, 2007, the attorney general of the United States, Alberto Gonzales, declared in testimony before the Senate Judiciary Committee that “the Constitution doesn’t say every individual in the United States or every citizen is hereby granted or assured the right of habeas.” The chairman of the committee, Arlen Specter (R-Pennsylvania) was incredulous when Gonzales insisted that “there is no express grant of habeas in the Constitution.”

In June 2007, Dick Cheney astonished Americans with his claim that the Office of Vice President is independent of both the executive branch and Congress and is accountable to neither.

Americans should pay attention to the power that the Bush administration is claiming over them. If Americans are not protected by habeas corpus, the government can pick us up at its will and cast us into dungeons for the rest of our lives without ever giving any accountability of its action. If the Constitution does not grant habeas corpus protection, the administration is under no compulsion to provide indictments, evidence, and trial. The government can simply imprison at will.

The Bush administration is using every strategy to push aside the remains of the legal principles that shield the people from arbitrary government power. It is a short step from denying Americans’ constitutional right to a public trial by an impartial jury to denying every other constitutional right. Clearly, on the basis of an indefinite “war” against an indefinite “terrorist enemy,” the Bush regime is attempting to claim powers that are not limited by the Constitution, Congress, or the courts. It is a life-and-death matter for Americans to understand that the Bush administration is seeking to undermine all rights by shutting off the procedural avenues for enforcing rights.

Few Americans seem alarmed. Conservative attorneys, such as members of the Federalist Society who present themselves as defenders of “original intent,” are pushing for more power to be concentrated in the executive. One of the tools used to obtain this goal is Bush’s misuse of “signing statements.” Scholars, such as Phillip J. Cooper of Portland State University writing in the September 2005 issue of Presidential Studies Quarterly, warn that Bush uses signing statements not only as illegal line-item vetoes that evade congressional override but also as “wide-ranging assertions of exclusive authority and court-like pronouncements that redefine legislative powers under the Constitution. They reveal a systematic effort to define presidential authority in terms of the broad conception of the prerogative both internationally and domestically under the unitary executive theory.”

Signing statements deserve a closer look than they are receiving. There is no provision in the Constitution for signing statements. Courts often look to congressional debates and proceedings to ascertain legislative intent when a statute’s meaning is not obvious. The Bush administration is endeavoring to establish the judicial practice of also looking to the president’s signing statements in the same way, an absurd idea as the president does not enact legislation. President Bush’s use of signing statements signals the refusal of the executive branch to abide by the rule of law, a frightening prospect.

A growing number of thoughtful Americans believe, rightly or wrongly, that the “war on terror” is a hoax that is providing cover for what former President Nixon’s White House counsel, John

W. Dean, says is an assault on American liberty by “authoritarian conservatives.” Time will tell whether Americans will continue to tolerate the neoconservatives’ wars and attacks on civil liberty.

The Case of Sami Al-Arian

The demise of the Rights of Englishmen, the unaccountability of police and prosecutors, the witch-hunt atmosphere created by the “war on terror,” the government’s need to find terrorist suspects in order to maintain the public’s alarm, and the sadistic and bigoted attitudes of many prison guards and even federal prosecutors and judges toward Muslims have resulted in the use of law for persecution. The case of Sami Al-Arian, who was a professor of computer science at the University of South Florida, is a pure example of the use of law as a weapon for persecution.

Most Americans know only the Israeli side of the Israeli-Palestinian conflict. The Palestinian side is rarely heard. Even prominent Americans, such as former president Jimmy Carter, who point out that there are two sides to the story, are subjected to demonization and name-calling. Sami Al-Arian was gaining success as a voice for a more even-handed Middle East policy. He spoke to intelligence personnel and military commanders at MacDill Air Force Central Command. He gave interviews. He even invited the FBI to attend meetings where he spoke.

This was too much for the Israeli Lobby, which has enjoyed a total monopoly on the explanation of the Israeli-Palestinian conflict in the United States. The hysteria following 9/11 created the opportunity to destroy Sami Al-Arian. Alexander Cockburn (CounterPunch, March 3, 2007) reports that “at the direct instigation of Attorney General Ashcroft” trumped-up terrorism and conspiracy charges were leveled at Al-Arian.

The neoconservative media and right-wing talk radio went to work on Al-Arian. Pushed by Gov. Jeb Bush, the university fired him. He was arrested and deemed too dangerous for bail. He was held in solitary confinement for two and a half years while the federal government tried to manufacture some evidence against him. Wikipedia reports that “Amnesty International said Al-Arian’s pre-trial conditions ‘appeared to be gratuitously punitive’ and stated ‘the restrictions imposed on Dr. Al-Arian appeared to go beyond what were necessary on security grounds and were inconsistent with international standards for humane treatment.’”

The government failed to produce any evidence. The jury acquitted Al-Arian on all serious charges and voted 10–2 for acquittal on all other charges. The jury acquitted him despite U.S. District Court judge James Moody’s many biased rulings against Al-Arian.

Knowing that Al-Arian and his family could not stand the strain of solitary confinement for another two and a half years while a new case was prepared, the U.S. Department of Justice announced that it would retry him. His attorney urged him to make a plea in order to end the ordeal.

Al-Arian’s plea is innocuous and bears no relationship to the serious charges on which he was tried. According to Wikipedia, as part of the plea agreement “the government acknowledged that Al-Arian’s activities were non-violent and that there were no victims to the charge in the plea agreement.”

Under the plea agreement, Al-Arian’s sentence amounted essentially to time served, but he was double-crossed by Judge Moody, who according to Alexander Cockburn used “inflamed language about Al-Arian having blood on his hands” (a charge rejected by the jury) and handed down the maximum sentence.

The “terrorist” prosecutors had yet more in store for Al-Arian. In October 2006, federal prosecutor Gordon Kromberg, reportedly “notorious as an Islamophobe,” demanded, in violation of the plea agreement, that Al-Arian testify before a grand jury in Alexandria, Virginia, investigating an Islamic research center. According to Wikipedia, “in a verbal agreement that appears in court transcripts, federal prosecutors agreed [as part of the plea agreement] that Al-Arian would not have to testify in Virginia.”

Al-Arian’s lawyers saw Kromberg’s subpoena of their client as a setup, and Al-Arian refused to testify. On January 22, 2007, Al-Arian was brought before a federal judge on contempt charges. He described to the judge the extraordinary abuse he had suffered at the hands of federal prison officials. The guards and officers all felt free to abuse Al-Arian, because they had heard the lie on right-wing talk radio and from neoconservative media that he was a terrorist who hated Americans. The hostile judge sentenced Al-Arian to eighteen months more on a civil contempt charge for refusing to testify about a case that he knew nothing about.

Kromberg contrived to put Al-Arian in a situation in which truthful answers in court under oath could be turned into a perjury charge by offering the defendants reduced charges in exchange for their testimony that Al-Arian was involved with them in some alleged activity and lied under oath. Alternatively, Al-Arian would be cited for civil contempt for refusal to testify. The ease with which Kromberg violated the plea agreement and abused the prosecutorial power in full view of federal judges should give pause to every American.

When a university professor, who has done nothing but try to correct the one-sided story Americans are fed about the Israeli-Palestinian conflict, can be treated in this way by the U.S. Department of Justice, civil liberty in the United States is in a precarious condition.

The ease with which Al-Arian was transformed into a terrorist should be a lesson to us all. People in charge of Homeland Security are no less inclined than police and prosecutors to make expansive interpretations of their mandate and what constitutes terrorism and suspect behavior. On May 28, 2007, the Associated Press reported that the Alabama Department of Homeland Security had included among terrorist groups listed on its Web site environmentalists, antiwar protesters, abortion opponents, and gay- and animal-rights advocates. It is an ancient practice of government to hype fear in order to gain arbitrary power that can be turned against anyone. Perhaps this expansive definition of terrorist explains the eighty thousand names on the government’s no-fly list.

Another problem with arbitrary and undefined power is that it ends up being exercised by people who tend to receive low marks for good judgment and intelligence. English film director Mike Figgis was held for five hours in an interrogation cell at Los Angeles International Airport because U.S. immigration officers are unfamiliar with the professional language of television show producers and lacked the common sense to avoid a misunderstanding. When asked the reason for his visit, Figgis said: “I’m here to shoot a pilot.” “Shoot,” of course, means to film, and “pilot” is the first episode of a new TV show. The people providing our security concluded that Figgis had voluntarily confessed to a plot to come to America in order to murder an airline pilot. Figgis survived his assumption that people in Los Angeles understood movie talk, but the desire of people empowered to thwart terrorism to use their power is great. Any excuse will do.

Sliding Toward Dictatorship

The assaults of the Bush regime on civil liberty, the Constitution, and the separation of powers are more determined and more successful than its military assaults on the Middle East, which provide the “war time” justification for the attack on civil liberty in the United States. The regime and its supporters are determined to raise the president to dictatorial powers, at least in times of war, the initiation of which is being turned into a presidential prerogative.

On May 9, 2007, President Bush signed the National Security and Homeland Security Presidential Directive. If in the president’s opinion a “catastrophic emergency” occurs, the directive places all governmental power in the hands of the president, effectively abolishing the checks and balances in the Constitution. Underlying this directive is the “unitary executive” doctrine, a theory pushed by the Federalist Society, an important source of law clerks, DOJ appointees, and judicial nominees for the Republican Party. The doctrine, supported by Supreme Court justices such as Samuel Alito, claims that the executive power of the president is completely separate and independent of the legislative and judicial powers and not subject to infringement by them. The manner in which this doctrine is being institutionalized is creating the additional claim that executive power is the supreme power. In effect, unitary executive theory is elevating the president to a dictator with the power to ignore or suspend laws.

The unitary executive doctrine is a direct attack on the constitutional separation of powers established by the Founding Fathers. One of the alleged advantages of the unitary executive is that the president can act more quickly and efficiently if he is not subject to interference from Congress and the judiciary. However, as Justice Louis Brandeis explained in 1926, “the doctrine of the separation of powers was adopted by the convention of 1787 not to promote efficiency but to preclude the exercise of arbitrary power. The purpose was not to avoid friction, but, by means of the inevitable friction incident to the distribution of the governmental powers among three departments, to save the people from autocracy.”

News reports that the Bush administration has contracted with Halliburton to build detention centers in the United States at a cost of $385 million revive memories of the World War II detention of Japanese American citizens. It has not been explained who are the intended detainees for the new detention centers. Do the American people want to trust with detention centers an executive branch, which claims the power to set aside habeas corpus, statutory law, due process, and the prohibition against torture?

Polls show that 36 percent of the American public and more than half of New Yorkers lack confidence in the 9/11 Commission Report. Despite a significant percentage of the public’s disbelief in the explanation of the event that took America to war in the Middle East, Congress and the media continue to tolerate the Bush administration’s aggressive rhetoric, which seeks to widen the “war on terror” from Afghanistan and Iraq to Iran, Syria, and Lebanon. The diligence with which Vice President Cheney and the neoconservatives press for an attack on Iran, and the extreme position that the Bush administration has taken on executive power, raise the question whether the Bush administration has an agenda that takes precedence over America’s constitutional democracy.

Never in its history have the American people faced such danger to their constitutional protections as they face today from those in the government who hold the reins of power and from elements of the legal profession and the federal judiciary that support “energy in the executive.” An assertive executive backed by an aggressive U.S. Department of Justice and unobstructed by a supine Congress and an intimidated corporate media has demonstrated an ability to ignore statutory law and public opinion. The precedents that have been set during the opening years of the twenty-first century bode ill for the future of American liberty.

PAUL CRAIG ROBERTS and LAWRENCE M. STRATTON

Counterpunch