Via NY Transfer News Collective * All the News that Doesn't Fit
Info Clearing House - Oct 8, 2005
The Police State Is Closer Than You Think
Bye-Bye, Habeas Corpus
By Paul Craig Roberts
10/08/05 "ICH"--Police states are easier to acquire than Americans
The hysterical aftermath of September 11 has put into place the main
components of a police state.
Habeas corpus is the greatest protection Americans have against a police
state. Habeas corpus ensures that Americans can only be detained by law.
They must be charged with offenses, given access to attorneys, and brought
to trial. Habeas corpus prevents the despotic practice of picking up a
person and holding him indefinitely.
President Bush claims the power to set aside habeas corpus and to dispense
with warrants for arrest and with procedures that guarantee court appearance
and trial without undue delay. Today in the US, the executive branch claims
the power to arrest a citizen on its own initiative and hold the citizen
indefinitely. Thus, Americans are no longer protected from arbitrary arrest
and indefinite detention.
These new "seize and hold" powers strip the accused of the protective
aspects of law and give rein to selectivity and arbitrariness. No warrant is
required for arrest, no charges have to be presented before a judge, and no
case has to be put before a jury. As the police are unaccountable, whoever
is selected for arrest is at the mercy of arbitrariness.
The judiciary has to some extent defended habeas corpus against Bushs
attack, but the protection that the principle offers against arbitrary
seizure and detention has been breeched. Whether courts can fully restore
habeas corpus or whether it continues in weakened form or passes by the
wayside remains to be determined.
Americans may be unaware of what it means to be stripped of the protection
of habeas corpus, or they may think police authorities would never make a
mistake or ever use their unbridled power against the innocent. Americans
might think that the police state will only use its powers against
terrorists or "enemy combatants."
But "terrorist" is an elastic and legally undefined category. When the
President of the United States declares: "You are with us or against us,"
the police may perceive a terrorist in a dissenter from the governments
policies. Political opponents may be regarded as "against us" and thereby
fall in the suspect category. Or a police officer may simply have his eye on
another mans attractive wife or wish to settle some old score. An enemy
combatant might simply be an American who happens to be in a foreign country
when the US invades. In times before our own when people were properly
educated, they understood the injustices that caused the English Parliament
to pass the Habeas Corpus Act of 1679 prohibiting the arbitrary powers that
are now being claimed for the executive branch in the US.
The PATRIOT Act has given the police autonomous surveillance powers. These
powers were not achieved without opposition. Civil libertarians opposed it.
Bob Barr, the former US Representative who led the impeachment of President
Clinton, fought to limit some of the worst features of the act. But the act
still bristles with unconstitutional violations of the rights of citizens,
and the newly created powers of government to spy on citizens has brought an
end to privacy.
The prohibition against self-incrimination protects the accused from being
tortured into confession. The innocent are no more immune to pain than the
guilty. As Stalins show trials demonstrated, even the most committed leaders
of the Bolshevik revolution could be tortured into confessing to be
The prohibition against torture has been breeched by the practice of plea
bargaining, which replaces jury trials with negotiated self-incrimination,
and by sentencing guidelines, which transfer sentencing discretion from
judge to prosecutor. Plea bargaining is a form of psychological torture in
which innocent and guilty alike give up their right to jury trial in order
to reduce the number and severity of the charges that the prosecutor brings.
The prohibition against physical torture, however, held until the US
invasions of Afghanistan and Iraq. As video, photographic, and testimonial
evidence make clear, the US military has been torturing large numbers of
people in its Iraq prisons and in its prison compound at Guantanamo, Cuba.
Most of the detainees were people picked up in the equivalent of KGB
Stalin-era street sweeps. Having no idea who the detainees are and pressured
to produce results, torture was applied to coerce confessions.
Everyone is disturbed about this barbaric and illegal practice except the
Bush administration. In an amendment to a $440 billion defense budget bill
last Wednesday, the US Senate voted 90 to 9 to ban "cruel, inhuman or
degrading treatment or punishment" of anyone in US government custody.
President Bush responded to the Senates will by repeating his earlier threat
to veto the bill. Allow me to torture, demands Bush of the Senate, or you
will be guilty of delaying the militarys budget during wartime. Bush is
threatening the Senate with blame for the deaths of US soldiers who will die
because they dont get their body armor or humvee armor in time.
It will be a short step from torturing detainees abroad to torturing the
accused in US jails and prisons.
The attorney-client privilege, another great achievement, has been breeched
by the Lynne Stewart case. As the attorney for a terrorist, Stewart
represented her client in ways disapproved by prosecutors. Stewart was
indicted, tried, and convicted of providing material support to terrorists.
Stewarts indictment sends a message to attorneys not to represent too
dutifully or aggressively clients who are unpopular or demonized. Initially,
this category may be limited to terrorists. However, once the
attorney-client privilege is breeched, any attorney who gets too much in the
way of a prosecutors case may experience retribution. The intimidation
factor can result in an attorney presenting a weak defense. It can even
result in attorneys doing as the Benthamite US Department of Justice (sic)
desires and helping to convict their client.
In the Anglo-American legal tradition, law is a shield of the accused. This
is necessary in order to protect the innocent. The accused is innocent until
he is proven guilty in an open court. There are no secret tribunals, no
torture, and no show trials.
Outside the Anglo-American legal tradition, law is a weapon of the state. It
may be used with careful restraint, as in Europe today, or it may be used to
destroy opponents or rivals as in the Soviet Union and Nazi Germany.
When the protective features of the law are removed, law becomes a weapon.
Habeas corpus, due process, the attorney-client privilege, no crime without
intent, and prohibitions against torture and ex post facto laws are the
protective features that shield the accused. These protective features are
being removed by zealotry in the "war against terrorism."
The damage terrorists can inflict pales in comparison to the loss of the
civil liberties that protect us from the arbitrary power of law used as a
weapon. The loss of law as Blackstones shield of the innocent would be
catastrophic. It would mean the end of America as a land of liberty.
[Dr. Roberts is John M. Olin Fellow at the Institute for Political Economy
and Research Fellow at the Independent Institute. He is a former associate
editor of the Wall Street Journal, former contributing editor for National
Review, and a former assistant secretary of the U.S. Treasury. He is the
co-author of The Tyranny of Good Intentions.]