[Mb-civic] The Police State Is Closer Than You Think

[Mha Atma Khalsa]

The Police State Is Closer Than You Think

http://www.counterpunch.org/roberts10102005.html


Bye-Bye, Habeas Corpus

By Paul Craig Roberts

10/08/05 "ICH"--Police states are easier to acquire
than Americans
appreciate.

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 counter-revolutionaries.

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.]

Copyright © 2005 Creators Syndicate




		
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