[Mb-civic] First They Came For The Terrorists...

[ean at sbcglobal.net]

         http://www.commondreams.org/views05/0110-33.htm
  Published on Monday, January 10, 2005 by CommonDreams.org  

First They Came For The Terrorists...  
by Thom Hartmann 
  
The Gonzales confirmation is not just about the torture memos. It's 
much bigger than that. 

If Bush continues to roll back human and civil rights - and the 
installation of Alberto Gonzalez as America's chief law enforcement 
officer is very much a part of his campaign to do so - we may be 
facing a "Pastor Niemöller moment" sooner than most of us could 
have imagined. 

Tuesday, January 10, 2005, is the third anniversary of the opening 
of America's first concentration camp since Japanese Americans 
were shamefully interred during WWII. Since the first Guantanamo 
camp was opened, the Bush administration has built additional 
concentration camps - the latest known as Camp Five - in Cuba, 
and is asking Congress for $29 million to build concentration Camp 
Six. 

These concentration camps detain uncharged, untried, unconvicted 
individuals, who may be held for the rest of their lives because, as 
the UK's Guardian newspaper noted on January 5th of this year, the 
Bush administration "lacks proof" that they are either criminals or 
POWs. 

This is one of the more visible parts of a much larger campaign the 
Bush administration has embarked on to reverse not only 229 years 
of the American rule of law regarding the rights of average citizens, 
but nearly eight centuries of human rights that go back to an epic 
moment in 1215 on a meadow by the River Thames. 

The modern institution of civil and human rights, and particularly the 
writ of habeas corpus, began in June of 1215 when King John was 
forced by the feudal lords to sign the Magna Carta at Runnymede. 
Although that document mostly protected "freemen" - what were 
then known as feudal lords or barons, and today known as CEOs 
and millionaires - rather than the average person, it initiated a series 
of events that echo to this day. 

Two of the most critical parts of the Magna Carta were articles 38 
and 39, which established the foundation for what is now known as 
"habeas corpus" laws (literally, "produce the body" from the Latin - 
meaning, broadly, "let this person go free"), as well as the Fourth 
through Eighth Amendments of our Constitution and hundreds of 
other federal and state due process provisions. 

Articles 38 and 39 of the Magna Carta said: 


"38 In future no official shall place a man on trial upon his own 
unsupported statement, without producing credible witnesses to the 
truth of it. 
"39 No free man shall be seized or imprisoned, or stripped of his 
rights or possessions, or outlawed or exiled, or deprived of his 
standing in any other way, nor will we proceed with force against 
him, or send others to do so, except by the lawful judgment of his 
equals or by the law of the land." 

This was radical stuff, and over the next four hundred years average 
people increasingly wanted for themselves these same protections 
from the abuse of the power of government or great wealth. But 
from 1215 to 1628, outside of the privileges enjoyed by the feudal 
lords, the average person could be arrested and imprisoned at the 
whim of the king with no recourse to the courts. 

Then, in 1627, King Charles I overstepped, and the people 
snapped. Charles I threw into jail five knights in a tax disagreement, 
and the knights sued the King, asserting their habeas corpus right to 
be free or on bail unless convicted of a crime. 

King Charles I, in response, invoked his right to simply imprison 
anybody he wanted (other than the rich), anytime he wanted, as he 
said, "per speciale Mandatum Domini Regis." 

This is essentially the same argument that George W. Bush makes 
today for why he has the right to detain both citizens and non-
citizens solely on his own say-so: because he's in charge. And it's 
an argument supported by Alberto Gonzales. 

But just as George's decree is meeting resistance, Charles' decree 
wasn't well received. The result of his overt assault on the rights of 
citizens led to a sort of revolt in the British Parliament, producing the 
1628 "Petition of Right" law, an early version of our Fourth through 
Eighth Amendments, which restated Articles 38 and 39 of the 
Magna Carta and added that "writs of habeas corpus, [are] there to 
undergo and receive [only] as the court should order." It was later 
strengthened with the "Habeas Corpus Act of 1640" and a second 
"Habeas Corpus Act of 1679." 

Thus, the right to suspend habeas corpus no longer was held by the 
King. It was exercised solely by the people's (elected and 
hereditary) representatives in the Parliament. 

The third George to govern the United Kingdom confronted this in 
1815 when he came into possession of Napoleon Bonaparte. But 
the British laws were so explicit that everybody was entitled to 
habeas corpus - even people who were not British citizens - that 
when Napoleon surrendered on the deck of the British flagship 
Bellerophon after the battle of Waterloo in 1815, the British 
Parliament had to pass a law ("An Act For The More Effectually 
Detaining In Custody Napoleon Bonaparte") to suspend habeas 
corpus so King George III could legally continue to hold him prisoner 
(and then legally exile him to a British fortification on a distant 
island). 

Ironically, the third George to govern the United States now says, 
190 years later, that unlike England's George III, he does not need 
an act of Congress to detain people or exile them to camps on a 
distant island. 

To facilitate this, our Third George, and his able counselor Judge 
Gonzales, have brought forth new "legal" terms - "enemy 
combatant" and "terrorist" - and invented a new set of law and rights 
(or non-laws and non-rights) for people they label as such. 

It's a virtual repeat of Charles I's doctrine that a nation's ruler may 
do whatever he wants because he's the one in charge - "per 
speciale Mandatum Domini Regis." 

Interestingly, the United States Constitution does provide for special 
exceptions to the involuntary detention of persons - it is legal to 
suspend habeas corpus. But the Constitution says it can only be 
done by Congress, not by the President. 

Article I of the Constitution outlines the powers and limits of the 
Legislative Branch of government (Article 2 lays out the Executive 
Branch, and Article 3 defines the Judicial Branch). In Section 9, 
Clause 2 of Article I, the Constitution says of the Legislative 
branch's authority: "The Privilege of the Writ of Habeas Corpus shall 
not be suspended, unless when in Cases of Rebellion or Invasion 
the public Safety may require it." 

Abraham Lincoln was well aware of this during the Civil War, and 
was the first president to successfully ask Congress (on March 3, 
1863) to suspend habeas corpus so he could imprison those he 
considered a threat until the war was over. Congress invoked this 
power again during Reconstruction when President Grant requested 
The Ku Klux Klan Act in 1871 to put down a rebellion in South 
Carolina. 

But President George W. Bush has not asked Congress for, and 
has not been granted, a suspension of habeas corpus for his so-
called "war on terrorism," a "war" which he and his advisors have 
implied may last well beyond our lifetimes. 

Nonetheless, our President, with consent of his Counsel Mr. 
Gonzales, has locked people up, "per speciale Mandatum Domini 
Regis." Some of their names are familiar to us - US citizens Jose 
Padilla and Yaser Hamdi, for example - but there are hundreds 
whose names we are not even allowed to know. Perhaps 
thousands. It's a state secret, after all. Per speciale Mandatum 
Domini Regis. 

But how do we deal with people who want to kill us, to destroy our 
nation, to terrorize us? 

Every president from George Washington to Bill Clinton has 
understood that there are two categories of people who can be 
incarcerated legally - Prisoners of War and criminals. The former 
have rights under both U.S. law and the Geneva Conventions, and 
the latter under the U.S. Constitution. 

These two categories encompass every possible actual threat to a 
nation and its people, and have withstood the test of time from the 
days of King John to today. 

For example, when Bill Clinton was confronted with a heinous act of 
terrorism within the United States - the bombing of the Federal 
Building in Oklahoma City - he didn't declare a "war" on whoever the 
terrorist may be, or suspend habeas corpus. Instead, he 
immediately defined the perpetrators as thugs and criminals, and 
brought the full weight of the American and international criminal 
justice system to bear, capturing Timothy McVeigh and using 
Interpol to search the world for possible McVeigh allies. Justice was 
served, the victims achieved closure, and our rights were left largely 
intact. 

But, just as Hitler and his close advisors used the burning of the 
Reichstag building to declare a perpetual "war on terrorism," and 
then moved to suspend habeas corpus and other rights, so too have 
George W. Bush and Alberto Gonzales. 

The Founders must be turning in their graves. Clearly they never 
imagined such a thing in their wildest dreams. As Alexander 
Hamilton - arguably the most conservative of the Founders - wrote 
in Federalist 84: 


"The establishment of the writ of habeas corpus ... are perhaps 
greater securities to liberty and republicanism than any it [the 
Constitution] contains. ...[T]he practice of arbitrary imprisonments 
have been, in all ages, the favorite and most formidable instruments 
of tyranny. The observations of the judicious [British 18th century 
legal scholar] Blackstone, in reference to the latter, are well worthy 
of recital: 
"'To bereave a man of life,' says he, 'or by violence to confiscate his 
estate, without accusation or trial, would be so gross and notorious 
an act of despotism, as must at once convey the alarm of tyranny 
throughout the whole nation; but confinement of the person, by 
secretly hurrying him to jail, where his sufferings are unknown or 
forgotten, is a less public, a less striking, and therefore A MORE 
DANGEROUS ENGINE of arbitrary government.''' [Capitals all 
Hamilton's from the original.]

While the sexy stuff that members of Congress and the news media 
want to talk about when they question Alberto Gonzales is torture - 
after all, the pictures are now iconic and have worldwide distribution 
- the torture of these and other prisoners in US custody is really a 
subset of a larger issue. 

The bigger question here is whether George W. Bush has the right 
to ignore the U.S. Constitution and international treaties, violate 
human rights and civil liberties, promote "preemptive" wars, and 
build concentration camps for the permanent imprisonment of 
untried and unconvicted individuals - all simply because he says he 
can, per speciale Mandatum Domini Regis. And whether we want 
the chief law enforcement officer of the land, the man who would be 
charged with prosecuting Bush or those in his administration who 
may break the law, to be a man who agrees that Bush stands above 
the law and the Constitution. 

The question, ultimately, is whether our nation will continue to stand 
for the values upon which it was founded. 

Early American conservatives suggested that democracy was so 
ultimately weak it couldn't withstand the assault of newspaper 
editors and citizens who spoke out against it, or terrorists from the 
Islamic Barbary Coast, leading John Adams to pass America's first 
PATRIOT Act-like laws, the Alien and Sedition Acts of 1798. 
President Thomas Jefferson rebuked those who wanted America 
ruled by an iron-handed presidency that could - as Adams had - 
throw people in jail for "crimes" such as speaking political opinion, or 
without constitutional due process. 


"I know, indeed," Jefferson said in his first inaugural address on 
March 4, 1801, "that some honest men fear that a republican 
government cannot be strong; that this government is not strong 
enough. 
"But would the honest patriot,"he continued, "in the full tide of 
successful experiment, abandon a government which has so far 
kept us free and firm, on the theoretic and visionary fear that this 
government, the world's best hope, may by possibility want energy 
to preserve itself? I trust not. 

"I believe this, on the contrary, the strongest government on earth. I 
believe it is the only one where every man, at the call of the laws, 
would fly to the standard of the law, and would meet invasions of the 
public order as his own personal concern." 

The sum of this, Jefferson said, was found in "freedom of person 
under the protection of the habeas corpus; and trial by juries 
impartially selected. These principles form the bright constellation 
which has gone before us, and guided our steps through an age of 
revolution and reformation. 

"The wisdom of our sages and the blood of our heroes have been 
devoted to their attainment. They should be the creed of our political 
faith, the text of civil instruction, the touchstone by which to try the 
services of those we trust; and should we wander from them in 
moments of error or alarm, let us hasten to retrace our steps and to 
regain the road which alone leads to peace, liberty, and safety."

Modern conservatives still revere Burke and Adams and sneer at 
Jefferson, but many are nonetheless alarmed by Bush's 
unprecedented attack on the Constitution. As Russell Kirk wrote in 
his seminal 1953 book "The Conservative Mind" - the book which 
inspired a generation of conservatives from Buckley to Goldwater - 
a "New Society," abandoning the traditional values of America, 
could easily come into being if "radicals" such as Bush were to take 
over our government and discard the Constitution. 

This New Society, Kirk wrote in his chapter "The Promise of 
Conservatism," would be dominated by "the gratification of a lust for 
power and the destruction of all ancient political institutions in the 
interest of the new dominant elites. The great Plan requires that the 
public be kept constantly in an emotional state closely resembling 
that of a nation at war; this lacking, obedience and co-operation 
shrivel..." Kirk adds that "Big Brother remains to show the donkey 
the stick instead of the carrot." 

When I was working in Russia some years ago, a friend in 
Kaliningrad told me a perhaps apocryphal story about Nikita 
Khrushchev, who, following Stalin's death, gave a speech to the 
Politburo denouncing Stalin's policies. A few minutes into 
Khrushchev's diatribe, somebody shouted out, "Why didn't you 
challenge him then, the way you are now?" 

The room fell silent, as Khrushchev angrily swept the audience with 
his glare. "Who said that?" he asked in a reasoned voice. Silence. 

"Who said that?" Khrushchev demanded, leaning forward. Silence. 

Pounding his fist on the podium to accent each word, he screamed, 
"Who - said - that?" Still no answer. 

Finally, after a long and strained silence, the elected politicians in 
the room fearful to even cough, a corner of Khrushchev's mouth 
lifted into a smile. 

"Now you know," he said with a chuckle, "why I did not speak up 
against Stalin when I sat where you now sit." 

The question for our day is who will speak up against George W. 
Bush and his Stalinist policies? Who will speak against the man who 
punishes reporters and news organizations by cutting off their 
access; who punishes politicians by targeting them in their home 
districts; who punishes truth-tellers in the Executive branch by 
character assassination that even extends to destroying their 
spouse's careers? 

Oddly, so far it's only been Justice Antonin Scalia, a man with whom 
I often strongly disagree. Scalia wrote in his minority dissent in the 
case of Hamdi v. Rumsfeld that the President does not have the 
power to suspend habeas corpus by executive decree. Instead, he 
wrote: "If civil rights are to be curtailed during wartime, it must be 
done openly and democratically, as the Constitution requires..." 

Scalia went on to quote Alexander Hamilton from Federalist Number 
8, who noted that: 


"The violent destruction of life and property incident to war; the 
continual effort and alarm attendant on a state of continual danger, 
will compel nations the most attached to liberty, to resort for repose 
and security to institutions which have a tendency to destroy their 
civil and political rights. To be more safe, they, at length, become 
willing to run the risk of being less free." 
"The Founders warned us about the risk," Scalia noted in his Hamdi 
dissent, "and equipped us with a Constitution designed to deal with 
it. 

"Many think it not only inevitable but entirely proper that liberty give 
way to security in times of national crisis..." but, Scalia added, "that 
view has no place in the interpretation and application of a 
Constitution designed precisely to confront war and, in a manner 
that accords with democratic principles, to accommodate it."

How ironic that Justice Scalia was willing to stand up to George W. 
Bush and Alberto Gonzales, but most of the Senate Democrats 
won't. 

The Democrats in Congress say they're going to confirm Judge 
Gonzales and "keep their powder dry" for future, larger battles like 
Supreme Court nominations. But as Pastor Niemöller reminds us, 
the loss of liberty is incremental, not sudden and dramatic. 

One either totally stands for republican democracy, the Constitution, 
and the rule of law in our republic, or one doesn't. Gonzales has 
shown that he does not, both by his prevarication in his confirmation 
hearings, his actions in condoning Bush's illegal suspension of 
habeas corpus and PATRIOT Act abuses of constitutionally-
protected civil and human rights, and his support of other Bush 
decrees implicitly per speciale Mandatum Domini Regis. 

To quote Scalia's summary in the Hamdi case, "Because the Court 
has proceeded to meet the current emergency in a manner the 
Constitution does not envision [by letting the President suspend 
habeas corpus], I respectfully dissent." 

But is dissent enough? 

Or must we work for a wholesale change in our representatives, 
demanding that they either stand up for the principles for which so 
many Americans have fought and died, or leave the political arena 
altogether? 

Where are the true democrats among the Democrats? (Or, for that 
matter, the true republicans among the Republicans?) Have they all 
lost their voices? 

First Bush and Gonzales came for the terrorists, but I was not a 
terrorist, so I did not speak out. Then they came for the enemy 
combatants, but I was not a combatant, so I did not object. Then 
they came for the protestors resisting "free speech zones" near 
Bush campaign rallies, but I was not a protestor and so I only voiced 
my unease. 

If we - and our elected representatives - do not speak out now, 
loudly and forcefully, it may not be long before they come for the 
rest of us. 

Thom Hartmann [thom (at) thomhartmann.com] is a Project 
Censored Award-winning best-selling author and host of a nationally 
syndicated daily progressive talk show. www.thomhartmann.com 
His most recent books include "The Last Hours of Ancient Sunlight," 
"The Prophet's Way," "Unequal Protection," "We The People," "The 
Edison Gene", and "What Would Jefferson Do?." 

###


-- 
You are currently on Mha Atma's Earth Action Network email list, 
option D (up to 3 emails/day).  To be removed, or to switch options 
(option A - 1x/week, option B - 3/wk, option C - up to 1x/day, option 
D - up to 3x/day) please reply and let us know!  If someone 
forwarded you this email and you want to be on our list, send an 
email to ean at sbcglobal.net and tell us which option you'd like.


"In times of universal deceit, telling the truth is a revolutionary act."
   ---   George Orwell


-------------- next part --------------
An HTML attachment was scrubbed...
URL: http://www.islandlists.com/pipermail/mb-civic/attachments/20050110/d480f27f/attachment.html