Tuesday, January 24, 2006

Everything you learned in Civics Class is no longer operative

Every American school child is taught that in the United States, people have “unalienable rights,” heralded by the Declaration of Independence and enshrined in the U.S. Constitution and Bill of Rights. Supposedly, these liberties can’t be taken away, but they are now gone.

Today, Americans have rights only at George W. Bush’s forbearance. Under new legal theories – propounded by Supreme Court nominee Samuel Alito and other right-wing jurists – Bush effectively holds all power over all Americans.

He can spy on anyone he wants without a court order; he can throw anyone into jail without due process; he can order torture or other degrading treatment regardless of a new law enacted a month ago; he can launch wars without congressional approval; he can assassinate people whom he deems to be the enemy even if he knows that innocent people, including children, will die, too.

Under the new theories, Bush can act both domestically and internationally. His powers know no bounds and no boundaries.

Bush has made this radical change in the American political system by combining what his legal advisers call the “plenary” – or unlimited – powers of the Commander in Chief with the concept of a “unitary executive” in control of all laws and regulations.

Yet, maybe because Bush’s assertion of power is so extraordinary, almost no one dares connect the dots. After a 230-year run, the “unalienable rights” – as enunciated by Thomas Jefferson, James Madison and the Founding Fathers – are history.

Legal Analysis

The Justice Department spelled out Bush’s latest rationale for his new powers on Jan. 19 in a 42-page legal analysis defending Bush’s right to wiretap Americans without a warrant.

Bush’s lawyers said the congressional authorization to use force against the perpetrators of the Sept. 11, 2001, terrorist attacks “places the President at the zenith of his powers” and lets him use that authority domestically as well as overseas. [NYT, Jan. 20, 2006]

According to the analysis, the “zenith of his powers” allows Bush to override both the requirements of the Fourth Amendment, which protects against searches and seizures without court orders, and the 1978 Foreign Intelligence Surveillance Act, which created a special secret court to approve spying warrants inside the United States.

In its legal analysis, the Justice Department added, “The president has made clear that he will exercise all authority available to him, consistent with the Constitution, to protect the people of the United States.”

While the phrase “consistent with the Constitution” sounds reassuring to many Americans, what it means in this case is that Bush believes he has unlimited powers as Commander in Chief to do whatever he deems necessary in the War on Terror.

Since the War on Terror is a vague concept – unlike other wars the United States has fought – there also is no expectation that Bush’s usurpation of traditional American freedoms is just a short-term necessity. Instead it is a framework for future governance.

For a time, some Americans also may have thought that Bush’s commander-in-chief powers applied only to foreigners linked to al-Qaeda and to the occasional American who collaborated with the terrorist group. So they didn’t mind much when Jose Padilla was arrested in Chicago and locked up without charge as an “enemy combatant.”

That indefinite detention might have violated the constitutional principle of habeas corpus – the requirement that every citizen has a right to due process and a fair trial – but many Americans were swayed when Bush called Padilla a “bad guy” who was getting what he deserved.

Now, Americans have learned that Bush considers his powers to extend to a much broader category of citizens. That is the significance of Bush’s warrantless wiretapping program directed against hundreds of American targets at any one time.

In bypassing the Foreign Intelligence Surveillance Act, Bush demonstrated his belief, too, that he has the power to ignore specific laws as well as broader constitutional principles.

Lies and Lies

Another factor complicating the ability of Americans to understand the emerging constitutional crisis is that Bush has shown a readiness to lie about the cases.

For instance, though he secretly approved the wiretap program in 2002, he kept telling the public that wiretaps could only be done with court warrants. In a speech in Buffalo, N.Y., on April 20, 2004, Bush went out of his way to state that he had not abrogated the rights of American citizens under the Fourth Amendment.

“By the way, any time you hear the United States government talking about wiretap, it requires – a wiretap requires a court order,” Bush said. “Nothing has changed, by the way. When we’re talking about chasing down terrorists, we’re talking about getting a court order before we do so.”

After the warrantless wiretaps became public in December 2005, Bush continued to misrepresent the program, calling it “limited” to “taking known al-Qaeda numbers – numbers from known al-Qaeda people – and just trying to find out why the phone calls are being made.”


(Robert Parry broke many of the Iran-Contra stories in the 1980s for the Associated Press and Newsweek. His latest book, Secrecy & Privilege: Rise of the Bush Dynasty from Watergate to Iraq, can be ordered at secrecyandprivilege.com. It's also available at Amazon.com, as is his 1999 book, Lost History: Contras, Cocaine, the Press & 'Project Truth.' )


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