- George W. Bush was never elected President by the People
of the United States of America. Instead, he was anointed for that Office
by five Justices of the United States Supreme Court who themselves had
been appointed by Republican Presidents. Bush Jr.'s installation was an
act of judicial usurpation of the American Constitution that was unprecedented
in the history of the American Republic. Had it occurred in a developing
country, such a subversion of democratic process would have been greeted
with knowing derision throughout the West. What happened in America could
only be likened to a judicial coup d'etat inflicted upon the American People,
Constitution, and Republic. There should now be no doubt that the United
States Supreme Court is governed by raw, naked, brutal, power politics.
Justice has nothing at all to do with it. This Supreme Court's constitutional
sophistry proved a harbinger of the new administration's disrespect for
the Rule of Law, whether domestic or international.
- BUSH JR.'S CONSTITUTIONAL COUP D'ETAT
- From the Supreme Court's installation of Bush Jr. as
President to the Ashcroft/Federalist Society post-September 11 regime of
police state "laws," the politico-legal functioning of America
is increasingly resembling that of a Banana Republic. Since September 11th,
we have seen one blow against the U.S. Constitution after another. For
example, Attorney General John Ashcroft unilaterally instituted the monitoring
of attorney-client communications despite the Fourth Amendment ban on unreasonable
searches and seizures and the Sixth Amendment right to representation by
Counsel in criminal cases. He just went ahead and did it, without even
bothering to inform anyone.
- Over 1100 aliens have been picked up and "disappeared"
by Ashcroft and his Department of Injustice. The American People have no
idea where most of these people are. They are being held on the basis of
immigration law, not criminal law, for a period of detention which has
not been defined.
- Ashcroft proclaimed another ukaze that these immigration
proceedings must be held in secret. The phenomenon of "enforced disappearances"
is considered to be a crime against humanity by Article 7(I)(i) of the
Rome Statute for the International Criminal Court.
- It appears that many of these aliens have been deprived
of their basic human rights to consular notification and access as set
forth in the 1963 Vienna Convention on Consular Relations, to which the
United States is a contracting party and which even the U.S. State Department
concedes constitutes binding customary international law. Apparently Bush
Jr.'s left hand does not care about what his right hand does. Yet another
international convention set at naught.
- The one characteristic these detained foreigners have
in common is that they are mostly Muslims, Arabs, and Asians. Everyone
needs a scapegoat for the 11 September tragedy, and it looks like we have
one, both at home and abroad. Thousands more such aliens are being moved
into the pipeline for the Ashcroft gulag by the FBI.
- Ashcroft is now planning to reinstate the infamous COINTELPRO
Program, whose atrocities against the civil rights and civil liberties
of the American People have been amply documented elsewhere.
- It is just a matter of time before the Bush Jr. Leaguers
unleash the newly-augmented powers of the FBI, CIA and NSA directly against
the American People. And we already have 2 million Americans rotting away
in prison -- the highest rate of incarceration in the world, a disproportionate
majority of whom are Americans of Color, victims of the Nixon/Ford, Reagan/Bush,
and Clinton administrations' racist "war on drugs," which is
really a war against People of Color. The American Police State has already
arrived for People of Color!
- ASHCROFT'S POLICE STATE
- This brings the analysis to the Ashcroft Police State
Act. There are no other words to describe it. While Bush failed to get
a formal declaration of war that would have rendered him a constitutional
dictator, clearly Attorney General John Ashcroft and his right-wing Federalist
Society lawyers took every piece of regressive legislation off the shelf,
tied it all into what they called an anti-terrorism bill, and then rammed
it through Congress, giving it the appropriately Orwellian name of the
<U.S.A>. Patriot Act.
- According to one report, Ashcroft's first draft would
have had Congress suspend the ancient Writ of Habeas Corpus - the necessary
prerequisite for imposing a police state in the United States of America.
- Many Members of Congress publicly admitted that they
did not even bother to read the Ashcroft Police State Act. Another Congressman
- "Right, but there's nothing new about that."
Interestingly enough the so-called liberal Democrats in the House and the
Senate were willing to give Bush Jr. and Ashcroft more police state powers
than the conservative Republicans in the House. But there are no real differences
that matter between Republicans and Democrats when it comes to promoting
America's self-proclaimed "Manifest Destiny" to control the World
and now Outer Space too.
- BUSH'S KANGAROO COURTS
- It would take an entire law review article for me to
analyze all the legal and human rights problems with the Bush Jr.'s proposed
military commissions. Here a cabal of Federalist Society Lawyers in the
White House got President Bush to sign an Executive Order on 13 November
2001 which, when implemented, will be widely recognized to constitute a
grave breach of the Geneva Conventions and establish a prima facie case
of criminal accountability against the President himself.
- It is emblematic of this particular war that right towards
its very outset President George W. Bush personally incriminated himself
under both international criminal law and United States domestic criminal
- The Bush Jr. administration has severely undermined the
integrity of the Four Geneva Conventions of 1949. By doing this, the Bush
Jr. administration has opened up U.S. Armed Forces and civilians around
the world to similar reprisals, which has already happened.
- As a licensed attorney for 25 years, a law professor
for 23 years and someone who has done a good deal of criminal defense work
in U.S. Federal Courts, I am appalled by the insinuation of these Federalist
Society Lawyers that America's Federal Courts established by Article III
of the U.S. Constitution cannot hold accountable those responsible for
the crimes of 11 September 2001. This is an insult to all Federal Judges,
Federal Prosecutors, Federal Public Defenders and all the Lawyers who are
Officers of these Courts.
- In one fell stroke these Federalist Society lawyers have
besmirched and undermined the integrity of two Branches of the United States
Federal Government established by the Constitution - the Presidency and
the Judiciary. So far the U.S. Congress has supinely gone along with the
Bush Jr. police state agenda. If and when these Bush/Ashcroft police state
practices make their way to the U.S. Supreme Court, many of them will probably
be upheld. After all, a 5 to 4 majority of the Supreme Court already gave
the Presidency to Bush Jr. We need to seriously consider whether they would
strike down laws and practices that would give Bush Jr. a Police State
- Philosophers have taught that a People get the type of
government they deserve. If the American People permit the Bush Jr. Leaguers
to impose a Police State at home in the name of furthering Pax Americana
abroad, we will have deserved it by abnegating our responsibilities as
Citizens living in what is supposed to be a constitutional Republic with
a commitment to the Rule of Law. The same thing happened to the Romans
and to the Athenians. The United States of America is not immune to the
laws of history.
- Sic transit gloria mundi!
- Francis A. Boyle, Professor of Law, University of Illinois,
is author of Foundations of World Order, Duke University Press, and The
Criminality of Nuclear Deterrence, Clarity Press. He can be reached at: