- 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 reign 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 Bush's attack, but the protection that the principle offers against
arbitrary seizure and detention has been breached. 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 government's 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 man's 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 Stalin's 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 breached 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
- 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 Guantánamo Bay, 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 Senate's 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 military's
budget during wartime. Bush is threatening the Senate with blame for the
deaths of US soldiers who will die because they don't 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 breached 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.
- Stewart's 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 breached, any attorney who gets too
much in the way of a prosecutor's 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 Blackstone's shield of the
innocent would be catastrophic. It would mean the end of America as a land