Monday, December 17, 2007

Magna Carta: "No one is above the law"

by Len Hart, The Existentialist Cowboy

That applies to George W. Bush whose medieval approach to government administration is a subversive throwback. Bush assumes the power to rule by caprice, by whim, by prejudice. He is, by any definition, a tyrant. The impending sale of a 13th century copy of Magna Carta, called by Sotheby's chairman David Redden "the birth certificate of freedom", is a dramatic reminder of what has been lost to Bush's attacks on the very rule of law.
I can perceive nothing but a certain conspiracy of rich men procuring their own commodities under the name and title of the commonwealth.

They invent and devise all means and crafts, first how to keep safely, without fear of losing, that they have unjustly gathered together, and next how to hire and abuse the work and labour of the poor for as little money as may be. These devices, when the rich men have decreed to be kept and observed for the commonwealth’s sake, that is to say for the wealth also of the poor people, then they be made laws.But these most wicked and vicious men, when they have by their insatiable covetousness divided among themselves all those things, which would have sufficed all men, yet how far be they from the wealth and felicity of the Utopian commonwealth? Out of the which, in that all the desire of money with the use of thereof is utterly secluded and banished, how great a heap of cares is cut away! How great an occasion of wickedness and mischief is plucked up by the roots!

--Sir Thomas More (1478–1535), Utopia
An original copy of the Magna Carta is to be sold by a New York auction house to the highest bidder. Some history. English nobles literally forced King John I to sign the Magna Carta at Runnymede in 1215. It is, therefore, a document "of unprecedented value to Western civilization". In it there is a line in Latin which reads: "No one is above the law."
If the Magna Carta is not the birth certificate of Democracy, it is the death certificate of despotism. It spells out for the first time the fundamental principle that the law is not simply the whim of the king. The law is an independent power unto itself. And the King could be brought to book for violating it!"

—Simon Schama, History of Britain

Magna Carta is among the most influential developments in the history of constitutional law and may be found throughout the extensive body of common law, English law, and various US documents. Let's put this in the vernacular and in perspective. I have almost 1000 years of settled law on my side. Bush has jack shit!

It is impossible to over-emphasize the significance of Magna Carta whose principles appear throughout the histories of democracies since the English Petition of Right, the Mayflower Compact, The Virginia Declaration of Rights, The Declaration of Independence, The Constitution and the Bill of Rights, The Nuremberg Principles, and every US Supreme Court decision that has upheld the right of persons to be free of arbitrary rule, to be secure in their homes, to be free of unreasonable arrest in the absence of probable cause that a crime has been committed.

By contrast, totalitarian states have their philosophical roots in Hegelianism, a straight road to both Nazism and Stalinism. You will find GOP die hards on this dark side of the road. Because the Bush administration is aligned with medievalist and state absolutist ideologues, CIA Director Gen. Michael Hayden cannot be sufficiently condemned or excoriated for having denied that "probable cause" was the demonstrable standard that must be met before the state may proceed, in any way, against an individual. Those two words --probable cause --stand between you and a tyrant! I simply cannot and will not recognize the legitimacy of any Bush decree, lie, or obfuscation to the contrary. Bush is an outlaw who has our every law and tradition aligned against him.

The Military Commissions Act of 2006, for example, is, of course, unconstitutional. But worse --it is seditious and revolutionary, abrogating habeas corpus, the presumption of innocence and the rule of law itself.
With a bill as pernicious as this one, it is difficult to settle on a single worst provision. The restrictions on the right of habeas corpus probably qualify, but the bill's over broad definition of "unlawful enemy combatant" runs a close second. ...The bill's different treatment of citizens and aliens reflects political calculations, not legal ones. As the UK House of Lords found in 2004 in ruling against indefinite detention, such a distinction cannot be justified under international law.

--The Military Commissions Act of 2006: A Short Primer, Joanne Mariner, Findlaw

Bush has simply declared himself free to ignore those laws he doesn't like, free to enforce only those laws he likes. He stated that he might simply ignore the McCain amendment which outlaws cruel, inhuman, and degrading treatment of detainees. He should have been impeached at that very moment. Sadly, Congress was already complicit or, at the very least, compromised.

There is only one reason Bush would want to ignore such a law: he wishes to continue to preside over "procedures" which violate the US Constitution and laws. He wishes to continue to authorize procedures that are cruel, inhuman, and degrading. I think Bush has a personal problem. I think Bush is, like Larry Craig and numerous others in this sorry party, a perver. Bush cannot escape his history, the glee with which he described a mass summary execution, the delight he found in ramming firecrackers up toads so that he can watch them explode in mid-air. This is a latter-day Topcliffe, monster who presumes to occupy the our oval office. His delight in aggressive war, mass destruction and sadistic torture practices has nothing to do with national security. We less safe and the world is a more dangerous place for as long as Bush has any power at all.

Bush, thus, provides potential "terrorists" a cause celebre. Certainly, terrorism is always worse under GOP regimes. Not content to have thumbed his nose at our laws, traditions, and country, Bush is hell-bent on making it the object of hate and derision. Bush is a lawless menace to civilization, a cretin, a throwback, a liar. It must be shouted from the rooftops. Bush's "administration" is nothing less than rule by decree, a tyranny, inconsistent with the rule of law itself. It is subversive and treasonous.

There is, by contrast, another road that runs straight from Magna Carta to our own Declaration of Independence, Constitution, and Bill of Rights, the principle of Habeas Corpus.
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 judgement of his equals or by the law of the land.

--Magna Carta

Bush claims that he may simply dismiss every US law and the mountainous body of US case law inspired by that principle. He need only declare anyone with whom he disagrees an "enemy combatant". US actions following this heinous absurdity fly in the face of every principle mentioned and linked to in this article. At least 1,000 years of law, heritage, English Common Law and US Case Law affirming the very rule of law say that Bush is dead wrong!

The history of the Magna Carta is the history of a would-be tyrant who had presumed to rule arbitrarily and absolutely. English barons were having none of it. The barons reserved for themselves sweeping powers of appointment, clearly, a check on what might have been the absolute power of the King.
We will appoint as justices, constables, sheriffs, or other officials, only men that know the law of the realm and are minded to keep it well.

--Magna Carta

It is tempting to find in that clause the birth of the separation of powers. By appointing justices, the barons took powers of a judiciary away from King John. Bush has all but reversed this historical trend. He has assumed for himself a judicial power to decree who is and who is not a "terrorist".

In the meantime, Democrats debate how many angels may dance on the head of a pin, falling to challenge the biggest red herring in US history: terrorism. Democrats bought into the paradigm and lost by doing so. Hilary, for example, supported both the phony war on terrorism and the failed war against the phantom menace in Iraq. She has no moral authority, no place from which the launch the counter-attack against Bush. Democrats, America's last hope, have betrayed the nation and shot themselves in the foot.

By doing nothing, Democrats conferred legitimacy upon an illegitimate usurper. Sen. Joseph Biden, though he now says has no confidence in "this President", attacked only Bush's lack of a plan, not the fraudulent nature of the war itself, As far as I know, no Democrat has dared call Bush's regime "illegitimate" though it most certainly is. Voters are left no other choice but to support a Democratic nomination. Slim hopes beat none at all, I suppose. Is it too much to ask that our "leaders" at least give lip service to the legitimate concerns of a disaffected people.

Political rhetoric is just more of the same when, in fact, nothing is the same. How could Democrats have missed the sea change that has taken place, the fundamental challenges to Constitutional government? Where is the outrage? |Where is courage? What are the implications? Simply, the Bush junta has subverted the US Constitution and some 1,000 years of progress. Are we to expect a nation of some 300 millions to just walk willingly into a tyrannical dark age?

The Magna Carta and Habeas Corpus

Habeas Corpus

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