Bush's Conspiracy to Create an American Police State: Part VII, The Government Denies 'Due Process of Law'

by Len Hart, the Existentialist Cowboy

The Bush administration is credibly compared to a cult. Like Hitler's 'Third Reich', its assault on civil liberties and democracy have resulted in a 'state' bearing no resemblance to the one created or envisioned by the 'founders' and ratified September 17, 1787. Like the history of any 'police state', a history of the Bush administration must chronicle its methodical, deliberate dismantling of 'Due Process of Law'

There's a lot of anxiety inside the -- you know, our professional military and our intelligence people. Many of them respect the Constitution and the Bill of Rights as much as anybody here, and individual freedom. So, they do -- there's a tremendous sense of fear. These are punitive people. One of the ways -- one of the things that you could say is, the amazing thing is we have been taken over basically by a cult, eight or nine neo-conservatives have somehow grabbed the government. Just how and why and how they did it so efficiently, will have to wait for much later historians and better documentation than we have now, but they managed to overcome the bureaucracy and the Congress, and the press, with the greatest of ease.

--Seymour Hersh, We've Been Taken Over By a Cult

It is a 'cult' which has historically opposed what good Americans, legal scholars, historians, and jurists call 'Due Process of Law'. Due Process of Law is the difference between a tyranny and legitimate government, between a free citizenry and slavery, between totalitarian decrees and Democracy.

American history is stained by the likes of Prescott Bush and other fascists and fascist sympathizers who found in "Due Process of Law" an obstacle to their dreams of installing a fascist dictatorship in America. While the Project for the New American Century openly pined for a 'catalyzing event like Pearl Harbor' that would rally Americans to their fascist dreams, the real Pearl Harbor thrust the US into a great world war that was, presumably, intended to defeat the fascist threat once and for all. Simply, with the defeat of the Axis powers, all the fascists but those in America were defeated. Here, under Bush, the threat of fascism to the Due Process of Law has never been greater.

'Due Process of Law' in the US is codified in the Fifth and the Fourteenth Amendments to the Constitution and in the principle of Habeas Corpus, codified in Article I, Section IX, US Constitution.

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

US Constitution, Fifth Amendment, Findlaw

Also see: US Constitution: Fourteenth Amendment, likewise at Findlaw.

Following is what the US Constitution has to say about the writ of habeas corpus:

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.

--US Constitution, Article I, Section 9

It doesn't take a legal eagle to conclude that 'Due Process of Law' is a major stumbling block to Bush, who most certainly had planned to torture people even before 911 so conveniently gave him the pretext he needed.

“[I]t’s not all about John Yoo. The U.S. didn’t just start torturing its detainees because a government lawyer said it was okay, or because some executive-branch extremist like David Addington determined that anything and everything was permissible in a time of war, or because some dim-witted troops at Abu Ghraib just didn’t know any better. At some point, early on, a decision to allow torture, to enable it, must have been made — and it must have been made at the highest levels of government.”

--Michael Stickings noted.

Many Americans were unconcerned about 'torture'. That was for 'terrorists', they told themselves, forgetting that Bush has assumed dictatorial powers. If Bush merely 'deems' you a 'terrorist', perhaps because you oppose his coup d'etat, you may be termed a 'terrorist'.

According to an explosive ABC News report on April 9, dozens of top-secret meetings took place in the White House, beginning in 2002, in which the president’s top advisors approved the use of torture. Those involved were members of the National Security Council’s “Principals Committee” — Dick Cheney, Condoleezza Rice, Donald Rumsfeld, Colin Powell, George Tenet, and John Ashcroft. Unfortunately, however, these dramatic revelations have been largely ignored by the media and the public. Yet we now know more clearly than ever before that it is because of these senior officials — and not just Animal House on the night shift — that America is regarded around the world as a Torture Nation.

The techniques that the advisors not only approved, but reportedly even choreographed in particular cases amount to torture by any reasonable standard. Near drowning (waterboarding), sleep deprivation,subjection to temperatures of extreme cold (hypothermia), physical assault and stress positions are proscribed by international anddomestic law. They are gulag tactics that have no place in a democratic society. John Ashcroft rightly asked at one point: “Why arewe talking about this in the White House? History will not judge this kindly.”

But according to the report, Condoleezza Rice prevailed, telling the CIA:“This is your baby. Go do it.” Nor does it seem that the president was insulated from these decisions. As the head of the National Security Council, he signed adecision memo in which torture was effectively authorized (February 7, 2002). He has also admitted that the new report is accurate: “And, yes,” he told ABC News, “I’m aware our national security team met on this issue. And I approved.” Commenting on these developments, George Washington University Law Professor Jonathan Turley stated bluntly: “This was a torture program . . . and it goes right to the President’s desk.” He added: “I don’t think there’s any doubt that [the president] was aware of this. The only doubt is simply whether anybody cares enough to do something about it.”

--George Hunsinger, History Will Not Absolve Us

Habeas Corpus' is addressed unambiguously in the body of the US Constitution itself and means, simply, that one cannot be held against his/her will without just or probable cause. You cannot be jailed and held if there are no charges against you. Upon demand, a court must issue a writ of habeas corpus, compelling those holding you to state the reasons for your detention. If there are no good or compelling reasons, you must be released. It was an ancient principle by the time it was codifed in the Magna Carta signed by King John. Bush assumes powers that not even Kings had. Certainly, the Bush administration would have been, should have been compelled to release hundreds, possibly all of the detainees at Guantanamo and the gulag archipelego of US torture centers and concentration camps throughout Eastern Europe.
At last, some of the truth about George W. Bush has hit the mainstream media.

In dozens of top-secret talks and meetings in the White House, the most senior Bush administration officials discussed and approved specific details of how high-value al Qaeda suspects would be interrogated by the Central Intelligence Agency, sources tell ABC News.

The so-called Principals who participated in the meetings also approved the use of “combined” interrogation techniques — using different techniques during interrogations, instead of using one method at a time — on terrorist suspects who proved difficult to break, sources said.

Highly placed sources said a handful of top advisers signed off on how the CIA would interrogate top al Qaeda suspects — whether they would be slapped, pushed, deprived of sleep or subjected to simulated drowning, called waterboarding.
The high-level discussions about these “enhanced interrogation techniques” were so detailed, these sources said, some of the interrogation sessions were almost choreographed — down to the number of times CIA agents could use a specific tactic.

The “Principals,” ABC reported, included Vice President Dick Cheney, Defense Secretary Donald Rumsfeld, Secretary of State Colin Powell, CIA Director George Tenet, Attorney General John Ashcroft, and National Security Advisor Condoleezza Rice, who chaired the meetings.

According to one top official, Ashcroft reportedly asked aloud after one meeting, “Why are we talking about this in the White House? History will not judge this kindly.”
--ABC News, Top Bush Advisors Approved 'Enhanced Interrogation'

Later, Bush's unrelenting subversions of the US Constitution were most often facilitated by Ashcroft's successor --Alberto Gonzales. It was two reversals concerning so-called 'enemy combatants' that compelled Bush to move quickly. Bush summarily dismissed the US District Court in Washington, notifying the court that it no longer had jurisdiction in such cases and may no longer consider "... hundreds of habeas corpus petitions filed by inmates at the Guantanamo Bay prison in Cuba."

Habeas corpus, a Latin term meaning "you have the body," is one of the oldest principles of English and American law. It requires the government to show a legal basis for holding a prisoner. A series of unresolved federal court cases brought against the administration over the last several years by lawyers representing the detainees had left the question in limbo.

—Court Told It Lacks Power in Detainee Cases, Washington Post

Clearly —the bill demanded by Bush and duly passed by the obeisant Congress is unconstitutional on its face. Even the stodgy Wall Street Journal said that the law was "... a stinging rebuke to the Supreme Court", stripping the courts of all jurisdiction to hear habeas corpus claims filed by so-called "enemy combatants" anywhere in the world.

Over two years ago, Rasul v. Bush decided in favor of the Guantanamo detainees, giving them the right to challenge their detentions. More recently, Hamdan v Rumsfeld ruled decisively in favor of the detainees. The decision was blunt and precise, unequivocal. Clearly —Bush's position is un-American yet the issue persists with congress giving Bush an unconstitutional authority to try detainees before military commission while denying courts all judicial review of habeas corpus claims. Re-writing the laws to make legal crimes Bush had already committed was the task assigned to Mssrs Gonazales and Yoo. But Gonzales proved in this Senate hearing that he is more qualified to hold the office of Minister of Propaganda than that of Attorney General.

Gonzales tried to snow the committee with transparent sophistry. Clearly --since Magna Carta habeas corpus is an inalienable right by common law so ingrained in Anglo-Saxon tradition that the founders felt it necessary to prohibit its arbitrary abrogation by any government at any time. As the US Constitution itself establishes in the preamble and as Jefferson affirmed in the Declaration of Independence, government has no inherent powers to withrdaw rights that are clearly possessed already by the people. Moreover, it is the people who imbued the government with whatever powers it possesses. Gonzales' fallacious argument has it the wrong way 'round and betrays his ignorance of elementary principles of Anglo-Saxon jurisprudence. I would suggest he go back to law school. Those traditions, those established principles are, in fact, our jurisprudential heritage, a tradition at least as old as Magna Carta.

US Rep. Darrell Issa said Wednesday he was "outraged" that executive branch officials recently gave a congressional hearing misleading and inaccurate testimony based on information that both the Department of Justice and the White House knew to be untrue.

"We can soft-pedal it a lot of ways, but Congress was lied to," Issa, R-Vista, said in a Wednesday phone interview from his Washington office.
-- Issa: 'Congress was lied to'Calls for ouster of attorney general if involved in providing false information to lawmakers, WILLIAM FINN BENNETT - Staff Writer

Some background on habeas corpus

In common law, habeas corpus (Latin: [We command that] you have the body) is the name of a legal action or writ by means of which a person can seek relief from unlawful detention of himself or another person. The writ of habeas corpus has historically been an important instrument for the safeguarding of individual freedom against arbitrary state action.

Also known as "The Great Writ," a writ of habeas corpus ad subjiciendum is a court order addressed to a prison official (or other custodian) ordering that a prisoner be brought before the court so that the court can determine whether that person is serving a lawful sentence or should be released from custody. The prisoner, or some other person on his behalf (for example, where the prisoner is being held incommunicado), may petition the court or an individual judge for a writ of habeas corpus.

The right of habeas corpus—or rather, the right to petition for the writ—has long been celebrated as the most efficient safeguard of the liberty of the subject. Albert Venn Dicey wrote that the Habeas Corpus Acts "declare no principle and define no rights, but they are for practical purposes worth a hundred constitutional articles guaranteeing individual liberty." In most countries, however, the procedure of habeas corpus can be suspended in time of national emergency. In most civil law jurisdictions, comparable provisions exist, but they may not be called "habeas corpus."[1]

Bush asserts that wartime and "inherent powers" give him all the legal authority he needs to conduct widespread domestic surveillance of US citizens at home or abroad. I maintain that a bona fide 'state of war' cannot be simply 'declared' by the executive. The Constitution has reserved that power to Congress and only Congress. Moreover, the so-called 'war on terror' of which Iraq is supposed to have been a part is a criminal fraud based upon a pack of malicious lies. No decree issuing upon a fraud is lawful. At last, even if the 'war on terror' had been legitimate or even declared by Congress, Bush's adventure against Iraq is not. Bush's position was best summed up recently and fallaciously by Newt Gingrich who stated that Bush found it necessary to rescind our 'rights' in order to defend them --a phony baloney inherent contradiction on its face!

GO BACK TO SCHOOL, NEWT!!!! YOU FLUNKED ELEMENTARY LOGIC!!!!

Put another way --what if in the act of defending against 'terrorism', we become terrorists? Yet again --what difference does it make to me if my rights are abrogated by terrorists or by Bush? And, precisely, what IS the difference between Bush, who has claimed millions of victims in the Middle East, and the gang of alleged terrorists, whose body count is somewhere between three and four thousand? Why is Bush, who flouts the rule of law, not considered to be the world's number one terrorist? A final note on this topic: the deaths of US soldiers in Iraq are not due to 'terrorism' or 'terrorists'. We invaded them!

In the meantime, the Congress saw fit to renew the Patriot Act which now includes a little known provision that creates a US "Gestapo" —a new federal police force that will enforce Bush's blatant violations of the Constitution, specifically the Fourth Amendment. Sec. 605 reads:

'There is hereby created and established a permanent police force to be known as the "United States Secret Service Uniformed Division."'

—US Patriot Act, Sec. 605, Powers, authorities, and duties of United States Secret Service Uniformed Division

An excerpt:

...officers of the Secret Service Uniform Division will "carry firearms" (sec. 3056A (b)(1)(A)) and be authorized to make arrests without warrant for any offense against the United States committed in their presence, or for any felony cognizable under the laws of the United States if they have reasonable grounds to believe that the person to be arrested has committed or is committing such felony" (sec. 3056A (b)(1)(B))

Please note: the statute establishes "reasonable grounds"! That, in itself, violates the Constitution which establishes as the standard "...probable cause", not "reasonableness". Read the Constitution.

As Bush "bunkers down" over Nixon's old assertion of "executive privilege", Congress shops around for a special prosecutor to go after Alberto Gonzales who most certainly lied to Congress.
(Shermer news conference Press Conference on Gonzales Special Counsel Investigation]

Lying to Congress is something Bushies will have trouble covering or defending with assertions of "executive privilege". Gonzales is to Bush as Heydrich was to Hitler --an enabler tasked with trying to make crimes legal after they've already been committed. Sen. Leahy stated "We have now reached a point where the accumulated evidence shows that political considerations factored into the unprecedented firing of at least nine United States Attorneys last year." Indeed! Bush was firing every attorney whose opinions were based on law rather than the caprice of a would-be dictator.

"It has long been understood that, in circumstances like these, the constitutional prerogatives of the president would make it a futile and purely political act for Congress to refer contempt citations to US attorneys."--Washington Post

The "rule of law" is to have an enforcement mechanism. If 'a' rogue 'President', like Bush, refuses to prosecute, the Congress must impeach. If Congress asserts something must be done, but is not willing to back that claim with impeachment, then Congress makes itself irrelevant, a mere rubber stamp. What if I were to tell you that Congress has already gone home? Did anyone notice?

When Bush sought 'powers' beyond those delegated in the Constitution, 911 had not yet occurred. When Bush sought to exempt US soldiers from war crimes prosecution, 911 was months away. Had Bush foreseen the events of 911 psychically or had he, in fact, planned them with Dick Cheney? What 'forbidden knowledge' or, more realistically, what 'secret plots' had he already hatched to foment a dictatorship that would exploit 'terrorism' in order to assume the powers of a dictatorship, abrogate habeas corpus, and roll back the Bill of Rights? Certainly, no one but Bush --or those who had planned to help him perpetrate them --would have or could have foreseen that US atrocities at Abu Ghraib, GITMO and a gulag archipelago of US torture centers throughout eastern Europe would have necessitated measures in advance to get them off the hook, measures that would put Bush, US brass and members of his criminal junta above the law! This measure amounts to a criminal administration positioning itself --in advance --to exploit the crime of 911. It is more evidence that 911 was anticipated. It is evidence that 911 was an inside job.

Additional resources

• ‘History will not judge this kindly’
• How a Federal Grand Jury Could Indict Bush/Cheney (hint, hint)
• Jean-Paul Sartre, Americans and Their Myths
• Modest Improvements Cannot Save an Inherently Flawed Process at Guantánamo
• Today's Must Read
• What are the "Inherent" Powers of the President? How the Bush Administration Has Mistaken Default Rules for Exclusive Rights
• DoJ Makes It Official: Contempt Stops in Congress
BREAKING: Senate Committee Issues Subpoenas to Rove and Deputy
• Broader Privilege Claimed In Firings
• A Republic, If We Can Keep It.
• "We Need An Attorney General Who Can Tell the Truth"

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