Deciphering the Democratic Code

excerpted from the book

The Twilight of Democracy

The Bush Plan for America

by Jennifer Van Bergen

Common Courage Press, 2005, paper

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Change comes from a degree of discomfort that allows for and spurs thought and action.

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Charles A, Kupchan, The End of the American Era

America under George W. Bush appears to be the new Rome.

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Caesar's troops about to cross the Rubicon River, from Marcus Lucanus, Pharsalia

Here I abandon peace and sacred law; fortune, it is you I follow. Farewell to treaties from now on; now war must be our judge. Hail Caesar! We who are about to die salute you.

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Bush has declared war-not on terrorism, for that was never his intention until he was forced to do it -but on the Republic of the United States. Since his election, viewed by many in the first instance as illegitimate, he has curtailed civil liberties, invaded privacies, and, indifferent to due process, detained people indefinitely. He has disregarded treaties, human rights, and constitutional law. He has violated international law and custom and has alienated many of our oldest and staunchest allies. Even moderate conservative analysts like Charles A. Kupchan realize that "American unilateralism has been tearing away at the fabric of the international community."'

Is history repeating itself? In 49 B.C., the Senate of the Republic o Rome, threatened y the increasing popularity an power of General Julius Caesar, ordered him to disband the armies he had commanded as governor in Gaul. At the time, Caesar was staying in the northern Italian city of Ravenna. Ancient Roman law forbade any general from crossing the Rubicon River (which was the frontier of his province), and entering Italy proper with a standing army. To do so was treason. This tiny stream would reveal Caesar's intentions and mark the point of no return. After purportedly having a vision which prompted him forward, Caesar cried out, 'Let us go where the omens of the Gods and the crimes of our enemies summon us! The die is now cast!

By crossing the Rubicon, Caesar in effect declared civil war on the Roman Republic. He marched on Rome while the consul and most of the Senate fled to Greece. Caesar then assumed the office of emperor for life. This was the end of the Roman Republic and the beginning of the Roman Empire. Although the Roman Empire lasted hundreds of years, civil rule did not return. Caesar's opinion of the Roman Republic is captured in his words: "The Republic is merely a name, without form or substance."

The actions of George W. Bush, Jr. echo Caesar's words. Bush has treated the principles of our American Republic as words without form or substance.

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... if America has crossed the Rubicon, there may be no going back, Ed Djerejian former U.S. Ambassador to Syria and Israel, says: "The bottom has fallen out of support for the United States around the world." Margaret Tutwiler, former Ambassador to Morocco and presently under-secretary of State for public diplomacy, echoed that view when she emphasized while testifying before Congress that "it will take us many years of hard, focused work" to restore America's standing abroad. Kupchan concludes:

America under George W. Bush appears to be the new Rome. There is, however, an alternative view of the long-term consequences of the U.S. war against Iraq, one that puts the future of American primacy in a different light. Far from opening a new American century, Washington has embarked on a course that is precipitating the end of the American era.

***

Down the Road to Fascism

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Bill Schultz, Exec. Dir., Amnesty International Amnesty NOW, Summer 2003

This year we are witnessing not just a series of brutal but fundamentally independent human rights violations committed by disparate governments around the globe this year we are witnessing the orchestrated destruction by the United States of the fragile scaffolding on which international human rights have been built, painstakingly, bit by bit by bit, since World War II.

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Americans may not realize it yet, but the United States is already more than three-quarters of the way down the road to fascism.

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Fascism & Empire

... fascism [is] a system of government marked by centralization of authority under a dictator, stringent socioeconomic controls, suppression of the opposition through terror and censorship, and typically a policy of belligerent nationalism and racism." Stan Goff, a retired military. officer' who has spoken out eloquently against the invasion of Iraq, says:

I think we already have a fascist executive branch, but that does not translate into systemic fascism yet. Fascism is a middle class phenomenon, which means it is something that happens in countries that have achieved a level of development. Right now we are seeing a preparatory phase by the fascist executive branch, putting in place the legal infrastructure to impose a distinctly American fascism if the opportunity arrives. Guantanamo, PATRIOT Act, the FTAA demonstrations, all of it."

Laurence W. Britt writing in Free Inquiry Magazine, delineated fourteen "common threads" of fascism:

1. Powerful and continuing expressions of nationalism.
2. Disdain for the importance of human rights.
3. Identification of enemies/scapegoats as a unifying cause.
4. The supremacy of the military/avid militarism.
5. Rampant sexism.
6. A controlled mass media.
7. Obsession with national security.
8. Religion and ruling elite tied together.
9. Power of corporations protected.
10. Power of labor suppressed or eliminated.
11. Disdain and suppression of intellectuals and the arts.
12. Obsession with crime and punishment.
13. Rampant cronyism and corruption.
14. Fraudulent elections.

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The National Security State, the PATRIOT Act, & Parallel Legal Systems

America is not yet fully fascist. It can, however, be characterized as something just short of fascist: a "national security state."' National security is certainly one of Bush's main themes, his mantra, Increasingly, the Executive has justified itself by declaring it acts in the interests of national security.

Under the PATRIOT Act, the term "national security" is synonymous with "foreign intelligence." The reason for this is that foreign intelligence is used to protect national security. Thus, what used to be called "foreign intelligence investigations" are now somewhat misleadingly called "national security investigations" by the Department of Justice. They are also sometimes called "terrorist investigations," for the obvious reason that such investigations are meant to protect against terrorist attacks.

However, the mixing of the terms national security, terrorist, and foreign intelligence has unfortunate ramifications for people both inside and outside the U.S. Calling an investigation a national security investigation masks the fact that such investigations increasingly result in criminal prosecutions. What's wrong with that? Well, a warrant to do a search or surveillance for foreign intelligence purposes does not require probable cause of criminal activity. When material from a foreign intelligence investigation is gathered without probable cause and used in a criminal trial, what happens to Fourth Amendment protections? Suddenly you have nothing preventing the government from tapping the phones of innocent people and using a "mosaic" of pieces based on speculative and third-hand testimony to convict them of crimes that are increasingly vague and broad.

The USA PATRIOT Act is the primary mechanism that our government is using to create this dilution of constitutional standards. It amends and combines three areas of law: (1) criminal laws and procedures, (2) foreign intelligence law, and (3) immigration law. Each of these types of law have valid separate uses and purposes. In fact, immigration law and foreign intelligence law each make up separate, parallel legal systems. They even use different courts. But, the PATRIOT Act merges and exploits these systems.

Immigration law involves primarily the laws that apply to the admission and removal of aliens into the United States. These cases are heard in Immigration Courts, which are part of the executive branch, not the judicial branch. Courts have determined that admission and removal of aliens do not require the same constitutional protections as suspects in a criminal prosecution, despite the fact that aliens may be deprived of liberty (and, under the PATRIOT Act, deprived of liberty indefinitely). The PATRIOT Act exploits these constitutional dilutions by applying immigration laws and definitions in criminal prosecutions. 1'

Foreign intelligence law (which falls under the Foreign Intelligence Surveillance Act of 1978, or FISA) involves the investigation of foreign powers and their agents. No cases are actually brought under foreign intelligence law directly. Only requests for foreign intelligence warrants are brought and these are brought before a special secret federal court (the FISA court). The purpose of such warrants is, of course, to obtain foreign intelligence." However, the PATRIOT Act amends foreign intelligence laws to allow them to be applied to ordinary law-abiding persons without the constitutional privacy protections of the Fourth Amendment. Information under foreign intelligence law may also now be more easily used in criminal prosecutions, even when that information was obtained without probable cause of criminal activity.

Criminal law, of course, involves investigation and prosecution of criminal suspects. These cases are prosecuted in regular courts in the judicial branch, with full constitutional protections. Criminal law is where you find the Fourth, Fifth, Sixth and Eighth Amendment protections. It's also where you'll find substantial Supreme Court case law about First Amendment and Fourteenth Amendment protections.

The PATRIOT Act allows surveillance and searches to be conducted without probable cause, by resorting to foreign intelligence law. The Act circumvents First Amendment protections by permitting convictions on the basis of mere association or financial support, without any requirement of knowledge or participation in crime.

The dilution of constitutional protections ties back into the notion of the rise of an American national security state, where security, not individual rights, is what we fight for and protect. We have forgotten, then, what America is about and what our ancestors fought and died for. Patrick Henry said "Give me liberty, or give me death!" Fortunately, we do not need to make the choice between liberty and death. As the ACLU declares, we can be both safe and free.

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Justice Ahron Barak, the president of the Israeli Supreme Court, wrote in 2002:

Terrorism does not justify the neglect of accepted legal norms. This is how we distinguish ourselves from the terrorists themselves. They act against the law, by violating and trampling it, while in its war against terrorism, a democratic state acts within the framework of the law and according to the law...

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... the religious right is not unlike fundamentalist Islam. Both believe that their faith must control the way the world works. As Bernard Lewis puts it, both Christians and Muslims "shared the conviction that there was only one true faith, theirs, which it was their duty to bring to all humankind."" Lewis says: "Today we in the West are engaged in what we see as a war against terrorism, and what the terrorists present as a war against unbelief "

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Zechariah Chafee, Jr., The Blessings of Liberty (1956)

We must choose between freedom and fear-we cannot have both. If the citizens of the United States persist in being afraid, the real rulers of this country will be the fanatics fired with a zeal to save grown men from objectionable ideas by putting them under the care of official nursemaids.

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Statutes are laws that are enacted by Congress. Regulations are laws that are promulgated by administrative agencies. Statutes override regulations, although in the absence of a statute, regulations are the law (as long as they are not unconstitutional).

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Treaties and Customary International Law

Many people, including judges, do not know that treaties and "the law of nations" (also known as customary international law) are the "supreme law of the land" of the United States. In other words, treaties and customary international law are THE LAW, as much as constitutional, statutory, or regularly laws are. This means that if we violate a treaty or customary international law, we are breaking the law of our own country.

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There are basically two types of international law that] apply domestically in the United States: (1) treaties, and (2) customary international law. Treaties are in force only once the President signs them and the Senate ratifies them. Customary international law, on the other hand, is operable by dint of customary international recognition. For example, prior to the promulgation of the international Convention Against Torture, torture was nonetheless universally abhorred and prohibited by customary international law.

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... there is no universal enforcement mechanism for international law violations, The United Nations has no enforcement power without moment-to-moment agreement by the parties involved in a conflict. There are a variety of permanent and ad hoc international courts where complaints can be brought, but, again, their jurisdiction only applies where the parties agree. The International Criminal Court (ICC), which came into existence only recently, is the first permanent international tribunal for war crimes, crimes against humanity, and so on. Shortly after bush came into office, he pulled the United States out of the enabling treaty, the Rome Statute.

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The portions [of the first amendment] that are most threatened by the Bush administration are the freedoms of speech and press, and the right to assemble. Case law has arisen abundantly over the years in relation to every clause of the First Amendment. Additionally, the Supreme Court has construed a "right of association" in the First Amendment, which has come to be viewed as an essential right and is also now under attack.

The Court has found in the First Amendment an associational right to engage in disfavored activities, such as membership in disfavored organizations, absent a showing of criminal activity. For example, in the Communist Party cases of the 1950's, the Court held unconstitutional laws that prohibited mere membership in a political organization that advocated violence or lawlessness. In other words, although the Court took many years to arrive fully at this approach, mere membership cannot be a crime, since it is protected by the First Amendment, even if that membership is in an organization that advocates the overthrow of the U.S. government. Any law that prohibits mere membership, therefore, is unconstitutional. Yet, the material support and designation provisions of the PATRIOT Act do just this."

"Subversive advocacy" is another area the First Amendment protects. Justice Oliver Wendell Holmes wrote: "If there is any principle of the Constitution that more imperatively calls for attachment [e.g., favor] than any other it is the principle of free thought-not free thought for those who agree with us but freedom for the thought that we hate."" The Court has held that a state may not forbid "advocacy of the use of force or of law violation [sic] except where such advocacy is directed to inciting or producing imminent lawless action and is likely to produce such action." This is a later development of the "clear and present danger test" ...

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The phrase "clear and present danger" was originally articulated in a 1919 case by justice Oliver Wendell Holmes, who said that the defendant, who had distributed a leaflet against the draft, might have been within his constitutional rights to say what he did when the country was not at war, but not in wartime, when the words helped further a conspiracy to interfere with the war effort. Holmes wrote for a unanimous Court that "[the] question in every case is whether the words are used in such circumstances and are of such a nature as to create a clear and present danger that they would bring about the substantive evils that Congress had a right to prevent."

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Advocacy is a form of speech. Membership is a form of expression, parallel to speech. Publication in the pres is also a form of speech, but it is broader than individual speech. It is sometimes referred to as "the right of the public to know," which moves into the area of the right of the press to have access to Association is a form of expression. "Guilt by association" is prohibited.

The right to peaceably assemble is "one of the core political rights or Americans.'" Chief Justice Hughes wrote in a 1937 landmark freedom of assembly case:

[P]eaceable assembly for lawful discussion cannot be made a crime. The holding of meetings for peaceable political action cannot be proscribed. Those who assist in the conduct of such meetings cannot be branded as criminals on that score.

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... under both the pre-2001 anti-terrorism law, AEDPA, as well as under the PATRIOT Act (which removed some exclusions), in a especially odious mixing of immigration law and criminal law, a person can be sent to jail for the rest of his life for providing material support to a designated foreign terrorist organization (FTO), without the government having to prove that the person either knew the FTO was engaged in unlawful activities or ever participated in those unlawful activities. The material support provision is in the criminal code. The FTO provision is in the immigration statute. The Secretary of State is authorized to designate the FTO and no defendant charged under the provision may challenge the designation. Thus, the combination of these two statutes forms a "strict liability" crime. Neither knowledge of nor intent to participate in a crime matter. A person may be given a life sentence if he gave baby food for humanitarian purposes to a designated FTO.

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