The Police State Is Closer Than You Think
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
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 rein 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 breeched. Whether courts
can fully restore habeas corpus or whether it continues
in weakened form or passes by the wayside remains to be
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
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
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
still bristles with unconstitutional violations of
the rights of citizens, and the newly created powers of
government to spy on citizens have brought an end to
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 prosecutor brings.
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 Guantanamo, 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 breeched,
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
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
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
CREATORS SYNDICATE, INC.
Paul Craig Roberts is the author with Lawrence M.
for Peter Brimelow`s
Forbes Magazine interview with Roberts about the
recent epidemic of prosecutorial misconduct.