The US has been in a long slide towards empire for some time. As Stirling observed last week the torture bill, which essentially invalidates the parts of the bill of rights dealing with the rights of those accused of crimes, is part of that slide.
The trend line, and this has been going on for some time, and is not an artifact just of the last five years, nor just of the Republican party (though they have more proponents of it within their ranks) has been going on for at least thirty years and parts of it can be seen in the late sixties.
Its features are the imperial executive, the end of individual rights, the castration of Congress and the reduction of the power of the Courts.
The End of Individual Rights Under the new bill passed last week the President, largely at his discretion, can take any non citizen (including legal residents) and lock them up indefinitely without recourse to civilian courts by declaring them an enemy combatant. He can lock up citizens and the only recourse they have is to determine their combatant status, however you can become a combatant by an act as minor as having written a check. Once determined that a citizen is a combatant they lose the right to any further use of habeas corpus, the right to see the evidence against them, the right not to self incriminate, the right to a speedy trial, the right to safety against cruel and unusual punishment, the right to not be punished till guilt is determined in court, the right to counsel of their choice, the presumption of innocence and the right to a trial by a jury of their peers.
This is radical, but it is simply the capstone of a long decline in the right of most accuseds to any of these rights. You can be punished by the loss of your possessions without trial, without ever being determined guilty and this has been the case for a couple decades now. Under the various laws that allow seizure of goods and money no trial is necessary for seizure.
Most people accused in the US in the 90’s did not get a trial ”“ they were pled out of the system. They could not afford competent counsel, so incompetent counsel was appointed for them. It is simply impossible for the system to give everyone a trial, let alone jury trial ”“ there are not enough judges, prosecutors and judicial staff to actually try as many cases as the number of people tried. The people who plead effectively have no choice in the matter, if they fight the vast majority will lose, not just because most are guilty (guilt is irrelevant, the majority of innocent ones will lose too) but because they don’t have good counsel or the means to procure it and in most cases they can’t get a jury trial but must have a trial before a judge whose primary institutional motive is to get the accused out of the court as fast as possible.
As an individual you no longer have the right to expect freedom from arbitrary search and seizure. Again, a series of court decisions and laws reduced this right even before the Bush administration ”“ for example, you have no real expectation that anything in your car can’t be searched for, largely on a policeman’s whim. Within Bush’s mandate it has reached the point where you have no reasonable expectation that any of your records cannot be read or your calls listened in on ”“ not even the minor protection of secret courts such as the FISA court remains. Even behind the curtain, even within the confines of power, there is no one left who speaks for the individual.
You have no right of association. RICO laws in the eighties made it dead simple to criminalize membership in, or association with any organization. The new terrorism laws make it even simpler. You have no right to gather in large numbers in most of the country, since a ”œfree speech zone” will be found for you or permits for political demonstrations will be refused even when identical permits for non political purposes are approved.
It’s important to recognize that this cram down on individual rights primarily benefits not the courts or the legislative bodies, but the executive. Prosecutors are members of the executive apparatus, not the legislative. Judges, who are members of the judicial, have had their rights and powers reduced, not extended, during this period. Many judges hate plea bargaining, but it’s over before it even gets to them, and there’s nothing they can do about it.
The Reduction of Congress Congress has steadily lost power to the executive over the last few decades. In some respects the first and most important power to be lost was the right to declare war. While in theory Congress still has this authority, in practice, once the President has attacked another country for the two months of freedom he’s allowed, it’s all over ”“ you’re at war, whether you like it or not. While President’s often go to Congress for authorization, they do not need to. Any president, Republican or Democratic, can plunge the US into a war on his sole authority and there is nothing anyone can do about it short of the military mutinying.
The use of signing statements started in the Reagan administration and was not discontinued during the Clintonian terms. However the Bush administration has used them to essentially exempt the executive from following any law it disagrees with. Congress can make all the laws it pleases, but if a law requires the executive’s cooperation in any way (and most do) it’s a dead letter if the President disagrees with it. Even if the Executive chooses to enforce a law, how they enforce it is also totally at the President’s discretion.
The Executive has also asserted its right to spy on members of Congress in the Jefferson case, where Jefferson’s records were seized without any members of the House, or their staff, their to supervise and remove records not pertinent to the graft case. This is the first time the Executive has violated a congressman’s quarters in the history of the United States and, in effect, the Executive now has every Democratic strategy memo. Jefferson was almost certainly guilty and so most people were not outraged, but this is how rights are removed ”“ first you remove them from scum (for example RICO laws were aimed at the Mafia) then you remove them step by step from larger and larger groups of people until either no one has them, or only those who can’t afford hundreds of thousands of dollars of lawyers fees can assert rights that still exist only for the few.
And the fact that in a section on Congressional power we devolved into a discussion of the courts and individual rights is typical of the whole mess. There is no clear dividing line between the three. As the Courts and Congress lose power to the executive (or the Courts to Congress) the end effect is always felt by individuals ”“ no matter how remote the battles seem from real life, in the end what is taken from the Courts or Congress is taken out of the life, liberty and happiness of individuals.
Congress has three powers left ”“ theoretical control of the purse, theoretical ability to impeach and the power to subpoena or appoint special prosecutors. In theory, any two of the three are sufficient to reign in the Executive until such a time as there is a Reactionary lock on the Supreme Court.
They will likely not be used in sufficient concert to make a difference. Too many people are complicit ”“ using the powers would rip Washington apart. The level of incestuousness in Washington isn’t clear to most people, for all their disgust at the City in the Swamp. There is no clear line between Republicans and Democrats ”“ they are intermarried, they work on the same firms, they bribe each other. I don’t use incestuous primarily as a metaphor ”“ they are screwing each other, across the aisles, regularly, both physically and metaphorically. Mary Matalin and James Carville are just more out in the open than many others, but what they represent ”“ the marriage of parties, is very real.
The balance of power resides in the third leg of government ”“ the court system in general, and the Supreme Court in particular. Any two of the three legs can crush the third, given time.
The Courts It’s hard to say which of the three branches of government has been more reduced in power over the last thirty years. Certainly Congress, in its naked abnegation of its responsibilities so as to escape, well… responsibility, is in the running. But the courts have lost great power as well.
As discussed above, most cases don’t even come before the court ”“ they get pled out. Amongst those that do, the rise of mandatory sentencing has removed much of a judge’s traditional discretion and power. This is a direct result of the drug war, which has been used to justify shredding traditional common law procedures and judicial authority.
At one point in the late nineties, there were about 20 judges in the entire country who would simply refuse to try any cases with mandatory sentencing. One friend observed that in his opinion those were the only 20 judges in the system with integrity.
But the real assault on the court is just beginning. It is the attempt by Congress to strip civilian courts of jurisdiction of whole swaths of cases. Without jurisdiction the courts will not be able to rule either on the legality or the constitutionality of bills with strip large numbers of people of the protections of the bill of rights. While there is wording in the Constitution which allows this, in practice the Supreme court has been unwilling to deny itself jurisdiction over constitutional issues.
However the Supreme Court currently rides on a razor thin 5/4, 4/5 margin. One more death, one more appointment and the new interpretation of the Constitution (in effect, the new Constitution, for the interpretation is always more important than the text) will be enshrined. Even if Congress were to repeal the torture act, for example, it would be at Congress’s whim and could be reinstated at any time. Even, of course, assuming that the President would acknowledge the repeal in any substantive manner.
All Republics fall. The US’s Founders gave the US 150 years. Two hundred was a good run. A country where individuals do not have the right to a trial by their peers, to hear the charges before them, to confront their accusers, to not self incriminate, to have counsel; a country where the President can lock anyone up and throw away the keys, is not a Republic as the Founders would have understood it.
A country where one of the three branches of government, the Executive, is much more powerful than the other two, is not a country your Founders would recognize as a Republic, especially as they had envisioned the Presidency as the weakest of the three branches.
When Congress does not declare wars, when the President can veto any law simply by writing an interpretation of it that guts it, when the Courts can be denied jurisdiction over almost anything ”“ you have an empire.
When every State in the Union has been given the absolute right to assign its electoral votes as it chooses then the United States has put into place the necessary laws to end Democracy whenever necessary.
A country with a large, standing mercenary army which girds the globe and invades other countries, is on the road to Empire.
A country where the crimes of el Presidente and his minions are made retroactively legal, is not a nation of laws, it is a nation of people.
Now the tools to regain the Republic exist. Impeach the President. Either expand the Supreme Court or impeach the justices who are most clearly reactionaries who hate the Constitution. Restore jurisdiction to the courts. Reject laws that make actions retroactively legal. Then try those who have committed crimes and lock them up for the mandated times.
But the odds of the above happening are minimal. As after Nixon, and as after Iran Contra, those gaining power will decide that letting all this slide is easier than tackling it. The precedents will remain on the books, the new customary practice of letting the President do as he chooses will remain. What has been accepted as legal, and not deserving of punishment becomes the new legal norm. Without a vicious and violent repudiation not just of Bush, but of Bushism and the entire slide towards authoritarian government, that slide, even if it takes two steps backwards, will remain the new norm.
And this is the easier path by far. What President would not like to have Bush’s powers? What Congress would actually like to have some responsibility again? Who wants to put their friends, wives, children, parents in jail for violating the Constitution? Isn’t it easier to just let it all slide and just not use these new powers too much? Don’t you believe that you can be trusted with such powers, even if Republicans couldn’t?
One appointment to the Supreme court is all that remains. Just one. One appointment and the torture bill becomes the defacto new law of the land ”“ the bill of rights is largely repealed, the executive has its star chamber courts and there become two court systems ”“ the old one, for non political crimes ”“ and the new one, under the jurisdiction of the President.
One appointment and signing statements are here for good ”“ Congress becomes an advisory body, capable of passing laws, but with every single one subject to Presidential veto.
One appointment and the Republic formally ends.
You’ll excuse me, I’m sure, if I don’t wish the new American empire a long life.