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CounterPunch
October
11, 2002
Bush's Banana
Republic
by FRANCIS BOYLE
George W. Bush was never elected President by
the People of the United States of America. Instead, he was
anointed for that Office by five Justices of the United States
Supreme Court who themselves had been appointed by Republican
Presidents. Bush Jr.'s installation was an act of judicial
usurpation of the American Constitution that was unprecedented
in the history of the American Republic. Had it occurred in
a developing country, such a subversion of democratic process
would have been greeted with knowing derision throughout the
West. What happened in America could only be likened to a judicial
coup d'etat inflicted upon the American People, Constitution,
and Republic. There should now be no doubt that the United States
Supreme Court is governed by raw, naked, brutal, power politics.
Justice has nothing at all to do with it. This Supreme Court's
constitutional sophistry proved a harbinger of the new administration's
disrespect for the Rule of Law, whether domestic or international.
BUSH JR.'S
CONSTITUTIONAL COUP D'ETAT
From the Supreme Court's installation
of Bush Jr. as President to the Ashcroft/Federalist Society
post-September 11 regime of police state "laws," the
politico-legal functioning of America is increasingly resembling
that of a Banana Republic. Since September 11th, we have seen
one blow against the U.S. Constitution after another. For example,
 Attorney General John Ashcroft unilaterally
instituted the monitoring of attorney-client communications
despite the Fourth Amendment ban on unreasonable searches and
seizures and the Sixth Amendment right to representation by
Counsel in criminal cases. He just went ahead and did it, without
even bothering to inform anyone.
Over 1100 aliens have been picked up
and "disappeared" by Ashcroft and his Department of
Injustice. The American People have no idea where most of these
people are. They are being held on the basis of immigration
law, not criminal law, for a period of detention which has not
been defined.
Ashcroft proclaimed another ukaze that
these immigration proceedings must be held in secret. The phenomenon
of "enforced disappearances" is considered to be a
crime against humanity by Article 7(I)(i) of the Rome Statute
for the International Criminal Court.
It appears that many of these aliens
have been deprived of their basic human rights to consular notification
and access as set forth in the 1963 Vienna Convention on Consular
Relations, to which the United States is a contracting party
and which even the U.S. State Department concedes constitutes
binding customary international law. Apparently Bush Jr.'s left
hand does not care about what his right hand does. Yet another
international convention set at naught.
The one characteristic these detained
foreigners have in common is that they are mostly Muslims, Arabs,
and Asians. Everyone needs a scapegoat for the 11 September
tragedy, and it looks like we have one, both at home and abroad.
Thousands more such aliens are being moved into the pipeline
for the Ashcroft gulag by the FBI.
Ashcroft is now planning to reinstate
the infamous COINTELPRO Program, whose atrocities against the
civil rights and civil liberties of the American People have
been amply documented elsewhere.
It is just a matter of time before the
Bush Jr. Leaguers unleash the newly-augmented powers of the
FBI, CIA and NSA directly against the American People. And we
already have 2 million Americans rotting away in prison -- the
highest rate of incarceration in the world, a disproportionate
majority of whom are Americans of Color, victims of the Nixon/Ford,
Reagan/Bush, and Clinton administrations' racist "war on
drugs," which is really a war against People of Color.
The American Police State has already arrived for People of
Color!
ASHCROFT'S
POLICE STATE
This brings the analysis to the Ashcroft
Police State Act. There are no other words to describe it. While
Bush failed to get a formal declaration of war that would have
rendered him a constitutional dictator, clearly Attorney General
John Ashcroft and his right-wing Federalist Society lawyers
took every piece of regressive legislation off the shelf, tied
it all into what they called an anti-terrorism bill, and then
rammed it through Congress, giving it the appropriately Orwellian
name of the <U.S.A>. Patriot Act.
According to one report, Ashcroft's first
draft would have had Congress suspend the ancient Writ of Habeas
Corpus - the necessary prerequisite for imposing a police state
in the United States of America.
Many Members of Congress publicly admitted
that they did not even bother to read the Ashcroft Police State
Act. Another Congressman said basically:
"Right, but there's nothing new
about that." Interestingly enough the so-called liberal
Democrats in the House and the Senate were willing to give Bush
Jr. and Ashcroft more police state powers than the conservative
Republicans in the House. But there are no real differences
that matter between Republicans and Democrats when it comes
to promoting America's self-proclaimed "Manifest Destiny"
to control the World and now Outer Space too.
BUSH'S KANGAROO
COURTS
It would take an entire law review article
for me to analyze all the legal and human rights problems with
the Bush Jr.'s proposed military commissions. Here a cabal of
Federalist Society Lawyers in the White House got President
Bush to sign an Executive Order on 13 November 2001 which, when
implemented, will be widely recognized to constitute a grave
breach of the Geneva Conventions and establish a prima facie
case of criminal accountability against the President himself.
It is emblematic of this particular war
that right towards its very outset President George W. Bush
personally incriminated himself under both international criminal
law and United States domestic criminal law.
The Bush Jr. administration has severely
undermined the integrity of the Four Geneva Conventions of 1949.
By doing this, the Bush Jr. administration has opened up U.S.
Armed Forces and civilians around the world to similar reprisals,
which has already happened.
As a licensed attorney for 25 years,
a law professor for 23 years and someone who has done a good
deal of criminal defense work in U.S. Federal Courts, I am appalled
by the insinuation of these Federalist Society Lawyers that
America's Federal Courts established by Article III of the
U.S. Constitution cannot hold accountable those responsible
for the crimes of 11 September 2001. This is an insult to all
Federal Judges, Federal Prosecutors, Federal Public Defenders
and all the Lawyers who are Officers of these Courts.
In one fell stroke these Federalist Society
lawyers have besmirched and undermined the integrity of two
Branches of the United States Federal Government established
by the Constitution - the Presidency and the Judiciary. So far
the U.S. Congress has supinely gone along with the Bush Jr.
police state agenda. If and when these Bush/Ashcroft police
state practices make their way to the U.S. Supreme Court, many
of them will probably be upheld. After all, a 5 to 4 majority
of the Supreme Court already gave the Presidency to Bush Jr.
We need to seriously consider whether they would strike down
laws and practices that would give Bush Jr. a Police State as
well.
Philosophers have taught that a People
get the type of government they deserve. If the American People
permit the Bush Jr. Leaguers to impose a Police State at home
in the name of furthering Pax Americana abroad, we will have
deserved it by abnegating our responsibilities as Citizens
living in what is supposed to be a constitutional Republic with
a commitment to the Rule of Law. The same thing happened to
the Romans and to the Athenians. The United States of America
is not immune to the laws of history.
Sic transit gloria mundi!
Francis A. Boyle,
Professor of Law, University of Illinois, is author of Foundations
of World Order, Duke University Press, and The
Criminality of Nuclear Deterrence, Clarity Press. He
can be reached at: FBOYLE@LAW.UIUC.EDU
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