The Erosion of Democracy and Freedom in America

by Stephen Lendman

On December 8, 1941, President Franklin Roosevelt
addressed the US Congress the day after the Japanese
attacked Pearl Harbor.  He said that “date….will
live in infamy” because of what the naval and air
forces of the Empire of Japan did.  Two and one-half
months later on February 19, 1942, FDR himself
committed an infamous act signing into law Executive
Order 9066 which authorized the internment of 120,000
Japanese civilians, two-thirds of whom were US
citizens.  These Americans committed no crimes and
were only “guilty” of being of Japanese ancestry and
thus by presidential edict were judged potential
enemies of the state.  Because of FDR’s action, these
otherwise ordinary peace-loving Americans lost all
their sacred constitutional protections including
habeas corpus and their rights of trial by jury and to
own and keep their property.  They also lost all their
other freedoms and were treated like criminals.  They
were sent against their will to concentration camps
where they were interned for the duration of the war
until 1946. 

It should be noted no similar action was taken against
white German Americans.  It seems the Japanese then
were more guilty of their skin color and race than
their country of national origin.  The US Supreme
Court agreed in their 1944 landmark Korematsu v.
United States decision in which a Court majority ruled
military necessity justified their internment.
Justice Frank Murphy and two other Justices disagreed
denouncing the decision.  In Justice Murphy’s dissent,
he said this act amounted to the “legalization of
racism.”  It took until 1988 for the US Congress to
undue this presidential act of infamy and High Court
approval of it.  It then passed Public Law 100-383
apologizing to those internees still living and their
families, provided reparations for them (too late and
far too inadequate), and created a public education
fund to “inform the public about the internment of
such individuals so as to prevent the recurrence of
any similar event (ever again).” 

Dare anyone suggest members of the 109th Congress have
an immediate and urgent need for an industrial
strength dose of its own re-education program.  On two
late September, 2006 days of infamy, the US House and
Senate passed and sent to President Bush for his
certain signature the Military Commissions Act of 2006
appropriately called “the torture authorization bill.”
This clear unconstitutional act gives the
administration extraordinary powers to detain,
interrogate and prosecute alleged terror suspects and
anyone thought to be their supporters.  The law grants
the executive branch (specifically President Bush) the
extraordinary right to label anyone anywhere in the
world an “unlawful enemy combatant” and gives him the
legal right to arrest and incarcerate them
indefinitely in military prisons.  Persons liable will
include anyone who even innocently contributes
financially to a charitable organization thought to be
associated with any nation or group the US believes
supports terrorist or hostile actions against the US.
On September 27 and 28, 2006, freedom and justice
effectively died in the US, and no one will be secure
anywhere in the world as long as this act is the law
of the land.  One day it will be repealed - if the
republic survives long enough to do it which now is
very much in question.

US citizens are not exempted from this law with one
important exception - for now at least.  Because of
the June, 2004 Supreme Court Hamdi v. Rumsfeld
decision, citizens of this country legally still
retain their legal right to file a writ of habeas
corpus if arrested and detained.  This means they must
be charged with a crime, be tried and allowed the
right to appeal any conviction in a US court of law.
But even this remaining right now hangs by a weak
thread as the case of Jose Padilla shows.  He’s a US
citizen who was seized at Chicago’s O’Hare Airport
having no weapons, declared an “enemy combatant” and
held in military confinement with no ability to
challenge his confinement in court.  The Supreme Court
refused to hear his case effectively giving the
president the power to seize other citizens, subject
them to the same abuse with no redress and thereby
neutralize anyone’s habeas rights. 

But it may get even worse than that if, or more likely
when, another major “terrorist” attack occurs on US
soil, which some experts believe is a certainty.
Congress could then suspend habeas rights for everyone
or the president could do it by executive order in the
name of national security.  If it happens, democracy
will likely give way to martial law, the suspension of
the constitution, and echos of Benjamin Franklin’s
words at the close of the Constitutional Convention in
1787 will be heard.  At that time, he reportedly said
in answer to whether the nation now had a republic or
a monarchy: “A republic, if you can keep it.”  We
hardly need wonder what he’d say today.

Provisions in the Military Commissions Act

Some of the key elements of the Military Commissions
Act are as follows:

—It annuls the right of habeas corpus for all non-US
citizens and applies it retroactively to all current
detainees at Guantanamo and elsewhere.  Article 1,
Section 9 of the US Constitution specifically says:
“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.”  This
provision is now constitutionally null and void for
all non-US citizens and nearly so for those of us who
are.

—It empowers the president with authority to decide
what constitutes torture, effectively legalizing this
act of barbarism henceforth against any detainee
anywhere including US citizens.

—It grants US officials, including CIA operatives,
retroactive immunity from prosecution for having
authorized the use of torture or directly committed
acts of it.

—It prohibits detainees from invoking the
protections of the Geneva Conventions or using them in
any US court.  These conventions are binding
international laws and thus the supreme law of the
land.  No longer with the passage of this act.

—It gives the chief executive authority to interpret
and apply the Geneva Conventions according to his sole
judgment.

—It grants the president the right to convene
military commissions to try “unlawful enemy
combatants” and gives the chief executive broad
latitude to decide on his sole authority whomever he
wishes to so-designate and for whatever reason.

—It allows civilians to be tried by military
commissions and not in a civilian court of law and
limits the rights of detainees to be represented by
the counsel of their choice.

—It allows no guarantee trials will be conducted
within a reasonable time.

—In violation of binding international law, it
permits torture-extracted evidence to be used against
the accused in a trial.

—It allows the use of classified evidence to be used
but not to be made available to be challenged by
defendants.

—It permits hearsay evidence and coerced testimony
to be used.

—It allows military commissions to impose death
sentences.

—It allows indefinite and secret detentions.

On September 21, 2001, Amnesty International faxed a
letter to George Bush in the aftermath of the 9/11
attack.  It urged the president to respect human
rights and the rule of law in whatever response was to
be undertaken.  Specifically it said: “In the wake of
a crime of such magnitude, principled leadership
becomes crucial….We urge you to lead your government
to take every necessary human rights precaution in the
pursuit of justice.”  Five years later, Amnesty
concluded “its appeal fell on deaf ears.  The past
five years have seen the USA engage in systematic
violations of international law, with a distressing
impact on thousands of detainees and their families.”
Amnesty cited the following violations:

—secret detentions

—enforced disappearances

—the use of torture and other cruel and degrading
treatment

—outrages of personal dignity including humiliating
treatment

—denial of habeas rights

—indefinite detentions without charges or trials

—prolonged detentions incommunicado

—arbitrary detention

—unfair trial procedures

Amnesty accused the Bush administration of hypocrisy
saying that while claiming the US is a “nation of
laws” adhering to the “rule of law,” it practices the
very policies it condemns.  It said this
administration’s “interpretation of the law has been
driven by its policy choices rather than a credible
postulation of its legal obligations.”  It cynically
interprets US and international law any way it chooses
and as such acts outrageously and in contempt of all
legal standards and norms.  Amnesty also stated that
by having passed the Military Commissions Act, the
Congress has allowed thousands of detainees to remain
in indefinite detention without charge or trial and to
be legally subjected to the worst kinds of abuses.  It
said “Congress has failed these detainees and their
families.  Those defending human rights should be
prepared for a long struggle.”

The Long Struggle to Save the Republic Has Begun

By its legislative action prior to recessing for the
November congressional elections, the 109th Congress
will forever live in infamy.  It shamelessly sunk to
its lowest yet depths in pledging its fealty to a
morally depraved president who believes no one has the
right to challenge his authority, champions the use of
torture, defies constitutional and international laws
and norms, (law or no law) conducts secret
surveillance through warrentless wiretaps or any other
means, and believes dissent is an act of terrorism.
In brazen defiance of over 200 years of governance
under the rule of constitutional law, this Congress
and president have made a mockery of every norm and
standard the Founders stood for and handed down to us
for posterity - if we could keep it. 

By their actions, this body has shaken the very
foundation of the republic.  It gave the president
near-unlimited authority to act as he chooses in the
name of national security as he defines it.  It simply
means the rule of law effectively has been abolished
and ordinary people no longer have constitutionally
protected rights.  For now, US citizens still have the
right of habeas corpus, but it, too, may be taken from
us in the name of national security.  How low we’ve
now sunk in coming so far.

In his 1935 novel, It Can’t Happen Here, Sinclair
Lewis showed it most certainly can happen here.  He
wrote about a charismatic senator who becomes
president, claims to be a reformer and a champion of
the common man. It’s all cover to hide his alliance
with the corporate interests of his day and the
support of religious extremists he appeals to.
Instead of serving the people he denies them their
rights.  He then takes full advantage of the Great
Depression economic crisis to support a strong
military and pass unconstitutional laws during a
national emergency.  He further convenes military
tribunals for civilians and calls dissenters
unpatriotic and even traitors.  Sound familiar? 

Anyone reading this book will be scared wondering if
it really can happen here.  Anyone living in the
surreal age of George Bush and his out-of-control
extremist neocon administration knows it already has,
and we haven’t yet found a way to stop it.  This is no
time for complacency. We’re all now “enemy
combatants.”

Stephen Lendman lives in Chicago and can be reached at
.(JavaScript must be enabled to view this email address)  Also visit his blog
site at sjlendman.blogspot.com