Police State Is Closer Than You Think
October 10, 2005
by Paul Craig Roberts
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 him
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 reign 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
breached. 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 combatants."
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
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 opposed it. 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 act still bristles
with unconstitutional violations of the rights of citizens, and the newly
created powers of government to spy on citizens has 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
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 Guant�namo Bay, 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 breached, 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 the
Benthamite US Department of Justice (sic) desires and helping to convict
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 trials.
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 of liberty. Read about Christian schools at:
Story of Moses