Kiss Your Rights Goodbye
A Parliament that undertakes to legalize a coup d'État is merely signing its own death warrant. Curzio Malaparte, Coup d'État: The Technique of Revolution
And in the end the age was handed/The sort of shit that it demanded. Ernest Hemingway, "The Age Demanded"
It will never be said of George W. Bush that he left office with any less intelligence, grace, and dignity than he came in with. Intimidation of black voters in Florida has already begun, with surprise visits to the newly registered by Jeb Bush's state police, "investigating voter fraud"an ingeniously ironic whopper, of the stripe that's endeared the Bush family to generations of Saudi princes, defense contractors, and homicidal dictators.
Iraq is a catastrophe, bloodier by the hour. Our Afghan proxy controls a full 10 yards of sovereign territory around his office in Kabul. The only successful war Bush has waged from the comfort of his ranch thus far has been an unremitting attack on the U.S. Constitution. The First, Fourth, Sixth, and Eighth Amendments in the Bill of Rights have already sustained serious injury.
The usual method of redressing constitutional grievances is through the court system. But well in advance of the fait accompli, Bush's fans in Congress derailed most of President Clinton's judicial nominations, a practice the media overlooked in its frenzy to document a cum stain artfully preserved by Monica Lewinsky and Linda Tripp. No member of the Senate was more fanatical in excluding qualified people from the federal bench than our current attorney general, John Ashcroft. The vacancies imposed by Ashcroft and other Senate evangelicals have now been filled by right-wing ideologues, who dominate seven of 13 federal appellate districts.
It's a small, telling measure of G.W. Bush's contempt for the electorate that after Missouri voters chose to elect a deceased candidate rather than give Ashcroft another term, Bush promptly installed him as the country's chief law enforcement officer. When sworn in, Ashcroft was, appropriately, anointed with oil by Justice Clarence Thomas.
Ashcroft is, not to mince words, a lunatic. This would have been universally recognized at almost any other moment in American history. In the looking-glass world of "the war on terror," however, Ashcroft's religious manias haven't excited even mild censure from anyone in government. By all reports, Ashcroft runs the Department of Justice like a Pentecostal revival meeting, enjoining his staff to raise their voices in righteous hymns of his own composition.
After 9-11 and the anthrax scare, Ashcroft's Patriot Act, and the subsequent Homeland Security Act sailed through a terrified Congress like shit through a canebrake. Although Ashcroft has disavowed a leaked draft of the Domestic Security Enhancement Act, which bears a twinship to the Nazi Party's 1933 platform, Patriot Act II, as it's affectionately known, is definitely on the menu for a second Bush administration, should Diebold Corporation and Brother Jeb come through for our current appointee.
A curious feature of the Patriot Act is that it authorizes virtually nothing that would effectively prevent terrorists from hitting American targets. Like other "emergency" measures since 9-11, it attacks Americans. Racial profiling, arbitrary searches and seizures, roving wiretaps and judge-less warrants, harassment of nonviolent activists, indefinite detention without probable or even improbable cause, and guilt by association are only a few of the "appropriate tools required to intercept and obstruct terrorism." Not all of them are stipulated in the Patriot Act, but such has been its use-value.
Naturally, putting these and similar "tools" in the hands of intelligence agencies and police officers guarantees their rampant misuse, just as deregulating industry has freed corporations to break every labor and environmental law they haven't managed to rescind.
Unfortunately, a large terrorist event in New York City is just as likely to happen with or without the Patriot Act and the Department of Homeland Security, no matter how many random Muslims and political dissidents the FBI harasses or locks up.
Inflating ordinary misdemeanor crimes into "terrorist acts" does nothing to enhance security; it's a standard practice of police states, and will only benefit the corporatized prison racket. Since operations like 9-11 and the earlier embassy bombings in Africa took at least five years to plan, the fact that nothing's happened here since 9-11 has nothing to do with Ashcroft's theatrics or Bush's "toughness."
When it comes to cases, every legal tool law enforcement needed to hunt terrorists was already on the books before the Patriot Act. If "the war on terror" were serious and not a bait-and-switch operation to squash dissent and push an agenda long preceding 9-11, legions of "intelligence" personnel and presidential advisers would have been out of work on 9-12.
Nobody in this administration has lost a job for failing to uphold the Constitution, ignoring the public interest, or exhibiting limitless incompetence. No honor among thieves, as the saying goes. Even the pornographic horror of Abu Ghraib wasn't enough to make Donald Rumsfeld resign. As Dick Cheney asserted in a different context, everyone in the Bush administration has "other priorities," all of them antithetical to the public interest. What is the public, compared to Jesus Christ and Halliburton?
I mention Jesus Christ only because John Ashcroft frequently likens himself to the simple carpenter from Nazareth who died for our sins. In his autobiography, Ashcroft reveals a messianic complex seldom found outside a locked ward, characterizing each of his career disappointments as "crucifixions." On rare occasions when things go well, his father, an Assembly of God cultist, or someone equally demented is always on hand to smear a little Crisco on his forehead, as was done for the prophets in biblical times.
Ashcroft inhabits the same mental universe as Osama bin Laden, which isn't as useful to a "war on terror" as it sounds. Like bin Laden, Ashcroft considers his job to be smiting the infidel, prosecuting Muslims and Arabs on an ethnic-religious basis. Many Homelanders conflate Muslims with terrorists, so Ashcroft has been able to do the same, forearmed by Jesus for the clash of civilizations. Alas, unlike bin Laden, Ashcroft really doesn't know much about our civilization, much less anyone else's.
The Justice Department would have it that numerous "sleeper cells" have been ambushed since 9-11. Fat chance. Plea bargaining, a judicial travesty designed to relieve our court system of its onerous duty to give defendants jury trials, and mandatory sentencing, which voids the discretion of judges to tailor sentences appropriate for individual defendants, have placed the fate of anyone charged with a crime in the total control of prosecutors.
In the terrorism cases to date, people from targeted ethnic groups have been fingered, for whatever reasons, by informants; locked up without benefit of counsel; and threatened with life imprisonment or execution (typical mandatory sentences for "terror" crimes). Predictably, these casualties of the Patriot Act tend to confess to lesser crimes the prosecutor offers from a standard menu of transgressions. The so-called Lackawanna Six, U.S. citizens of Yemeni origin, pleaded out on "providing material support to terrorists" when menaced with capital charges.
Eleven alleged terrorists in Alexandria, Virginia, charged with what amounts to "association" with Al Qaeda, pleaded out on violations of the Neutrality Act.
Seven members of a "terrorist cell" in Portland, Oregon, likewise charged with multiple crimes, pleaded out on lesser, tossed-in charges of gun possession.
A hearing on probable cause in most of the above cases might have concluded that the defendants' rights had been violated. It's more likely that these people are innocent than guilty, considering how many episodes of mass hysteria have translated into show trialsor, in these cases, no trialsthroughout American history.
In every case "linked" to 9-11, Muslims, mostly American citizens, have been confronted with the same dilemma anyone "overcharged" with felony counts faces: Take your chances with an overworked, underpaid public defender or plead out for lesser jail time, even if you're innocent. In the rare cases in which a defendant's lawyer has managed to compel production of the state's "secret evidence," it proved so flimsy that charges were drastically lowered by the courts or simply thrown out.
The Moussaoui case illustrates how the terror war has played out in the U.S. Initially indicted on six conspiracy counts, any one of which could lead to life imprisonment or execution, Moussaoui insisted on questioning three "enemy combatants" in detention who he said would testify to his non-involvement in 9-11.
The judge ordered Moussaoui's access to the detainees; rather than produce them, the Justice Department claimed that they could reveal "classified information." The prosecutors moved for a dismissal, in hopes that an appellate court would void the judge's order and call for a new trial.
Under the weird procedures Ashcroft has devised from a breathtakingly cynical reading of international law and U.S. statutes, the government can switch Moussaoui's status to that of "enemy alien" and try him before a military tribunal. This isn't just overcharging, it's railroading.
Only 3 percent of felony defendants in the U.S. ever receive a jury trial. For "terror" suspects, just being called a terrorist by the Justice Department is enough to get you shipped to a dog pound on Diego Garcia without being charged. This is likely to entail being sleep-deprived, tortured, and raped by some smirking hillbilly like Lynndie England, courtesy of Donald Rumsfeld.
Three years after the fact, there has been no satisfactory explanation for what happened on 9-11, although it's clear from many credible accounts that the House of Saud was paying protection money to bin Laden, and several Sauds who died under fishy circumstances afterward knew in advance that an American target was going to be hit. The Bush family's complex business dealings with the Saudis, including some of bin Laden's siblings, have clouded every inquiry into the 9-11 plot.
What should have been a disaster for G.W. Bush's presidency, then, has instead served as a pretext for conducting it like a dictatorship, with John Ashcroft's Justice Department as its secret police. Strange to say, the branch of the government that got the country into this mess is the only one that can get us out. The Supreme Court's rulings in Hamdi v. Rumsfeld, Rasul v. Bush, and Rumsfeld v. Padilla, affirming habeas corpus rights for detainees as well as criminal defendants, while not unequivocal triumphs for Hamdi, Rasul, or Padilla per se, at least indicate a dawning recognition within the Supreme Court that its own prerogatives are liable to be usurped by an executive branch that defines "war" against a phantom enemy as an eternal state of emergency. If we can't rely on the court for fairness, the republic may yet be rescued by its resentment.
Get the This Week's Top Stories Newsletter
Every week we collect the latest news, music and arts stories — along with film and food reviews and the best things to do this week — so that you’ll never miss Village Voice's biggest stories.
- The Man Behind 'Modern Seinfeld,' Focuses on His Own Neuroses in New Book
- NYU Student Employees Say the University Hasn't Paid Them in Months
- Here Are the Early Frontrunners for Worst Halloween Costumes for Sale in New York