Police State : closer than you think


Richard Moore


The Police State Is Closer Than You Think

By Paul Craig Roberts

10/08/05 "ICH" -- Police states are easier to acquire than Americans

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 indefinitely.

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 rein 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
breeched. Whether courts can fully restore habeas corpus or
whether it continues in weakened form or passes by the wayside
remains to be determined.

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 category. 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 privacy.

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 breeched 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 Guantanamo, 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 breeched 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 breeched, 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 their client.

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

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

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.

Dr. Roberts <•••@••.•••> is John M. Olin
Fellow at the Institute for Political Economy and Research
Fellow at the Independent Institute. He is a former associate
editor of the Wall Street Journal, former contributing editor
for National Review, and a former assistant secretary of the
U.S. Treasury. He is the co-author of The Tyranny of Good

Copyright © 2005 Creators Syndicate


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