From law to lawlessness: using the threat of terrorism as an excuse to eradicate constitutional safeguards, the Bush administration is laying the foundation for tyranny by putting itself above the law. (On the Home Front).

A Man for All Seasons, Robert Bolt's dramatization of the life and martyrdom of St. Thomas More, timelessly illustrates the value of the rule of law. Serving as Lord Chancellor of England, More, a devout Catholic, provoked the wrath of Henry VIII by refusing to endorse the King's claim that his authority transcended that of the Catholic Church. Condemned as a traitor, More was beheaded at the Tower of London on July 6, 1535. In ]3olt's version of the story, More's betrayal occurred at the hands of Richard Rich, a petty, ambitious man who had sought employment from the Lord Chancellor. His request spurned, Rich took revenge by offering perjured testimony against More.

Shortly after Rich's overture was rejected, More's wife, knowing that Rich was a threat to her husband, turns to him and urges: "Arrest him!" "For what?" More inquires. "He's dangerous!" rejoins More's wife. William Roper, More's son-in-law, agrees: "For all we know, that man's a spy!" More's daughter joins the anxious chorus: "Father, that man's bad!

When More points out that it's God's role to punish "bad" men who have not committed crimes, his exasperated wife exclaims, "While you talk, he's gone!" "And go he should, if he were the Devil himself, until he broke the law!" More replies. "So, now you'd give the Devil the benefit of law!" snorts Roper in disgust. "Yes!" admits More. "What would you do? Cut a great road through the law to get after the Devil?" Roper impetuously responds, "Yes, I'd cut down every law in England to do that!"

"Oh? And when the last law was down, and the Devil turned 'round on you, where would you hide ... the laws all being flat?" More asks Roper. "This country is planted thick with laws, from coast to coast, Man's laws, not God's.... And if you cut them down ... do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake."

Giving "the Devil benefit of law" is a principle deeply inscribed in the Anglo-Saxon legal tradition to which Americans are heirs. While it is true that laws exist to punish the guilty, the law's deeper purpose is to restrain the government. Freedom depends on the limitation of government by law. As British philosopher John Locke pointed out in his Second Treatise on Government (1694), slavery consists of being "subject to the incessant, uncertain, arbitrary will of another man," and that "absolute arbitrary power" is the practice of "governing without settled standing laws." Since the chief purpose of law, according to Locke, is to "preserve and enlarge freedom," it must protect the individual against all criminal acts, including those of the government. When an individual's rights are violated, "the injury and the crime is equal, whether committed by the crown or some petty villain." Nor can a majority of the citizenry sanction government to commit criminal, acts, as "nobody can transfer to another more pow er than he has in himself."

From time immemorial, rulers of all varieties, pleading the purity of their own intentions, have insisted that they must be unshackled from the law to protect their subjects from "bad" men, whether foreign enemies or domestic criminals and subversives. But once such rulers succeed in clear-cutting the laws, they create a free-fire zone in which they can make war on their own subjects with impunity. In this way the law becomes perverted. Instead of protecting the rights of the innocent, it becomes a means of protecting the power of the ruling elite.

In England prior to the 17th-century "Glorious Revolution," some English kings claimed the power to declare certain people "outlaws" without trial. But even the most presumptuous European monarch understood that there were limits to his authority. This is not true, however, of modern totalitarian dictators. Soviet dictator Vladimir Lenin, the inventor of the modern totalitarian state, famously declared: "The scientific concept of dictatorship is nothing else but this -- power without limit, resting directly upon force, restrained by no laws, absolutely unrestrained by rules." Where medieval monarchs would occasionally consign scores of individuals to the dungeons as "enemies of the realm," modern totalitarian dictatorships, beginning with Lenin's Soviet Union, have claimed the power to designate entire classes or races "enemies of the state," consigning them to prison camps or marking them for extermination.

Advocates of the total state often invoke the necessity of cutting down laws impeding the state's efforts to pursue its enemies, which are depicted in diabolical terms. But as Robert Bolt's Thomas More reminds us, those who cut down the laws in the name of "justice" are actually doing the devil's work. This is certainly true of the Bush administration's behavior in the "war on terrorism," as it rapidly mows down laws and constitutional protections obstructing the president's power to rule by decree -- but only for the high-minded purpose of "homeland security," of course.

Devil's Due

An echo of Robert Bolt's Thomas More was heard during an August 13th District Court hearing in Virginia. U.S. District Judge Robert G. Doumar demanded that the Bush administration justify its open-ended detention of Yasser Esam Hamdi. Born in Louisiana, the Saudi national was captured in Afghanistan by U.S.-commanded forces, transported to Camp X-Ray in Guantanamo, Cuba, and then designated an "enemy combatant" after it was learned that he had been born in America. The Bush administration insisted that once the president branded Hamdi an "enemy combatant," the administration could keep him imprisoned for as long as it pleases -- without access to an attorney or judicial review of his case.

"The Constitution doesn't apply to Hamdi?" exclaimed Judge Doumar. Counsel for the Justice Department insisted that an unsworn, vaguely worded "declaration" submitted by a minor Pentagon bureaucrat named Michael H. Mobbs offered adequate legal justification for Hamdi's imprisonment without trial. "I do think that due process requires something other than a basic assertion by someone named Mobbs that they have looked at some papers and therefore they have determined he should be held incommunicado," commented Judge Doumar. "Just think of the impact of that. Is this what we're fighting for?" The judge referred to the Bush administration's claim as "the most interesting precedent ... in Anglo-American jurisprudence since the days of the Star Chamber" -- a notorious tribunal operated by British kings to punish their political enemies.

Admittedly, Hamdi seems a very unsavory figure. But the Bush administration has not accused him of helping to plan or carry out the Black Tuesday terrorist attacks. No evidence has been presented that he had prior knowledge of that attack, or that he even expressed support for that atrocity after it was committed. While Hamdi freely offered his services to the admittedly despicable Taliban junta, he posed no known threat to our nation or to any American citizen.

The same is true of Jose Padilla, aka Abdulla Al-Mujahir, suspected of plotting to detonate a radioactive "dirty bomb" here in the United States. Padilla is an ex-con who converted to radical Islam while in prison. Like Hamdi (and John Walker Lindh), Padilla migrated to Afghanistan, where he adhered to the Taliban junta. In early June, federal officials at Chicago's O'Hare Airport arrested Padilla. Commenting on the arrest, Attorney General John Ashcroft called Padilla a "known terrorist." Within hours, President Bush designated Padilla an "enemy combatant," and he was taken into military custody in Virginia.

As Thomas More's daughter might say, Padilla is unmistakably a "bad man." But the Bush administration has failed to produce a molecule of evidence that he was actually plotting a terrorist attack. Under Secretary of Defense Paul Wolfowitz has admitted, "I don't think there was actually a plot beyond some fairly loose talk...." An August 13th Associated Press report observed that Padilla "is probably a 'small fish' with no ties to al-Qaeda cell members in the United States.... The FBI's investigation has produced no evidence that Jose Padilla had begun preparations for an attack and little reason to believe he had any support from al-Qaeda to direct such a plot...." No formal charges have been made against Padilla -- and the Bush administration insists none are necessary, since the presidential designation that Padilla is an "enemy combatant" is sufficient to justify his open-ended detention.

Why should we care? Isn't it enough that Hamdi, Padilla, and Lindh chose to associate with anti-American Islamic radicals? Though difficult to understand, we must give such devilish characters the benefit of law for our own protection. The Bush administration is using the Hamdi and Padilla cases as the foundation for a legal revolution that would dispense entirely with many of our constitutionally guaranteed rights and immunities -- particularly the Habeas Corpus guarantee, the "Great Writ" prohibiting indefinite incarceration without trial.

Commenting on the Hamdi case, a "senior Bush administration official" told the August 8th Wall Street Journal, "There's a different legal regime we're developing" in the so-called war on terrorism. The Journal observes that the new regime contemplated by the administration would blend "the once-separate realms of civilian law and the law of war. Criminal law determines guilt and assigns punishment for past wrongdoing, but the law of war gives governments vast powers to prevent possible harm by imprisoning and interrogating enemy soldiers."

The Bush administration maintains that in dealing with captured enemy combatants, the judicial branch must defer to the military's judgment. But the new "legal regime" being developed is intended to reverse defeats suffered in the courtroom, rather than on the battlefield. Notes the Journal: "stung by the courtroom circus that ... [accused terrorist] Zacarias Moussaoui has created, and the aggressive defense marshaled by John Walker Lindh before he plea-bargained his way out of a possible life sentence, the Bush administration is preparing to expand its policy of indefinitely detaining in U.S. military jails people it designates as 'enemy combatants'...."

Where do the president and his minions get the authority to seize and detain people at whim? Legal arguments made by the administration in the Yasser Hamdi case invoke the September 14, 2001 joint resolution from Congress authorizing the president to "use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks on September 11, 2001." (Emphasis added.) The president has publicly cited that open-ended grant of power as justification for his announced policy of launching "pre-emptive" strikes (that is, offensive wars) against suspected terrorist states, without the constitutionally required declaration of war. But little attention has been paid to the fact that the president considers that resolution a declaration of war on the Bill of Rights as well.

According to the administration, those designated "enemy combatants" -- whether Americans or foreigners captured in the U.S. -- "aren't afforded the same constitutional rights as criminal defendants, or even the limited rights allowed in military tribunals," reported the Wall Street Journal. "The White House is considering creating a high-level committee to decide which prisoners should be denied access to federal courts."

Answering only to the president, that "high-level" committee would be an updated Star Chamber tribunal with the power to imprison at whim any individual -- citizen or noncitizen -- as an "enemy combatant."

"That sort of thing used to happen in the Soviet Union and may still happen today in Iran and Iraq, but it's not the sort of thing that should happen in the United States," observes Stephen Dycus of Vermont Law School. "If the government succeeds in this case, if its arguments are upheld it would mean that anybody, anytime could be labeled an enemy combatant by the attorney general and arrested in the middle of the night and locked away in a military brig."

The power to seize detainees means little unless there are facilities to hold them, and the administration has begun -- quietly but audibly -- to discuss the supposed need for "detention camps." "The camp plan was forged at an optimistic time for Ashcroft's small inner circle, which has been carefully watching two test cases [those of Hamdi and Padilla] ... to see whether their vision could become a reality," points out Professor Jonathan Turley of George Washington University.

"Whereas al-Qaeda is a threat to the lives of our citizens, Ashcroft [and, it must be added, the president who appointed him] has become a clear and present threat to our liberties," continues Turley. "Ashcroft is a catalyst for constitutional devolution, encouraging citizens to accept autocratic rule as their only way of avoiding massive terrorist attacks.... If we cannot join together to fight the abomination of American camps, we have already lost what we are defending."

The State's Eyes and Ears

Subjects of the Soviet Union, National Socialist (Nazi) Germany, and other totalitarian police states were aware that they were under constant surveillance, and that any anti-government utterance could result in the dreaded "midnight knock" by the secret police. Thanks to the artfully misnamed USA PATRIOT Act -- passed over-whelmingly by Congress before much of its text had been written -- Americans confront the specter of omnipresent federal surveillance in the name of fighting terrorism:

* Section 213 of the measure authorizes "black bag jobs" -- covert break-ins -- if they suspect that you are somehow involved in criminal behavior using a personal computer.

* Section 210 authorizes warrantless wiretaps and eavesdropping on phone calls, e-mails, and fax communications, and authorizes the feds to demand detailed personal customer information (including credit card and bank account numbers) from Internet Service Providers and telephone companies.

* One of the most appalling abuses generated by the bogus "war on drugs" is "asset forfeiture," the practice of seizing money and other assets allegedly connected to drug trafficking. It isn't necessary to demonstrate that the property owner was somehow implicated in criminal activity, because the property itself is deemed "guilty" of a crime. Section 302 of the PATRIOT Act permits "forfeiture of any assets in connection with anti-terrorist efforts of the United States." If a citizen donates a single dollar to a group designated a "terrorist" organization, everything he owns can be seized by the feds.

* Sections 358 and 361 radically expand federal intrusion in the financial affairs of citizens. Under section 358, law enforcement and intelligence agencies can compel banks, credit card and finance companies, and other financial agencies to turn over detailed personal information on targeted individuals. Section 361 gives the IRS's FinCEN (Financial Crimes Enforcement Network) expanded power to collect information on "non-bank networks," such as barter systems, check-cashing centers, etc.

* Section 802 offers an ominously elastic definition of "terrorism" including acts "dangerous to human life" or intended "to intimidate or coerce a civilian population [or] to influence the policy of a government by intimidation or coercion." Obviously, violent acts of a political nature would fall under this definition. But what about peaceful protests or activism that leave government officials feeling "intimidated"? They would fall under this definition of "terrorism" as well.

Ambiguous laws are a hallmark of every police state. So are citizen informants. The Bush administration's TIPS (Terrorism Information Protection System) would conscript tens of millions of Americans to act as the eyes and ears of the federal government, using their casual or business associations to spy on friends, neighbors, clients, or other acquaintances. In Communist East Germany, roughly one quarter of the population worked as informants for the Stasi secret police; America in the "war on terrorism" threatens to eclipse that infamous accomplishment (see page 28).

Federal Police Monolith

In addition to cutting down constitutional protections and expanding surveillance of the citizenry, the Bush administration's counter-terrorism campaign is rapidly amalgamating state and local police and emergency agencies into one vast, monolithic "homeland security" apparatus. This is potentially disastrous, for two reasons: First, because a centralized counter-terrorism system gives terrorists the luxury of a single target; secondly, because a centralized police system is a prerequisite for creating a totalitarian state.

Significantly, these two liabilities are mutually reinforcing. On September 11th, brave local police and firefighters were called on to give their lives because the federal government failed to carry out its chief function -- protecting our nation from attack. The fedgov -- steadily expanding its control over local police since 1994 -- reacted to its Black Tuesday failure in classic fashion, demanding expanded power over state and local police and emergency services (also described as "first responders").

The Bush administration's National Strategy for Homeland Security contains this telling statement: "[T]he homeland security community will view the federal, state, and local governments as one entity...." Rather than preserving our federal system, in which the central government has limited, delegated powers, the Bush administration is rushing to create a consolidated, nationalized law enforcement body extending even to passenger and baggage screeners at airports. Somehow, federalizing such employees is supposed to provide better security. Somehow, phasing out the state criminal codes in favor of a national criminal code, and absorbing local police agencies into a growing national police force, is supposed to provide better law enforcement. In reality, the notion that our nation's independent jurisdictions should be absorbed into "one entity" echoes ominously of a previous effort to nationalize law enforcement in the name of national security -- the 1933-1936 drive for Gleichschaltung (coordination) in Nation al Socialist Germany (see page 34).

As the campaign to erect a totalitarian "homeland security" apparatus proceeds, its architects are striving to keep public attention focused on our foreign enemies -- whether it's Osama bin Laden, Saddam Hussein, or another denizen yet to be identified. But nearly all of the proposed "security" measures are directed inward, at the potential victims of terrorism. This fact eloquently testifies that the "war on terrorism" is actually a war on American liberties.