DAILY JOURNAL NEWSWIRE ARTICLE
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March 16, 2004
BUSH USES LAW TO UNDERCUT BILL OF RIGHTS
Forum Column
By Jennifer Van Bergen
What is today's news? Haiti? Guantánamo? Iraq? Bin Laden? The primaries? Martha Stewart? All of these items are newsworthy; some, however, are pieces of an unseen larger puzzle that I call "the Bush Plan."
The Bush Plan involves the use of laws, courts, prosecutorial tools, the military (including secret "black op" forces) and the media, to increase the power of the executive branch while undermining the powers of the judiciary, the legislature ... and the people. The most important components are those in the legal realm. As never before, the government is using the color of law to undermine the Bill of Rights.
The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act gives the executive branch a tremendous amount of unchecked power to invade the private lives of individuals. It limits judicial oversight and sets dangerous precedents in several areas of law.
For example, the "sneak and peek" provision allows law enforcement to enter your home or tap your phone and not notify you until later, and under some circumstances, not ever. While the FBI is still required to obtain a regular search warrant under this section, the provision sidesteps the Fourth Amendment notice requirement. The third-party business records section of the act allows the FBI to obtain your financial, educational, library usage, store purchase, and medical records without a warrant.
All that is needed is a connection to an ongoing foreign intelligence investigation. Such investigations can be launched without probable cause. The act authorizes the indefinite detention of aliens for nothing more than a visa violation. Most people think this affects only aliens. Technically, this is true. But we already have seen this dangerous precedent followed in the "unlawful enemy combatant" cases that are now before the Supreme Court. In these cases, two American citizens have been held for more than two years without due process.
However, the USA Patriot Act is not the only bogeyman. Last fall, the Department of Justice indicted Greenpeace under an obscure law against "sailor-mongering." This prosecution is worse in some ways than the habeas corpus restrictions of the USA Patriot Act or the unlawful enemy designations because it silently creates a parallel legal track to the act that could be cited as support of its anti-democratic principles. The Justice Department is not only, for the first time, going after an entire activist organization rather than individual activists who might have committed a misdemeanor crime (in this case, the alleged misdemeanor was unlawfully boarding a boat), but is demanding its financial and other internal records. This action utilizes methods similar to RICO, money laundering and conspiracy prosecutions, as well as the USA Patriot Act. The concern is that these laws are now being used, sometimes separately, sometimes in conjunction, to go after peaceful activists.
The purpose of such a prosecution becomes clearer when one notes that the Justice Department is not making any effort to stop the illegal mahogany importations about which Greenpeace was attempting to raise awareness when it boarded the boat in question. Furthermore, the Justice Department took out of its superseding indictment all references to the black market mahogany trade, clearly so that Greenpeace would find it more difficult to raise it as a defense.
The intention to target peaceful activists - and, therefore, First Amendment speech, association and expression - is confirmed by the increasing use of prosecutorial tools, such as grand jury subpoenas, to elicit information, name names, identify participants, and often to trick activists into committing perjury so they can then be slapped with a felony indictment themselves, even if they never did anything more than try to protect their colleagues from the octopus tentacles of the Justice Department.
Examples are the recent subpoenas of National Lawyers Guild and Drake University records relating to peaceful protest activity, and other similar actions against animal rights activists across the country.
Finally, it is clear that this administration considers courtrooms as opportunities to establish anti-democratic precedents, not as places to uphold the precepts of our Constitution. Time and again, the Justice Department has argued that national security trumps judicial scrutiny, that executive privilege knows no bounds and that the veil of secrecy may be pierced by no man, not even a judge.
The details of legal action, when seen in the light of other components of the Bush plan - the withdrawal from the International Criminal Court; the detention of enemy combatants at Guantánamo without status determinations before competent tribunals as required by the Geneva Conventions; the invasion of Iraq in violation of international law; military-style police action against peaceful protest activities; the continued erection of trade agreements that undermine worker protections; the 2000 electoral Supreme Court coup; and the evisceration of environmental protections, among others - reveal a disturbing picture that should concern everyone.
Bush claims to be a uniter. Indeed, Americans across the board should unite against these undemocratic actions and demand close adherence to the principles of our Founding Fathers that are embodied in our Constitution. If we don't, we may find ourselves following the words of the ancient Roman chronicler, Marcus Lucanus, voicing the words of Caesar's followers:
"Here I abandon peace and sacred law; fortune, it is you I follow. Farewell to treaties from now on; now war must be our judge. Hail Caesar! We who are about to die salute you."
