In a series of recent posts (most recently The Loyal Citizen’s Contract with the American Government, I have been sounding the alarm about the dangerous encroachment on civil liberties and traditional concepts of the rule of law by the current administration. Many people do not seem to be alarmed so why am I? Once again, we have to look at history and learn from it to see where this road might lead.

In a recent article, Paul Craig Roberts, Assistant Secretary of the Treasury in the Reagan administration, shows how far the current administration has gone in emulating the kinds of regimes that were once routinely condemned for their human rights violations. He bases his article on three books: Our Endangered Values (Simon & Schuster, 2005) by former President Jimmy Carter; Nikolaus Wachsmann’s Hitler’s Prisons (Yale University Press 2004); and Robert Higgs in Resurgence of the Warfare State (Independent Institute 2005).

Roberts says:

Carter reports that the deception, naked aggression, and torture that define the Bush administration have caused a tremendous setback for human rights throughout the world. At an international human rights conference in June 2005, “Participants explained that oppressive leaders had been emboldened to persecute and silence outspoken citizens under the guise of fighting terrorism…The consequence is that many lawyers, professors, doctors, and journalists had been labeled terrorists, often for merely criticizing a particular policy or for carrying out their daily work. We heard about many cases involving human rights attorneys being charged with abetting terrorists simply for defending accused persons.” Carter is especially disturbed that the Bush administration is encouraging these abusive policies in the name of “fighting terrorism.”

Who among us ever expected to hear an American president, vice president, and attorney general justify torture as essential to the protection of the American way of life? Carter quotes attorney general Alberto Gonzales, who sounds more like a third world tyrant than an American when he dismisses the Geneva Convention’s provisions as “quaint.” Bush threatened to veto any congressional limitation on his right to torture, and Donald Rumsfeld’s Pentagon declared that “the president, despite domestic and international laws constraining the use of torture, has the authority as Commander in Chief to approve almost any physical or psychological actions during interrogation, up to and including torture.

Dr. Burton J. Lee III, President George H.W. Bush’s White House physician is also quoted as follows:

Reports of torture by US forces have been accompanied by evidence that military medical personnel have played a role in this abuse and by new military ethical guidelines that in effect authorize complicity by health professionals in ill-treatment of detainees…Systematic torture, sanctioned by the government and aided and abetted by our own profession, is not acceptable…America cannot continue down this road. Torture demonstrates weakness, not strength…It is not leadership. It is a reaction of government officials overwhelmed by fear who succumb to conduct unworthy of them and of the citizens of the United States.

Roberts finds disturbing parallels to darker times in Wachsmann’s book:

Wachsmann’s book is a detailed history of the conflict and cooperation between the traditional legal/judicial/prison system on the one hand and the police/SS/concentration camp system on the other. He does not mention George Bush or Bush’s “war on terror.” However, the similarities leap off the pages.

Just as 9/11 was a crystallizing event for Bush’s seizure of executive power to suspend civil liberties, detain people indefinitely without evidence, and spy on American citizens without warrants, the Reichstag fire of 27 February 1933 was followed the next morning by Hitler’s Decree for the Protection of People and State. This decree became the constitutional charter of the Third Reich. It “suspended guarantees of personal liberty and served as the basis for the police arrest and incarceration of political opponents without trial.”

In a frightening parallel to our own situation, Wachsmann writes: “Various police activities during the ‘seizure of power’ clearly damaged legal authority. Indefinite detention without due judicial process was incompatible with the rule of law. But, on the whole, there were no loud complaints or protests from legal officials.” I read this passage the same day I heard on National Public Radio University of Chicago law professor Eric Posner defend President Bush’s use of extra-legal, extra-Constitutional authority to protect the people and state from terrorists.

The precedent for Alberto Gonzales’ declaration that Bush is the law was Reich Minister of Justice Franz Gurtner, who agreed in a cabinet meeting on 3 July 1934 that “Hitler was the law.” Bush’s claim that extraordinary powers are necessary for him to be able to defend our country under extraordinary circumstances is identical to Hitler’s claim that he was entitled to ignore the rule of law because he was “responsible for the fate of the German nation and thereby the supreme judge of the German people.” What is the difference between Hitler’s claim and the US Department of Defense’s claim that President Bush has the right to violate domestic and international laws?

Wachsmann’s book shows that it is extremely easy for extraordinary measures in the name of national emergency to become permanent. 
Germans did not understand that the Decree for the Protection of People and State was the beginning of legal terror.

The point that Roberts is making is not that the US now is like Nazi Germany. But what he is saying is that we should all be concerned when the government starts asserting the right to do anything it wishes in the name of “protecting” the people. People should not acquiesce with this simply because they do not see themselves as potential targets of the government. That is a temporary state can change in a second. All someone has to do is whisper to the authorities that you are a threat and your personal safety and security from arbitrary government action are gone.

The issue is never whether we personally feel safe and secure but whether the constitutional principles and the rule of law on which our permanent safety and security depend are jealously safeguarded.

(The great state of Ohio, which sometimes seems to me like it has never seen a bad idea that it could not make even worse, is in the process of passing its own version of the USA PATRIOT act. Commenters Barry and Brian have given useful links here and here on the consequences.)

As I said in response to a comment to the previous posting, there is no real threat to this country, nothing anywhere close to the massive destruction that was possible during the cold war. People instinctively realize this because they go about their lives with no thought of terror attacks. It seems to me that we have a level of threat similar to that of a large criminal conspiracy, like organized crime gangs. I think people have more to fear from crime and auto accidents than from a terror attack, but we handle those using the civil legal system.

I do not feel terrified at the thought of an impending terrorist attack. It may happen somewhere sometime but the probability of any given individual being harmed by it is so small as to not be worth considering. Maybe it is because I lived through the Cold War and through civil wars, where the danger was much more real.

But I have also lived through times in a country where the government declared emergencies and suspended all rights and liberties and judicial oversight and where extrajudicial actions by the security forces were routine. I find that much more scary. When the government and the security forces are against you, and the judicial system has abandoned oversight, then you are really alone and helpless.

This is why I am so concerned about the real civil liberties violations that are currently being institutionalized and becoming permanent. And it is hopeful that the concerns about this are cutting across party lines. Roberts is a Republican as is Bob Barr, former GOP congressman and Republican leader, who also slams the administration in an op-ed piece.

Other Republicans incensed by this encroachment of the constitution can be seen here, which reports:

Bruce Fein, a conservative constitutional scholar and former deputy attorney general in the Reagan Administration, said yesterday that the president is flouting the Constitution and may have committed an impeachable offence. Norm Ornstein, a conservative scholar at the American Enterprise Institute, echoed Fein, saying, “I think if we’re going to be intellectually honest here, this really is the kind of thing that Alexander Hamilton was referring to when impeachment was discussed.”

I am seeing the word impeachment being used more and more frequently as the revelations keep emerging.