Police-State Powers Are Our Biggest Threat

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http://www.commondreams.org/views05/1228-34.htm

 

 

Published on Wednesday, December 28, 2005 by the New York Observer

 

 

Police-State Powers Are Our Biggest Threat

by Martin Garbus

 

 

What has happened in this country?

 

The Pentagon has a secret court created by the Foreign Intelligence

Services Act (FISA). The courtroom is in a windowless room on the top

floor of the Department of Justice. There are seven rotating judges.

The court meets in secret, with no published opinions or public

records. No one, except the FISA judge involved and the Department of

Justice, knows what is done. No one, except the government and the

FISA judge, knows at whom the warrants are aimed. There is no review

by anyone. Over 12,000 search warrants permitting eavesdropping,

surveillance and break-ins have been sought by the government. Only

once has the FISA court denied a warrant.

 

The FISA court has issued more warrants than the more than 1,000

district judges in the federal system.

 

The Pentagon has already expanded its domestic-surveillance activity

beyond any previous time in history. It breaks into homes, wiretaps

and eavesdrops at will, and builds secret dossiers on citizens while

arguing that there can be no judicial review of its activities.

President George W. Bush argues that there can be no judicial review

of any decision he makes when he decides whether an alien or an

American citizen is or is not an enemy combatant. Congress supports

this; so does the judiciary.

 

The expansion of Presidential powers and the expansion of police

powers is the single most important issue facing this country. It is

safe to say the new Supreme Court and a majority of Congress (both

Democrats and Republicans) are prepared to give Mr. Bush a blank

check. On Nov. 15, Carl Levin, the liberal Democratic Senator from

Michigan and an outspoken opponent of the war in Iraq, joined his

Republican counterpart from South Carolina, Lindsey Graham, in

supporting legislation validating the President's Alice-in-Wonderland

legal system and the expansion of his police powers. The Senate vote

was 79 to 16 in favor.

 

What's more, the Patriot Act had been extended. For the last three

years, the President has justified torture, and Congress will soon

give him legal permission to use it.

 

If or when there's another terrorist attack, the government will seek

more powers, claiming that it shows current laws are inadequate. We

will certainly see, as we recently saw in Britain, the head of

government ask for 90-day detentions of terror suspects without access

to court. The attempt to end habeas corpus started at Guantánamo; it

is now spreading to the rest of America.

 

Five years after we opened the Guantánamo prison, not one person in

that prison has been found guilty of anything.

 

The legal system to treat the new prisoners of the war on terror,

created out of thin air, disgraces us. No one ever before suggested

such a legal system—not during the Civil War, not during World War I

or World War II, and not during the Cold War.

 

We are better than military commissions, Abu Ghraib, Guantánamo, the

Patriot Act and " rendition " —the sending of prisoners overseas to be

tortured at C.I.A.-controlled prisons.

 

This country is approaching a dangerous turning point. There has long

been a desire and a political movement in America for restrictions on

democratic rights, for an authoritarian government propelled by a

combination of religious and nationalistic fervor. The helplessness

caused by the events of Sept. 11 and the domestic and international

war against Muslim " terrorists " deepened this desire. Never before was

there such a possibility of such long-term constitutional violations,

because there has never before been such an open-ended war.

 

In Weimar Germany, a feeling of helplessness led to Hitler's rise and

the creation of the ultimate police state. There are similarities—and,

of course, very significant differences—between America in the 21st

century and Germany in the 1920's.

 

Mr. Bush has suggested that he was chosen by God to lead the United

States in the aftermath of the 9/11 attacks. The Nazi government,

against religion, saw the salvation of the German people in messianic

terms.

 

Many liberals and conservatives are concerned where all of this might

lead. Professor Fritz Stern, a professor of German studies at Columbia

University, pointed out that Hitler saw himself as " the instrument of

providence " who fused his " racial dogma with Germanic Christianity. "

Paul Craig Roberts, a senior fellow at the Hoover Institution and a

former Wall Street Journal editor, writes of the " brownshirting " of

American conservatism—he says the hype about terrorism serves little

or " no purpose other than to build a police state that is far more

dangerous to Americans than terrorists. "

 

The pressure for fascism comes not just from the top. Without the

people's support, the Weimar government would not have been overthrown.

 

The change here is incremental and harder to see.

 

How we conduct the " war on terror " tells the American people who we

are and what this country stands for. America has the oldest and most

dynamic democracy in the world. It can right itself if the people

want it bad enough to fight harder.

 

Martin Garbus is a partner in the law firm of Davis & Gilbert LLP and

one of the country's leading trial lawyers. Mr. Garbus aggressively

represents his clients in the courts and in the media. He has appeared

before the United States Supreme Court as well as the highest state

and federal courts in the nation. His devotion to ethics, justice and

the law has earned him respect among the legal community and beyond as

well as prominent awards. Time Magazine has named him " legendary . . .

one of the best trial lawyers in the country, " while Newsweek , the

National Law Journal and other media agree that Mr. Garbus is

America's " most prominent First Amendment lawyer, " with an

" extraordinarily diverse practice. " The National Law Journal named him

one of the country's top ten litigators.

 

© Copyright 2005 THE NEW YORK OBSERVER