Every sphere of life within the US is being transformed by the post-911 momentum toward tyranny. One outrageous violation after another assaults our liberties and places ever-more unrestrained power in the hands of the government. Associated Press telephone conversations are illegally seized by the government; whistle blowers like Julian Assange or Barry Manning are considered enemies of the state; New York City police systematically stop and search citizens at random; nonviolent Occupy protestors are brutalized by police in nearly every city; the systematic violation of our right to privacy continues nationwide; and the entire city of Boston is locked down.
The program of military special-forces and drone assassinations anytime and anywhere in the world was the first fatal step in the destruction of liberty within the US. It elevated powers that were traditionally reserved for wartime (in declared wars against a specific nation-state enemy) to absolute, continuous powers held by the US Executive and its CIA and military arms. We were told that these assassinations could apply to US citizens and that people within US territory were not exempt. In war, habeas corpus and due process of law simply do not apply.
These extraordinary powers were projected directly into the US in the post-911 "homeland security" regime that militarized the domestic police forces of our country, turning them from protectors and enforcers of domestic due process rights for citizens to clandestine watchers of all citizen activities with the readiness to strike (outside domestic law regulations and customs) any time the government deemed it necessary. Thus, the entire city of Boston was recently locked down by militarized police forces, forcibly searching citizens' private homes without a warrant and violating the civil liberties of some six million people, all in the hunt for two pitiful homemade bomber suspects. Any criminal act such as that bombing would, under the pre-911 rule of domestic law, require police to apprehend the suspects without violating the civil liberties of the innocent population, but today this need not be the case when the government arbitrarily designates the suspects as "terrorists."
War powers held by the government traditionally meant that in times of declared war (such as World War II), the "life of the nation" was at risk and the government was thought justified in restricting civil liberties, controlling the press and converting all the resources of the nation to the war effort. What the architects of post-911 America have done is appropriate these war powers as the continuous, justified powers of the Executive branch of government, applying them worldwide, including throughout the United States. Domestic law and civil liberties are trumped by secret and arbitrary government designation of some (or any) persons as "terrorists."
A key to the government strategy in its momentum toward tyranny, therefore, has been creation of this ersatz legal category called "terrorism." For democracies to function as well as they did before 911, a strict separation had to be maintained between times of peace (in which the rule of law governed both the interactions of citizens and the domestic operations of government) and war times (in which government assumed absolute powers to defend the nation and defeat the enemy). Hence, any action causing death and destruction by citizens (or even by government officials) was considered a criminal act that could be effectively handled by civilian police and courts. Setting off a bomb in a public place was a criminal act, like arson or murder (even mass-murder by a gunman), requiring legally governed police procedures to be set in motion that enforced the law and apprehended the suspects, while protecting both their rights and those of the population.
The post-911 Bush Administration understood that the categories of "terrorism" and "terrorist" could be used to eliminate the distinction between periods of civilian law and war-time. They understood they now had a key for enhancing the authoritarian power of government to unlimited proportions. The Bush lawyers went to great (and absurd) legal lengths to create a category of persons exempted from the rule of law altogether: persons who would have no rights to a trial, to habeas corpus, to security from torture, or to life. This ersatz legal category was named "terrorist" or "enemy combatant."
The state was entirely free to assassinate, torture, or "disappear" this category of persons, without regard to any democratic rights or laws within the US or any other country, or to international law. And they were entirely free, using secret criteria, to designate anyone anywhere for inclusion in this category, thereby stripping them of their human rights and turning them into non-persons with no human rights. In war, the US has always recognized that there are no restraints on what government can do to officially designated "enemies" (in spite of what the Geneva Conventions might say). For example, in Vietnam mass murder through saturation bombings was routine, as well as torture, rape, and on-the- ground mass executions of non-combatants (see Nick Turse, Kill Anything That Moves: The Real American War in Vietnam ).
The absolute freedom of naked power to do whatever it wills free from all restraints and all law. This is the siren-song hypnotically drawing the US government toward absolute tyranny. Why should it be sitting on top of the greatest concentration in human history of armed forces empowered to kill and destroy arbitrarily, and not assign to itself the absolute right to use those forces as it sees fit? A charming President like Obama is the perfect figurehead for seducing people into forgetting about the ongoing clandestine designs of the government by which it can achieve absolute tyranny: the right to do anything it wants to anyone, anytime, anywhere, simply by justifying its actions through the false legal category of "terrorism."
Exempting Any Persons from Their Rights Under the Law Strikes at the Heart of Human Civilization.
The entire historical trajectory of the meaning of "law," from worldwide constitutional law to the development of international law, has been to bring persons (all persons) under the regime of common rules and common due processes protecting those rules. The very meaning of law, as it has developed throughout civilization, has required the inclusion of all persons. This meaning of the rule of law as applying to all persons was placed into (unenforceable) International Law through the Nuremberg Accords. Neither the victims nor the executioners are exempt from the rule of law, to use Albert Camus's famous phrase. And, as Camus argued, we need a third option, beyond the war-paradigm that limits our choices to being either victims or executioners.
The US creation of a category that exempts persons from their rights under any and all law strikes at the very heart of human civilization. (See my recent book Triumph of Civilization: Democracy, Nonviolence, and the Piloting of Spaceship Earth.) What is called terrorism is simply a terrible criminal act. If we are going to live under the civilized rule of law, then all terrible criminal acts must be handled through the due process of law. Anything outside that disintegrates the entire meaning of the rule of law.
The Solution to the Problem Is To Eliminate the "War-System" Altogether.
The conceptual framework for the government's strategy to implement tyranny requires the nation-state war-system for its success. It requires that war be considered legitimate when all legal restraints are removed from the use of naked power. The government's argument is that terrorism places the world in a condition of global war outside the rule of law. Without the category of "war," the government would have no such argument. The problem is not preventing tyranny within the US, for as long as the international war-system exists, "national security" will continue to subvert democracy and the rule of law everywhere. The problem is framing a new paradigm for human liberation that eliminates the war-system altogether.
War is not an inevitable feature of human nature, nor can it be an honorable system for defending the rule of domestic law from foreign aggressors. In fact, the rule of law cannot be defended from foreign aggressors, because war itself is the denial of the rule of law. For this reason, military officials must obviously be only pretending consternation at the repeated sex abuse scandals within the US military, since military training itself is directed toward blindly obeying orders to kill, maim, violate, and destroy other human beings outside the rule of law. You cannot expect people trained to be what Dr. Kathleen Barry calls "remorseless killers" outside the rule of law to somehow, at the same time, respect the dignity and rights of women or the laws protecting women from violation and rape.
Philosophers since the 17 th century have recognized that the system of so-called "sovereign nation-states" is inherently a war system. Dutch thinker Baruch Spinoza pointed out that the rule of law did not apply beyond the borders of sovereign nations and hence relations between nations could only be settled by war and power relationships. British thinker Thomas Hobbes said that outside national boundaries nations confront one another "as gladiators." Outside of nations, he said, humans remained in a "state of nature" or a "war of all against all." In the 18 th century, Immanuel Kant stated that the essential relation of sovereign nations (whether fighting or not) was one of "war," which he called "savage and barbaric" precisely because it repudiated the rule of law. In the 19 th century German thinker G.W.F. Hegel declared that "if no agreement can be reached between particular wills, conflict between states can only be settled by war."
It is this war-system itself that destroys the rule of law and democracy within all nations worldwide. It is impossible to have an external (foreign) policy predicated on "power politics" and the repudiation of law, and simultaneously maintain respect for law internally within nations. "National security" trumps the rule of law internally every time, militarizing governments and closing them off as bastions of secrecy from their own populations. Not just states, but all persons everywhere, become potential "enemies" to be dealt with outside the rule of law.
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