This law protects people from illegal searches and seizures, it's not absolute under the best of conditions, and it's practically null and void today. Later in her book, Van Bergen shows how the Patriot Act allows the government "to mix standards from different, incompatible areas of law" (such as criminal investigations, foreign intelligence and immigration) that amounts to a "witch's brew....of ingredients poisonous to a democratic government or way of life."
The Sixth Amendment Right to Counsel
This law provides that defendants shall "have the assistance of counsel" in all criminal prosecutions during and prior to trial and to free assistance if unable to pay for it. In addition, attorney-client confidentiality and privilege are protected under law. Patriot Act justice threatens these rights for immigrants, so-called "unlawful enemy combatants," cases in which the government feels national security trumps confidentiality, and in situations where lawyers (like Lynne Stewart) are targeted for defending "unpopular" clients.
Van Bergen concludes this section saying 9/11 changed everything, the gloves came off, and constitutionally protected rights no longer apply at the government's discretion. Real democracies don't work that way, America always fell short in the past, but the bar was lowered to bottom-scraping standards post-9/11. Now the unjustifiable is justified in the name of national security because the president says so, law or no law. That, however, openly constitutes "an exact reversal of the principles in our Constitution." That's the condition today and why Van Bergen's book is so important to explain it.
The Constitutional Code
Van Bergen calls the constitutional doctrines of separation of powers, judicial review and probable cause "code words invest(ing) the Constitution with meaning." How they're abused, however, explains a lot about today's frightening situation under a president who thinks and acts (in his words) like the Constitution is "just a goddamned piece of paper."
1. Separation of Powers
The framers crafted a government in three parts so no one of them got too much power although it never worked out that way from the start. Nonetheless, their idea was for the legislative branch to make laws, the executive to execute them, and the judiciary to interpret them. The doctrine is called the "separation of powers" that's the "core protection against tyranny" if enforced and utterly meaningless if not like today under George Bush.
Since 9/11, Democrats and Republicans abdicated their responsibility and have marched ever since in lockstep on virtually everything the administration wants. Rhetoric aside, almost nothing's changed to this day in spite of six and a half years of disastrous and reckless governance outside the law. Van Bergen sums it up saying, in the absence of checks and balances, "government power (has) run amok" under the Bush Plan.
2. Judicial Review
According to law professor Jethro Lieberman, judicial review is "the power of courts to declare laws and acts of government unconstitutional" although nothing in the Constitution allows this practice. Van Bergen adds, without this check on the other two branches, there's "no remedy for bad laws (and in fact) no democracy." It differs from the notion of "judicial supremacy" meaning the High Court is the final arbiter on all constitutional issues.
3. Court Stripping
Examples of this practice are found in extremist laws like the 1996 Anti-Terrorism Law (AEDPA), Patriot Acts I and II and other recent legislation as they restrict the ability of courts to review executive actions, and that's not how democratic states function.
4. Probable Cause
Under the Fourth Amendment, neither arrest or search warrants are allowed without evidence of "probable cause" of criminal activity. The Bush administration, however, views all legal constraints as quaint and fanciful. It simply sweeps them away to do as it pleases to target anyone for any reason, real or concocted, in its sham "war on terrorism." Weak as they always were, post-9/11, constitutional protections are now an illusion. They simply no longer exist despite all the pretense they do.
I am a 72 year old, retired, progressive small businessman concerned about all the major national and world issues, committed to speak out and write about them.
