Showing posts with label habeas-corpus. Show all posts
Showing posts with label habeas-corpus. Show all posts

Saturday, October 22, 2005

Kiss your Democracy Goodbye (But Did You Ever Have One?)

"There are ... potentially desirable limits to the indefinite extension of political democracy ... A government which lacks authority ... will have little ability, short of cataclysmic crisis, to impose on its people the sacrifices which may be necessary" (1975 Trilateral Commission Report on the Governability of Democracies)

Just how pervasive is the myth of our 'inalienable rights' is illustrated by the following quote from an article in the Independent that even as it warns of the "drift...toward a police state" tells us

... the Government is undermining freedoms citizens have taken for granted for centuries and that Britain risks drifting towards a police state. - 'Judges liken terror laws to Nazi Germany' By Marie Woolf, Raymond Whitaker and Severin Carrell, The Independent, 16 October 2005 [my emph. WB]

Contrary to popular myth, the democratic process, the universal franchise, habeas corpus, the 'inalienable rights' and so on and so forth that the pundits spout on about, far from being an 'inalienable right' extending back to the Magna Carta some eight hundred years ago, our extremely limited democracy is barely one hundred years old and is something that is by no means 'taken for granted' as events in Northern Ireland revealed nor the raft of laws such as the infamous 'D' notice which is no more than an 'agreement' between the owners and managers of the media not to print or broadcast stories that might be embarrassing to the state, under the guise of 'state security'.

With literally hundreds of laws that collectively the state paradoxically likes to call our 'unwritten constitution' and without recourse to a clearly defined set of rules that sets limits on what powers the state possesses over its citizens, until the UK - reluctantly and with all kinds of provisos - signed the European Union's Human Rights Act, the state could pretty well do whatever it pleases. And now, under the guise of fighting the 'war on terror', it wants to opt out of key sections of the Act.

In fact, the UK is probably the most regulated, controlled and surveilled of any of the so-called democracies. With an estimated 6 million video cameras installed across the country over which there is no oversight, indeed, no controls whatsoever as to what happens to the footage, who sees it or who ends up possessing it, the state's control over its citizens is almost complete.

And if anyone has any doubts about the perilous state of our 'democracy', the vote on ID cards on 18/10/05 had only 20 Labour MPs voting against it, and most of those on the grounds of cost of the project. Public debate on the issue is virtually non-existent.

The government has consistently misled the public on the real nature of the ID card, hiding entirely the real reason, namely the creation of a national database on its citizens, an allegation it of course, strenuously denies. The vast cost of creating a national database on 60 million people, a database that will contain information of all kinds, not merely the kind that will allegedly stop 'identity theft' or allegedly identify 'terrorists', 'benefit cheats' and those participating in 'organised crime' but to add insult to injury, one that we will be forced to pay for.

So what is going here? Nobody could deny that indeed the state is undertaking fundamental attacks on the limited civil rights we have won over the past century or so of struggle but firstly, why are elements of the legal profession and the media only now waking up to the fact?

Could it be that as long as it was only 'extremists' and other 'fellow travellers' who were the alleged subject of the attacks, our 'liberal intelligentsia' were not that troubled, but now they see their own positions of privilege threatened, they have at long last spoken out?

What is revealed here is something a lot more fundamental and a lot more insidious, for these self-same people who now talk of a "drift toward a police state" have seen the writing on the wall for at least past eight years, yet said nothing and indeed were quite content to accept the 'drift' so long as it didn't affect them.

Moreover, it reveals the incestuous relationship between our so-called intelligentsia and the state, why else do they continue to peddle the line that what is happening is some kind of encroachment on these mythical 'rights' that we are supposed to have had for centuries?

The uncomfortable truth is that democracy, even the limited form we currently have, exists for only as long as it's convenient to keep it. And it's a 'democracy' that is extremely narrowly defined, namely a two-party system that exists within a structure defined by an inherited and entrenched state bureaucracy that is, we are told, neutral and independent of the political process.

Yet the 'Establishment' as it is referred to, is a recognised institution composed of people who control the organs of the state; the judicial system, the civil service, the police and security services, education, the armed forces, and through their connections, the media and big business. These are people who are connected via the schools and universities they attended; the clubs they belong to and via family and business relationships.

However, the 'Establishment' is rarely, if ever referred to as being central to the maintenance of the State's power. Instead, it is presented to us as an amorphous and inherited set of relationships that are intrinsically 'English'. The illusion is complete and reinforced by the assumptions made about its 'inevitable' nature, hence the statement "freedoms citizens have taken for granted for centuries" flows logically from such assumptions.

The role therefore of the intelligentisa is to 'maintain the illusion of a society ruled by people who have some kind of 'natural right' to rule', benignly you understand, to suggest otherwise is to be 'un-English' and it goes by the name of a 'meritocracy', those who rule through ability alone, at least that's what we are told.

The Establishment is so powerful that it easily absorbs even those who 'rise through the ranks' and end up belonging to it, such as those who head up the current 'Labour' government, regardless that they come from working class backgrounds.

Why this is important to the current onslaught on our 'inalienable rights' becomes apparent when we trace the trajectory of our governments, especially since the end of WWII and that of the Labour Party, whose historic role has been to manage capitalism when the traditional party of capital and of the Establishment, the Tory Party, eventually became a redundant force.

There could be no clearer example of the obsolete nature of the Tory Party than the current 'contest' to find a Tory Blair. Hence, aside from the ineffectual Liberal Democrats, we now have a de facto one-party system. Thus it is imperative to establish a 'legal' framework to enshrine the one-party system, in other words, the corporatist, security state, so beloved of Mussolini, a state that if it is rule, needs an absolutist framework of laws with which to protect itself and with which to control and repress any opposition.

The role of the 'war on terror' therefore, is to justify a state that has lost all legitimacy and must perforce rule by force, admittedly without recourse to an English equivalent of the SS and given the fact that the majority of the citizens have opted out of a political process over which they have no say, won't be needed - yet; except of course to repress those who fulfill the role of 'enemies of the state', Muslims, 'extremists' and other malcontents, who can be safely handled by existing organs of the state, MI5, MI6 and the various and sundry 'security' services (in authoritarian regimes, they get called the secret police) all administered with the 'anti-terror' laws. Throw in a complicit corporate and state media, which is only too happy to maintain the illusion of a democracy and we have a 'very English' police state.

Goodbye Social Contract

What is referred to as the 'social contract' between capital and labour, formulated by the post-war Labour government as the response by the state to the demand by working people for a greater share of the wealth and for a genuine participation in the political process, has finally been abandoned. The reasons are complex but not inexplicable.

In the first place, the crisis of capital that came after the first 'oil crisis' of the early seventies, precipitated the attack on working people represented by the Thatcher/Reagan so-called neo-liberal agenda that sought to address the issue of the falling rate of profit by taking back the gains that working people had won during the 'golden years' 1945-75, the longest period of consistent growth the Western world had ever experienced.

In addition, the defeat of the US in Vietnam signalled to the developing world that in spite of the US's overwhelming military and economic power, imperialism could be defeated, admittedly at great human and material cost, and perhaps at a cost that in long run it could not bear. This was a defeat that the US simply could not tolerate and one that had to be answered and in my opinion anyway, led directly to the US intervention in Afghanistan and the subsequent and final 'proxy' war between the US and the Soviet Union, a war the Soviets lost.

There can be no doubt that the rise of the 'social contract' was in no small part due to the success of socialism's attraction to working people and, following the disasters of the 1920s and 30s, the failure of capitalism to solve the recurring crises that beset it. For proof of this we need look no further than the roles of successive Labour governments throughout this period to 'manage' capitalism. But each successive Labour government moved further and further to the right and at each turn, it abandoned chunks of its historical mandate as the 'party of labour' as the allure of socialism faded, due not only to the failures of Soviet Union but also to the propaganda of the Cold War.

Ultimately, the Thatcherite 'counter-revolution' which hinged on the deregulation or the abandonment of the state regulation of the 'market' that enabled capital to move unhindered across the planet and which in turn enabled the state to mount a frontal assault on the organised working class as industrial production moved to un-organised, cheap labour markets, most often in repressive regimes of one kind or another, where the lack of labour and environmental laws didn't get in the way of doing business.

However, the frontal assault on working people did nothing to alter the fundamental crisis of capital, if anything it exacerbated the problem as it led not only to an increasing flood of products, but products that fewer and fewer people could afford to purchase. Capital's response to this crisis was to invest the surplus of capital into the financial markets, also now deregulated. Thus increasingly, profit was generated through speculation, especially in the currency markets that further destabilised the weak and vulnerable economies of the world - the developing countries.

In turn, failing a genuinely progressive alternative, created the conditions for a variety of 'fundamentalist' movements to fill the political vacuum, some no doubt created by imperialism using classic divide and rule tactics, others out of sheer desperation.

It can be seen therefore, that there is a direct and organic relationship between repression abroad and repression at home; they are two sides of the same coin and result from the same process, the crisis of capital. Without once more entering into and engaging with the political process, I think it's safe to assume that failing an organised and coherent opposition to the current Labour government-led regime, and one that's not led by a posse of self-serving 'liberals', whose position of privilege is only now recognised as being threatened, the omens are seriously bad. And, if you'll forgive me for repeating myself, it's up to you to break free from the illusion, so cleverly constructed, that the attacks on our rights only apply to 'extremists', as they'll come knocking on your door in the morning, of that you can be sure, history has taught us that, over and over again.

By William Bowles repost 22 October 05

The Centre for Research on Globalization (CRG) at Global Research grants permission to cross-post original Global Research articles in their entirety, or any portions thereof, on community internet sites, as long as the text & title are not modified. The source must be acknowledged and an active URL hyperlink address to the original CRG article must be indicated. The author's copyright note must be displayed. For publication of Global Research articles in print or other forms including commercial internet sites, contact GlobalResearch.ca

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Unknown News Update - 2009
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Thursday, July 8, 2004

A blow for freedom

The supreme court ruling that Guantanamo Bay prisoners can challenge their detention, [imprisonment], in the US is almost certain to lead to hundreds being released, says Conor Gearty,

The US supreme court's two rulings that terrorist suspects, [? scapegoats and patsies for the Coalition of the Kiling's resource war's in the Middle East], held at Guant‡namo Bay and in America must have access to the US courts are among the most remarkable in the long history of that famous institution.

The positive implications for the hundreds of internees held by the US across the world have yet to be clarified but will be immense. The chance to argue their cases is almost certain to lead to the release of hundreds of detainees, [prisoners.] Already the habeas corpus applications have started to roll in, and the, [war criminal], Bush administration seems at a loss as to what to do. [?]

The rulings will go a long way towards restoring the credibility both of the judiciary in the minds of the American public and, more importantly, of the US system of government in the eyes of the world.

What the supreme court justices have said will make the shallow metaphor of an unending "war on terror", [war on freedom to steal resources], far harder to sustain, and may even hasten the end of an administration which this very same court effectively appointed nearly four years ago when it stopped the Florida vote recount.

In the first of the two cases, brought in the names of Rasul and Al Odah, two Australian and 12 Kuwaiti citizens challenged their detention, [imprisonment], in Guant‡namo following their capture, [kidnappings and renditions], abroad during hostilities between the US and the Taliban. [During the pre-emptive strikes on the sovereign nation states of Afghanistan and Iraq.]

Their attempt to challenge the legality of their detention, [imprisonment], before an independent tribunal and to obtain access to counsel floundered in the lower federal courts. The reason was a supreme court decision from 1950 concerning German prisoners who had been captured and convicted of war crimes in China and had then been imprisoned in occupied Germany (Johnson v Eisentrager).

That case appeared to establish unequivocally that aliens detained, [imprisoned], outside the sovereign territory of the US may not make a habeas corpus application to try to secure their release. It must have been a shock to the administration when the supreme court even decided to take the Rasul and Al Odah cases on, despite such clear authority - the first sign that events in the courtroom were spinning out of control.

Delivering the court's opinion - reflecting the votes of five of the nine justices - Justice John Paul Stevens made a point of distinguishing between the two situations: the citizens in the case before them were from countries not at war with the US; they had denied being engaged in or plotting acts of aggression against the US; they had never been afforded access to any tribunal, much less been charged with and convicted of any wrongdoing; and the territory in which they had been imprisoned was a place over which the US exercised exclusive jurisdiction and control.

To destroy the authority of Eisentrager without simply and crudely overruling it, Stevens had to engage in some characteristically nifty judicial trickery, finding a different basis for habeas corpus - one rooted in federal law rather than the constitution - which the earlier case had not thought to explore. It was this reasoning that particularly inflamed the three dissenting judges, William Rehnquist, Antonin Scalia and Clarence Thomas, and caused the ninth member of the Bench, Justice Anthony Kennedy, to set out his own, rather different reasons for agreeing with the majority.

Why did the supreme court, in the apt words of Scalia, Dick Cheney's shooting companion, spring "a trap on the executive, subjecting Guant‡namo Bay to the oversight of the federal courts even though it has never before been thought to be within their jurisdiction - and thus making it a foolish place to have housed alien wartime detainees, [prisoners],"?

The first explanation probably lies in quite how extreme and egregious the administration's policy was, cutting the judiciary out completely in a way that was far worse than what had happened even after the second world war, and in the process making no concessions whatsoever to even the modest concerns of mainstream judicial opinion.

In the Hamdi ruling, decided at the same time as the Guant‡namo case, the majority of judges saw off the administration's claim to be able to hold "enemy combatant", [scpagoats and patsies], US citizens indefinitely and without any due process.

This time the majority was eight to one, with the usually reliably conservative Scalia, incongruously joined by the liberal Stevens, penning a remarkable and eloquent attack on administration policy.

Only a patent political lackey on the bench could go as far as the executive demanded, and it is part of the wider ineptitude of the, [war criminal], Bush presidency that it forced its friends into such a corner. When only the George Bush Sr-appointee Clarence Thomas is on your side you know you are in deep trouble.

Second, and perhaps in these cases even more importantly, lurking in the shadows thrown by the legal analysis of the issues was the horror of Abu Ghraib.

In the US, even strong supporters of the war on terrorism, [war on liberty for resources], and indeed of the Bush presidency, have been shocked by what the policy of torture, now clearly seen to have been instigated at the highest levels of the administration, says about the claim to hold people beyond the reach of the law.

It no longer seems such a mystery why the authorities have been so keen to keep their prisoners from even a modicum of independent oversight. American legal culture, in the form of these supreme court justices, is not remotely near being so craven as to allow such conditions to continue, and unlike the state department and the decent, [?] mainstream military, by a happy quirk of constitutional history it can actually do something about it.

Third, there is the increasingly evident emptiness of Bush's self- declared "war on terrorism", [war on liberty for resources.] Of course the justices recognised that there have been atrocities and that they continue to occur, need to be prevented and, when they happen, to be punished. [Like the USA, CIA reichstag, call to arms, false flag operation September 11.]

But to secure counter- terrorism powers, [draconian laws], on the basis of fighting a war, [pre-empting a war], is to require oneself to be disciplined, [a war criminal], by (as the court's opinion in the Hamdi case put it) an "understanding" which must be "based on long-standing law-of-war principles". [Not illegal and degrading war crimes against humanity.]

Delivering that opinion, Justice Sandra Day O'Connor then added a very significant rider: "If the practical circumstances of a given conflict are entirely unlike those of the conflicts that informed the development of the law of war, that understanding may unravel." True, speaking for the court, O'Connor then immediately added, "But that is not the situation we face as of this date," but the Bush team has been warned. This blank cheque may be about to bounce..

These two judgments represent an important benchmark in the fight back against executive excess that has been initiated in the US and has also been evident here in the UK.

It has always been quite wrong to equate the plight of the detainees, [prisoners], under our Anti-terrorism, Crime and Security Act, [draconian laws], with those held in Guant‡namo, but that does not mean that their detention, [imprisonment], without trial on an indefinite basis is not wholly wrong.

It remains as cruel, unnecessary and as dangerous now as it was when first introduced. The alleged need for such effective internment was exposed by a coruscating report from a committee of distinguished privy counsellors at the end of last year. Perhaps emboldened by this report, the special court (SIAC) charged with overseeing our detention, [imprisonment], system has begun to flex its muscles.

In October the whole discriminatory basis of our detention, [imprisonment], system, allowing only foreign nationals to be held but exempting the rest of us, will finally come to be reviewed by the House of Lords for compatibility with the Human Rights Act. As in the US, our post-,[USA, CIA, reichstag, call to arms, false flag operation,] September 11 anti- terrorism laws, [scapegoat and patsy draconian laws], lapse: here it will be in November 2006. In the absence of a sharp upsurge in terrorist violence, [? State sanctioned terrorism,] there is room for cautious hope that the principles of civil liberties and respect for human rights have some moral mileage left in them.

The last word deserves to be left with the US supreme court from its judgment on Hamdi delivered by one its most conservative members, Sandra Day O'Connor: "It is during our most challenging and uncertain moments that our nation's commitment to due process is most severely tested; and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad." Let us hope the law lords - and law lady - are listening.

-Conor Gearty is professor of human rights law and director of the Centre for the Study of Human Rights at LSE, and a member of Matrix Chambers. He will speak, with attorney general Lord Goldsmith and solicitor general Harriet Harman, at a Society of Labour Lawyers public meeting on Fighting Terror and Preserving Human Rights, at 6.30 in committee room 6 at the House of Commons.

-Gregory Kable is a mentor and peace activist in the community and director of communication at the anti-zionist instiute of calling a spade a spade and telling it like it really is. No he is not the rulling class or any lord as such but a peasant in the real world of despotism in the 21 century. Remember the Common Hood.

By Conor Gearty and edited by Gregory Kable posted 8 July 04

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