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The End of 'Unalienable Rights'

By Robert Parry
January 24, 2006

Every American school child is taught that in the United States, people have “unalienable rights,” heralded by the Declaration of Independence and enshrined in the U.S. Constitution and Bill of Rights. Supposedly, these liberties can’t be taken away, but they are now gone.

Today, Americans have rights only at George W. Bush’s forbearance. Under new legal theories – propounded by Supreme Court nominee Samuel Alito and other right-wing jurists – Bush effectively holds all power over all Americans.

He can spy on anyone he wants without a court order; he can throw anyone into jail without due process; he can order torture or other degrading treatment regardless of a new law enacted a month ago; he can launch wars without congressional approval; he can assassinate people whom he deems to be the enemy even if he knows that innocent people, including children, will die, too.

Under the new theories, Bush can act both domestically and internationally. His powers know no bounds and no boundaries.

Bush has made this radical change in the American political system by combining what his legal advisers call the “plenary” – or unlimited – powers of the Commander in Chief with the concept of a “unitary executive” in control of all laws and regulations.

Yet, maybe because Bush’s assertion of power is so extraordinary, almost no one dares connect the dots. After a 230-year run, the “unalienable rights” – as enunciated by Thomas Jefferson, James Madison and the Founding Fathers – are history.

Legal Analysis

The Justice Department spelled out Bush’s latest rationale for his new powers on Jan. 19 in a 42-page legal analysis defending Bush’s right to wiretap Americans without a warrant.

Bush’s lawyers said the congressional authorization to use force against the perpetrators of the Sept. 11, 2001, terrorist attacks “places the President at the zenith of his powers” and lets him use that authority domestically as well as overseas. [NYT, Jan. 20, 2006]

According to the analysis, the “zenith of his powers” allows Bush to override both the requirements of the Fourth Amendment, which protects against searches and seizures without court orders, and the 1978 Foreign Intelligence Surveillance Act, which created a special secret court to approve spying warrants inside the United States.

In its legal analysis, the Justice Department added, “The president has made clear that he will exercise all authority available to him, consistent with the Constitution, to protect the people of the United States.”

While the phrase “consistent with the Constitution” sounds reassuring to many Americans, what it means in this case is that Bush believes he has unlimited powers as Commander in Chief to do whatever he deems necessary in the War on Terror.

Since the War on Terror is a vague concept – unlike other wars the United States has fought – there also is no expectation that Bush’s usurpation of traditional American freedoms is just a short-term necessity. Instead it is a framework for future governance.

For a time, some Americans also may have thought that Bush’s commander-in-chief powers applied only to foreigners linked to al-Qaeda and to the occasional American who collaborated with the terrorist group. So they didn’t mind much when Jose Padilla was arrested in Chicago and locked up without charge as an “enemy combatant.”

That indefinite detention might have violated the constitutional principle of habeas corpus – the requirement that every citizen has a right to due process and a fair trial – but many Americans were swayed when Bush called Padilla a “bad guy” who was getting what he deserved.

Now, Americans have learned that Bush considers his powers to extend to a much broader category of citizens. That is the significance of Bush’s warrantless wiretapping program directed against hundreds of American targets at any one time.

In bypassing the Foreign Intelligence Surveillance Act, Bush demonstrated his belief, too, that he has the power to ignore specific laws as well as broader constitutional principles.

Lies and Lies

Another factor complicating the ability of Americans to understand the emerging constitutional crisis is that Bush has shown a readiness to lie about the cases.

For instance, though he secretly approved the wiretap program in 2002, he kept telling the public that wiretaps could only be done with court warrants. In a speech in Buffalo, N.Y., on April 20, 2004, Bush went out of his way to state that he had not abrogated the rights of American citizens under the Fourth Amendment.

“By the way, any time you hear the United States government talking about wiretap, it requires – a wiretap requires a court order,” Bush said. “Nothing has changed, by the way. When we’re talking about chasing down terrorists, we’re talking about getting a court order before we do so.”

After the warrantless wiretaps became public in December 2005, Bush continued to misrepresent the program, calling it “limited” to “taking known al-Qaeda numbers – numbers from known al-Qaeda people – and just trying to find out why the phone calls are being made.”

In his folksy style, he told an audience in Louisville, Kentucky, on Jan. 11 that “it seems like to me that if somebody is talking to al-Qaeda, we want to know why.”

But Bush’s reassuring tale wasn’t true. The program that Bush described could easily be accomplished under the Foreign Intelligence Surveillance Act using a provision that lets the government wiretap for 72 hours before going to the special court for a warrant.

The reality is that Bush has authorized the National Security Agency to scoop up a vast number of calls and e-mails. The operation is so large that it has generated thousands of tips each month, which are passed on to the FBI.

“But virtually all of [the tips], current and former officials say, led to dead ends or innocent Americans,” the New York Times reported. “FBI officials repeatedly complained to the spy agency that the unfiltered information was swamping investigators. … Some FBI officials and prosecutors also thought the checks, which sometimes involved interviews by agents, were pointless intrusions on Americans’ privacy.” [NYT, Jan. 17, 2006]

Another example of Bush’s assertion of his supremacy over laws enacted by Congress came in December 2005 when he signed Sen. John McCain’s amendment barring cruel, inhuman and degrading treatment of detainees in U.S. custody.

Bush then issued a so-called “signing statement” that reserved his right to ignore the law.

“The Executive Branch shall construe [the torture ban] in a manner consistent with the constitutional authority of the President to supervise the unitary Executive Branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power,” the signing statement read.

In other words, since Bush considers his commander-in-chief authority boundless, he can waive the torture ban whenever he wants, making it virtually meaningless.

The Bush/Laden Symbiosis

But just as public skepticism about Bush’s exercise of authority was approaching critical mass, Osama bin-Laden resurfaced on Jan. 19 in a new audiotape sent to al-Jazeera TV, ending more than a year of silence.

The voice on the tape – identified as that of bin-Laden both by al-Jazeera and the CIA – predicted America’s defeats in Afghanistan and Iraq while warning of new attacks inside the United States.

“Operations are under preparation, and you will see them on your own ground once they are finished,” said bin-Laden, according to a transcript of the tape.

So, Bush can now cite this new threat from al-Qaeda as well as the bloody conflict in Iraq as justifications for continuing to consolidate his powers as the “unitary executive.”

The latest bin-Laden audiotape also continues a long – and curious – symbiotic relationship between the Bush family and the bin-Ladens, dating back to Bush’s days as a young businessman.

In 1979, Bush’s friend James Bath was the sole U.S. business representative for Salem bin-Laden, scion of the wealthy Saudi bin-Laden family and Osama’s half-brother. While fronting for Salem bin-Laden, Bath helped bankroll Bush’s first company, Arbusto Energy, by investing $50,000 for a five percent stake.

In the 1980s, Osama bin-Laden established himself as an Islamic fighter by battling side-by-side with Afghan rebels whose guerrilla war against the Soviet Army and its surrogates was staunchly supported by George H.W. Bush, first as vice president and then as president.

By the late 1990s, bin-Laden had become recognized as a major terrorist threat against the United States. Still, when the CIA warned George W. Bush on Aug. 6, 2001, that bin-Laden was determined “to strike in U.S.,” Bush went fishing and continued a month-long vacation, failing to rally the government to examine available clues and tighten security.

A little more than a month later, on Sept. 11, 2001, when hijacked planes crashed into the Twin Towers and the Pentagon, the senior George Bush and members of the bin-Laden family were participating in a Carlyle Group investment meeting in Washington.

In the days that followed, as George W. Bush’s Justice Department rounded up hundreds of Arab cab drivers and other Muslims on minor visa violations, the bin-Ladens were spirited out of the United States after only cursory questioning. [For details, see Craig Unger’s House of Bush, House of Saud.]

Ironically, too, Bush’s accumulation of power since the Sept. 11 attacks has gone hand-in-hand with his failures connected to Osama bin-Laden. For instance, if Bush had finished off al-Qaeda’s leaders in Afghanistan in late 2001 and early 2002, he would have a weaker foundation for his new authority now.

By letting bin-Laden and other al-Qaeda leaders escape when they apparently were cornered in the mountains of Tora Bora, Bush kept alive a plausible scenario for additional al-Qaeda attacks inside the United States and thus the justification for his unrestrained powers as Commander in Chief.

The escape from the Americans in Afghanistan helped bin-Laden, too. He emerged as a folk hero to many Islamists.

By invading Iraq in 2003, Bush breathed more life into his presidential powers. But another winner was bin-Laden, who exploited Islamic resentment about the Iraq War to recruit new terrorist cadre and train them in direct conflict with American soldiers.

Just as Bush’s boasts about getting bin-Laden “dead or alive” boosted the Saudi’s standing with radical jihadists, bin-Laden’s public hostility to Bush has helped the president’s standing with the American people at key junctures.

In fall 2004, when Bush was locked in a tight race with Democratic presidential nominee John Kerry, bin-Laden released a videotape that conservative pundits billed as Osama’s endorsement of Kerry, a development that predictably helped Bush gain ground in the campaign’s closing days.

Now, as Bush faces increased U.S. public skepticism about the Iraq War and his accretion of powers, bin-Laden shows up again with a statement that calls on the United States to admit defeat in Iraq and threatens new terror attacks on U.S. soil.

Not surprisingly, the reaction of many Americans to the bin-Laden tape is to harden their commitment to keep U.S. troops in Iraq – the outcome that both bin-Laden and Bush favor, albeit for different reasons.

Bin-Laden’s warning of a new terrorist assault also stokes the fears of Americans who are likely to react by giving Bush greater leeway in the War on Terror.

A day after bin-Laden’s audiotape was aired, Bush’s chief political adviser Karl Rove signaled that the Republicans would again try to ride the War on Terror to another round of victories in November 2006.

“Republicans have a post-9/11 worldview and many Democrats have a pre-9/11 worldview,” Rove told a Republican National Committee meeting on Jan. 20. “That doesn’t make them unpatriotic – not at all. But it does make them wrong – deeply and profoundly and consistently wrong.” [Washington Post, Jan. 21, 2006]

Like the symbiotic relationship that exists when birds feed off ticks burrowed into the hides of rhinos, the Bush/Laden symbiosis may be entirely unspoken and even unintentional. But there can be little doubt that Bush has raised bin-Laden’s stature among radical Islamists while bin-Laden has helped Bush consolidate his authoritarian powers inside the United States.

Today’s Challenge

But the crucial question now is whether the American political system will acquiesce to Bush’s historic power grab – or resist it.

So far, the major U.S. news media and leading Democrats have closed their eyes to the totality of Bush’s claims to unprecedented Executive power. Senate Democrats have even shied away from threatening to filibuster Bush’s Supreme Court nomination of Samuel Alito, one of the legal architects of the Imperial Presidency.

One of the few political leaders who has sounded the alarm is former Vice President Al Gore, who addressed the issue in a speech on Jan. 16, the holiday honoring Martin Luther King Jr.

“An Executive who arrogates to himself the power to ignore the legitimate legislative directives of the Congress or to act free of the check of the judiciary becomes the central threat that the Founders sought to nullify in the Constitution – an all-powerful Executive too reminiscent of the King from whom they had broken free,” Gore said.

“As the Executive acts outside its constitutionally prescribed role and is able to control access to information that would expose its actions, it becomes increasingly difficult for the other branches to police it. Once that ability is lost, democracy itself is threatened and we become a government of men and not laws.”

Except for Gore, however, few national leaders or news commentators have dared to draw clear conclusions about Bush’s authoritarian tendencies.

No one, it seems, wants to give up on the most memorable passage of the Declaration of Independence, that “we hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are Life, Liberty and the Pursuit of Happiness.”

Today, however, these truths are no longer “self-evident,” nor are the rights “unalienable.” They depend on the beneficence and generosity of George W. Bush.

Despite his assertion of unlimited power, Bush surely will not interfere in the lives of most Americans; just the small number who somehow get in his way. Most Americans probably won’t even notice their altered status, from citizens to subjects.


Robert Parry broke many of the Iran-Contra stories in the 1980s for the Associated Press and Newsweek. His latest book, Secrecy & Privilege: Rise of the Bush Dynasty from Watergate to Iraq, can be ordered at secrecyandprivilege.com. It's also available at Amazon.com, as is his 1999 book, Lost History: Contras, Cocaine, the Press & 'Project Truth.'

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