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The Bush Repression

Aryeh Neier, the president of the Open Society Institute and a founder  of Human Rights Watch, is the author most recently of Taking Liberties: Four Decades in the Struggle for Rights.

The Bush Repression 
by Aryeh  Neier

How will President George W. Bush’s administration be remembered historically? After five years in office, and with another three years to go, some answers are already apparent. Others are emerging gradually. The latter category includes an increasing assault on civil liberties within the United States that now compares to that of Richard Nixon’s administration more than thirty years ago.

Of course, civil liberties were bound to suffer in the wake of the terrorist attacks of September 11, 2001. Throughout American history, threats to national security, whether real or imagined, have led to clampdowns on the rights of citizens and, to a far greater extent, on the rights of immigrants and others suspected of acting in the interests of alien forces.

In the twentieth century, abuses of civil liberties were particularly severe during four periods. In the years 1917 to 1919, US participation in World War I and anarchist bombings after the war led to almost two thousand federal prosecutions, mass roundups of aliens, and summary deportations. During World War II, Japan’s attack on the US was followed by the internment of more than 120,000 Japanese-Americans because of their race, including many who were born in the US.

In the late 1940s and the 1950s, the Cold War and fears that the Red Menace would sap American resolve from within led to myriad anti-subversive programs, with tens of thousands of Americans losing their livelihoods as a result. Finally, during the Nixon years, the president’s paranoia about opposition to the Vietnam War and to his policies fuelled a pattern of abuses that eventually brought about his resignation in disgrace.

The Nixon administration’s legacy is particularly instructive in assessing the Bush record. Though Americans tend to lump Nixon’s violations of civil liberties together under the heading of “Watergate,” much more was involved than the break-in at Democratic Party headquarters and the subsequent cover-up. The participants in those events included the “Plumbers,” a personal secret police established by Nixon and so named because one of their tasks was to eliminate leaks of information that the White House did not want to disclose.

Another secret assault on civil liberties was Nixon’s adoption of the “Huston Plan” which authorized political surveillance by burglary, electronic eavesdropping, and the use of the military to spy on civilians. Nixon used these methods against political opponents, journalists, and government employees suspected of disloyalty to the president.

As far as we know, Bush has not gone that far. Nevertheless, electronic eavesdropping without court authorization, of the sort Bush ordered starting in 2002, played a particularly important part in Nixon’s downfall. One of the three counts against Nixon in the vote to impeach Nixon by the House of Representatives’ Judiciary Committee was based on such eavesdropping.

In fact, Bush pursued his policy despite a 1978 law – adopted in response to the Nixon-era abuses – that specifically requires judicial approval, and in contradiction to his public assurance that no such eavesdropping takes place without a court order. Now that his electronic surveillance program has been exposed, Bush’s Justice Department has launched an investigation into how the news became public, threatening the journalists who reported the information.

But even before the latest revelations, the Bush administration’s assaults on civil liberties were legion, including its imprisonment of hundreds of men without charges at Guantánamo Bay in an effort to evade judicial review of their cases. It also rounded up, jailed, and deported hundreds of aliens in an anti-terrorist drive none of whose targets was shown to have any link to terrorism.

The list does not stop there. Bush’s subordinates authorized methods of interrogation that led to torture, and his administration adamantly resisted legislation that would ban its use. It even insisted that it could imprison an American citizen, José Padilla, incommunicado for an indefinite period without criminal charges until, faced with the prospect of Supreme Court review, it suddenly pressed charges that had nothing to do with the allegations that had formed the basis for his detention.

Indeed, a hallmark of the Bush administration’s violations of civil liberties is that many involve efforts to evade judicial review. Guantánamo, the deportations, the Padilla case, and the electronic eavesdropping program all share this characteristic. At the same time, Bush has systematically packed the federal courts with judges chosen for their readiness to defer to presidential power. His latest nominee to the US Supreme Court, Judge Samuel Alito, exemplifies this trend.

The mood in the US today is far from the point that it reached in 1973 and 1974, when the drive to impeach Nixon and convict him in the US Senate forced him to resign. But, while it seems safe to predict that Bush will serve out the rest of his term, it also appears certain that history will look upon him as a president who sought to undermine civil liberties.

Unfortunately, given Bush’s repeated assertions – in defiance of America’s constitutional tradition of checks and balances – that his office endows him with unilateral powers to violate rights, he appears to be untroubled by that prospect.

Aryeh Neier, the president of the Open Society Institute and a founder of Human Rights Watch, is the author most recently of Taking Liberties: Four Decades in the Struggle for Rights.

Copyright: Project Syndicate, 2006.

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Perhaps we should be asking if any of us will be around in the future to debate George Bush's legacy if he attacks Iran which seems inevitable.

Or maybe he will just changes the rules so he remains president, forever.

A view from an American:

A view from an American:

This has nothing to do with Iran and everything to do with the USD:


If Alito and Bush are not stopped, you will have war and dictatorship to worry about.

Iran is the pretext to set off more terrorism at home and shift to rule by emergency decree - just like the Federalist society was set up to do once they take control of the Supreme court.


Looks like things may get really interesting come around March.

It's a good point, Ed.

It's a good point, Ed. Fiona. Supreme Court judges are, if they are anything, no longer subject to their master's bidding. They can, if they choose, find their own way through the law.

It may be more relevant for Alito, who has 15 years of following precedent. He was enigmatic during the hearings. What will happen when he is able to soar on his own wings? A lot of conservatives are very disturbed by executive privilege, and he probably hasn't had to address the issue before. I'd still like to see an analysis of his judgements, though.

Roberts is different. He is a recent employee of this administration. I didn't re-read that judgement I linked to, but my recollection is that it is very strong on executive privilege. Maybe it was just a job application, but I wouldn't want to rely on that.

But you shall know them by their judgements, and they haven't made any on the Supreme Court yet.

Just another thought. A Supreme Court justice is, of course, above the hurly-burly of petty politics. Gore v Bush was a simple matter of determining the law. But if the hounds are baying, and the President is up the creek without a paddle, might they sometimes give more than usual consideration to their judgements?

Answers to questions ... well worth a read

Recently I found Justin Wilshaw's template for debating points an interesting innovation, and was pleased to discover that in a similar vein Ann Woolner, a columnist for Bloomberg News, has prepared one for Judge Alito.

I also found Americans Support Wiretaps? Not Really (TomPaine.com) interesting to read after I'd posted Neier's article this morning. 

Questions for Alito

Craig Rowley writes: "Recently I found Justin Wilshaw's template for debating points an interesting innovation, and was pleased to discover that in a similar vein Ann Woolner, a columnist for Bloomberg News, has prepared one for Judge Alito."

Woolner makes a good point: do we really want Federal judges to prejudice their future cases by declaring in advance their leanings? I would say no. Alito has said nothing but what you would expect: he has asserted that he would rule on the relevant law, case by case. Whether he lives up to this principle... who knows?

The one encouraging point is that most Supreme Court justices have not, as a rule, ruled as expected on the basis of ideology. Sandra Day O'Connor, whose seat Alito has been nominated to fill, is an example. When apppointed by Reagan, she was expected to rule along (right-wing) ideological lines. It didn't happen. Other supposedly "left-wing" justices have not always ruled as expected by ideologues.

The fact that Bush has appointed conservatives should be no surprise. Of course he's doing that - he's a conservative Republican! You were expecting maybe Noam Chomsky?

The Judges

Roe v Wade was a distraction as far as Roberts and Alito are concerned. The real issue is their deference to Presidential authority. I find myself in full agreement with Will Howard.

The last few years I have read a few American legal judgements - mainly the GITMO cases and their precedents. The degree to which Presidential actions have been held to be outside judicial review is very striking. That's outside judicial review! It's a bit more difficult here, but the Government has been doing it's best, notably with the privative clauses in the immigration legislation. It's easier to appoint a High Court judge here, too.

Roberts in particular is one of the President's men. I don't recall the details of his long association with serving the executive branch, but it's there. Here is his Audition Judgement (small PDF), and a commentary from Yale (only a student - but senior). Alito also has distinguished service in the executive branch, but more distant. He is mainly just a safe, conservative choice with the right connections. But an analysis of his judgements would be interesting.

The big cases coming up in the US Supreme Court are going to be on executive authority. Roe v Wade will probably come around again, but it is guaranteed that there will be cases on the GITMO detentions. Probably on torture and eavesdropping, too. They are going to depend on the Supreme Court's view on presidential powers. It's Rule of Law vs Presidential Decree.

And my boss just sent this: Earth to America (quicktime video).

Ed. Fiona: Mark, I think that your points are well-made. However, in order not to be too despairing, this:  http://bostonreview.net/BR31.1/hansonbenforado.html is worth a read (thanks to John Henry Calvinist.)

Judicial Review

Neier notes "a hallmark of the Bush administration’s violations of civil liberties is that many involve efforts to evade judicial review."

I think this is a key concern, both in the USA and here in Australia.

As Neier also notes, Bush will have had the opportunity to appoint at least two Supreme Court justices and fill numerous other seats on the Federal bench. These appointments will have effects far beyond Bush's eight years in the White House. That's what worries me.

Benjamin Franklin

This guy is just brilliant to quote when listening to Bush preach. This one seems very fitting of the spirit of this short article:

In these sentiments, Sir, I agree to this Constitution, with all its faults, — if they are such; because I think a general Government necessary for us, and there is no form of government but what may be a blessing to the people, if well administered; and I believe, farther, that this is likely to be well administered for a course of years, and can only end in despotism, as other forms have done before it, when the people shall become so corrupted as to need despotic government, being incapable of any other.

Given this clear demonstration of a despotic government, would Franklin then see the people as corrupted? This question is of course pure posturing; the question I prefer is whether, should that argument be made, would Bush then argue for the necessity of his style of governance?

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