EROSION OF THE RULE OF LAW IN THE UNITED STATES

The following is an opinion piece I wrote for an online socio-political discussion group (UTS Groups) shortly after the attacks of September 11.

I would like to refer all UTS Group subscribers to a thought provoking article in today’s Good Weekend magazine – a Sydney Morning Herald (SMH) publication. The article, titled "Beyond good and evil", is penned by Richard Neville and raises a number of questions concerning the United States response to the September 11 attacks. It can be found at www.richardneville.com.au. Approximately a year back, Neville wrote a similar article arguing that "Uncle Sam" was the face of a nation hell-bent on furthering its own interests. Over the course of the past week I have reflected on a number of publications commenting on the erosion of the "rule of law" in America.

President Bush’s father commented in 1992 that: "The American way of life is not negotiable." At the time I understood his words as reflective of the manner in which corporate America views other countries. It comes as no secret that bodies such as the World Bank, the Inernational Monetary Fund (IMF) and most well-known investment banks (eg Macquarie Bank) teem with third world analysts. These highly educated individuals are rarely ever asked to comment upon difficulties faced in the third world and how best to address them. For the most past their work consists of examining development and/or infrastructure projects and investments. At the end of the day the question they have to answer is: "How can we profit from X, Y and Z?"

Neville comments that corporate America treats other countries according to their respective ratings: market, mine, sweatshop or basket case. He rightly comments that most Americans, including those employed by Uncle Sam, are obliviousness of the deeds done in their name. American citizens are not the only ones who are constantly bombarded with propaganda.

"Uncle Sam’s rapaciousness is both driven and disguised by a mix of pop culture, mass media, brand fetishism and propaganda so clever and tantalising that most of us feel the sooner we’re indoctrinated into the American dream the better. Hey, don’t stop the music."
Richard Neville (Good Weekend, SMH; 12/04/02)

The question of how America views itself begs to be answered. Perhaps it is as a White Knight – one that upholds democracy and topples tyrannies the world over. The purpose is to make the world a better place, but for whom?

The US has stopped playing by its own rules and those of international law. Neville argues that as the twin towers collapsed so did America’s sense of invincibility. Perhaps that is why the deaths in Manhattan proved more shocking that the deaths of hundreds of thousands of terror victims elsewhere in the world. Maybe so, but the outpouring of sympathy afforded to victims of the September 11 attacks has a more plausible explanation, albeit a disturbing one. The proposition that loss of innocent life ought to be mourned, irrespective of who happens to die, should be afforded due merit. Reality dictates otherwise. Few would be able to remember the last time the lit a candle, or participated in a momentary silence, for those who died and continue to die in Nicaragua, Rwanda, East Timor, Afghanistan, Bangladesh etc.

The collapse of the twin towers, and an immense ego, resulted in a mob crying out for vengeance. Neville quotes Australian expatriate Steve Dunleavy as having the following to say in Rupert Murdoch’s New York Post:

"The response to this unimaginable 21st century Pearl Harbour should be as simple as it is swift – kill the bastards. A gunshot between the eyes, blow them to smithereens, poison them if you have to. As for cities or countries that host these worms, bomb them to basketball courts."

Steve Dunleavy (New York Post, 12/09/2001)

Bomb who though? The Taliban, although insufferable, did not plan or execute the attacks of September 11. Yet, as Neville argues, why let the truth get the way of a sitting duck? So it came to pass. The US went ahead and bombed Afghanistan to kingdom come. The power of the world’s mightiest air force being unleashed onto the world’s poorest nations. Bombing rubble into yet more rubble. The Taliban was rightly portrayed as vile and despicable, mutilating criminals, disallowing free speech and subjugating women to a horrendous existence. If these reasons alone are justifiable for crushing a nation why are there not B52 bombers flying over Saudi Arabia as we speak? Because it is a coalition ally, that is why. Further, the Saudi Arabian royal family, that has built its vast fortune on exporting oil, needs the business.

Neville mentions that, until recently, the Taliban was seen as a commercial ally. Its officials were flown to Bush’s home state of Texas where they were made to feast on T-Bone steaks which I seriously doubt as falling within the "halal" variety. The vice president of oil giant Unocol happened to be present during these quaint get togethers. Part of the Unocol agenda was to siphon some 60 billion barrels of oil (perhaps up to 270 billion) from Turkmenistan, part of the last great resource frontier. The plan was to pump oil across Afghanistan, through Pakistan to a terminal in the Arabian Sea. Until recently, these talks were seen to have collapsed in December 1998, when Unocol pulled out, citing civil unrest. However, the Bush Administration resumed talks soon after the election, believing that the Taliban could be relied upon to support the pipeline.

Interestingly enough, another party to these talks happened to now failed energy giant Enron. With the backing of the White House Enron managed to deregulate, privatise and vandalise several developing nations. Ken Law, a former Pentagon economist, was the single biggest investor in Bush’s campaign for president. In return, Law was able to appoint White House regulators, shape policies and block the regulation of offshore tax havens. Further, Enron had intimate contact with Taliban officials according to web newspaper "Albion Reporter". Much of this alleged contact was in respect of the now defunct Dabhol project in India which was set-up top benefit from a hook-up with the pipeline.

Negotiations collapsed in August 2001 when the Taliban asked the US for help in respect of its failing infrastructure. The Taliban further asked for a portion of the oil to satisfy local needs. The US response was allegedly: "We will either carpet you in gold or carpet you in bombs". The notes of these talks are currently the subject of a lawsuit between Congress and the White House. As if this is not enough to sicken anyone consider the following. At the end of last year Bush appointed Zalma Khalilzad and Hamid Karzai as part of the special convoy to Kabul. Both men are former consultants to Unocol.

The manner in which Bush simplifies complex issues is a tribute to linguistics. Talks about launching a crusade, eliminating the "axis of evil" and depictions of Americans as "good" and their quarry as "evil" are readily digested by the masses. In effect Bush is only mirroring the mindset of his enemy. His words do not allow for blurred lines or grey hues. Anything is permitted in the "war against terrorism". According to one Sydney Morning Herald those tainted with al-Qaeda connections have been secretly sent to lands where torture is legal. The US is not stranger to terrorist acts, not because it has often been a target in the past, but because it has instigated numerous terrorist acts of it own. The US is not always on the side of angels and three examples, cited by Neville, prove apt examples:

1985, Lebanon: The CIA plants a truck bomb outside a mosque in Beirut, aiming to kill a Muslim cleric. As the faithful leave the mosque, the blast kills 80 and wounds 250, mostly women and children. (By comparison, the March attack on a Protestant church in Islamabad killed five worshippers and injured 40.) In Beirut, the targeted mullah was unhurt. None of the victims was compensated.

1989, Panama: After sustained Orwellian "hate week" campaigns against former US ally and puppet president Manuel Noriega, along the lines of those previously directed at Fidel Castro, Colonel Gaddafi and Saddam Hussein, an aerial assault is launched on Panama City. The official reason is Noriega's drug trafficking, long known to Washington. Another motive is maintaining control of the Panama Canal, in the face of populist stirrings. An activist tenement barrio is bombed to rubble, a compliant government is installed. Various independent inquiries put the deaths between 3,000 and 4,000, most of the corpses still rotting in pits on US bases, off limits to investigators. American news networks did not regard the UN's overwhelming condemnation of the attack to be worth broadcasting.

1998, Sudan: The reign of Bill Clinton, the first black-schmoozing rock'n'roll pot-head President, is now derided as a time when America went soft on recalcitrant regimes (a period of "turning the other cheek", as one dipstick Sydney Morning Herald columnist put it). How soft is soft? In August 1998, Bill Clinton sent Tomahawk missiles to flatten the Al Shifa pharmaceutical plant in the Sudan, claiming it was concocting chemical weapons. Actually, this plant had bolstered pharmaceutical self-sufficiency, and produced 90 per cent of the drugs needed to treat malaria, TB and other diseases. Accusing its owner, Saleh Idris, of associating with terrorists, Washington froze his London bank account. The case was contested and the US backed down. The Sudan's death toll from this attack "continues quietly to rise", notes Chomsky, citing the "tens of thousands of people, many of them children", who have suffered or died from a range of treatable ailments. The chairman of the board of Al Shifa, Dr Idris Eltayeb, remarked that the destruction of his factory was "just as much an act of terrorism as the twin towers - the only difference is we know who did it".

Richard Neville (Good Weekend, SMH; 12/04/02)

The above examples have been "cut and pasted" directly from Neville’s article. He mentions further instances of "war crimes" committed by US troops in Afghanistan, some of which involve the gunning down of unarmed combatants in execution style massacres.

The innocent death toll in Afghanistan remains unknown. The lack of this simple statistic says much about the manner in which the 'war against terrorism’ has and is being conducted. In February the Pentagon announced plans of providing news items to foreign journalists, "possibly even false ones, to manipulate emotions. Herold, an economics professor at the University of New Hampshire, amalgamated various reports of "collateral damage" and arrived at the figure of 3700. Herold later told ABC radio that a much more realistic figure would be closer to the 5000 mark – greater than the numbers slain in the twin towers. What is most disturbing however, is the fact that his reserch only covers the period from. Since that time, Neville argues, "missiles have continued to rain upon Taliban and toddler alike."

Neville wrote to an American colleague with The Washington Post and asked him to comment on the obvious lack of publicity given to the civilian death count in Afghanistan. The answer was a cool response of: "I think you would find most people here focussed on our own thousands killed intentionally". The operative word in this sentence is "intentionally". B52s armed with massive payloads and bad intelligence will surely result in the loss of innocent life – such that a "reckless disregard for human life" is more than established. Yet, we don’t call it murder. It is merely collateral damage, hardly deemed to be worth reporting in the grander scheme of things.

The US government has stopped playing by its own rules and those of international law. It has removed the rights of foreigners suspected of terrorism to a full and fair trial. Instead, anyone that President Bush has a reason to believe is a member of Al Qaeda, or has engaged in international terrorism, or has harboured terrorists can now be tried before special military tribunals without the usual rules of evidence, without a rigorous burden and proof and without a jury. Military court materials offer the accused fewer protection than do regular trials. Trial before these special military tribunals in turn, offer far fewer protection than those afforded by court martial.

When the Russians or the Chinese try suspected Chechen or Uighur Muslims in military courts, the US State Department vehemently and rightly denounces such trials as human rights violations. When Timothy McVeigh committed his outrage, the US accorded him a full and fair trial before executing him. When Al Qaeda members bombed the World Trade Center and the United States Embassies in Tanzania and Kenya, US federal court tried and convicted them. But now the job has been taken from United States courts and entrusted to what an eminent Yale law professor described as Kangaroo courts.

The US government detained thousands of people suspected of involvement in the September 11 attacks, and those considered material witnesses to it, for upwards of two months without charge and without even notifying their families that their loved ones had been detained – on the ground that if the detainee proved to be a terrorist, knowledge of their detention might assist other terrorists. Habeus corpus evolved many centuries ago to stop English Kings tossing those they did not like into dungeons and leaving them there. It requires authorities to justify detention of subjects, or release them. It is one of the most important checks on the power of potential dictators and despots.

The US government has removed the need for a warrant for a wiretap of a phone call between a suspected terrorist and his or her lawyer, on the ground that the lawyer might pass on the information to other terrorists. The title of Act that removes this critical check and balance is the aptly named "USA Patriot Act".

President Bush has further revoked the order that makes assassinations illegal, so as to allow troops to dispose of Bin Laden and other terrorists if caught. In doing so he might yet make his country party to a murder under international law. For example, Bin Laden might have surrendered but military law does not permit his execution. One would have thought that the US, of all countries, would have the most experience in respect of the down sides of assassinations as a dispute resolution technique. I can only assume the country has been receiving some revisionist lessons from the Israeli Army.

Interestingly enough President Bush did not obtain authority from the Security Council providing for the expulsion of Bin Laden and associated terrorists from Afghanistan. His own father obtained one before using force to expel Iraq from Kuwait.

Disrepect for the law has not been limited to the US government. A number of schools in the south held prayers following the September 11 attacks as a means of providing "solace to children". These actions were in direct contravention of the constitutional separation of church and state. The prohibition on school prayer can hardly be compared to a right as fundamental as habeus corpus. Nonetheless, school prayer is prohibited by a series of US Supreme Court decisions. Was the lasting effect on students the solace of prayer, or the example of their school principals knowingly, publicly and repeatedly flaunting the law of the land?

In the days following September 11 a number of newspaper columnists were fired for writing articles critical of Bush’s initial response to the attacks. A number of leading academics, including Eduard Said and Francis Boyle, were vilified and in some cases physically attacked for questioning United States foreign policy. Boyle was, for a time, banned from Internet academic discussion group because others objected to his views. SO there you go. A group of American law professors blithely ignoring the First Amendment in times of war. The wouldn’t be the only ones though.

Even commercial laws seem malleable and not mandatory. The patent for Cipro, the anti-anthrax drug, is owned by a German company known as Bayer. The US decided that the antibiotic was too expensive and threatened to break the patent and manufacture the drug itself unless Bayer dropped the price dramatically which it did. This from the very country that has used the threat of trade sanctions to require poor countries to uphold and enforce patents owned by US multinationals.

In the greatest of ironies consider the following. Since the 1998, the US Justice Department has maintained records of gun purchases in sync with the so-called Brady Law that seeks to prevent those with criminal records from purchasing firearms. The records are kept for 90 days. On 16 September 2001 the FBI sought to check the names of its detainees against those on the record to see whether any had purchase a gun in the past 90 days. It turned out that some had. The US Justice Department refused to divulge information concerning the identities of the gun purchasers to the FBI. The same department that disregarded habeus corpus and other fundamental human rights, withheld this information in order to protect the right to privacy of these gun owners. Whether the detainees had purchased a gun in the preceding 90 days was a secret, to be kept even from the FBI, so as to preserve the essential American democratic right to own a gun without others knowing of it. The power of the gun lobby at work.

AT this point I would like to leave you with a quote from Robert Jackson, ironically the Chief Prosecutor for the United States in the war crimes trials at Nuremberg after WWII. In his opening address Jackson said:

"The wrongs which we seek to condemn and punish have been so calculated, so malignant and so devastating that civilisation cannot tolerate their being ignored because it cannot survive their being ignored, because it can not survive their being repeated. That .. great nations … stung with injury stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of law is one of the most significant tributes that Power has ever paid to reason."