The First, Fourth, Fifth, Sixth, and Eighth Amendments in the Bill of Rights have all been discarded or abridged in the rush to make it easier to investigate, torture, and jail both foreigners and American citizens.

The record of the America’s law making body Congress and its judiciary since 9/11 has been nothing short of pathetic.  The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 might well be described as one of history’s more spectacular euphemisms employed to gut a constitution, somewhat akin to Hitler’s “emergency act” in the wake of the Reichstag fire of 1933. It is better known as the Patriot Act I.  Patriot Act I became law six weeks after the fall of the twin towers and was followed by the the Patriot Act II of 2006, the two laws together diminishing constitutional rights to free speech, freedom of association, freedom from illegal search, the right to habeas corpus, prohibition of cruel and unusual punishment, and freedom from the illegal seizure of private property. The First, Fourth, Fifth, Sixth, and Eighth Amendments in the Bill of Rights have all been discarded or abridged in the rush to make it easier to investigate, torture, and jail both foreigners and American citizens. The Patriot Act also incorporates the Financial Anti-Terrorism Act of October 17th, 2001, which permits the freezing of assets and investigation of individuals suspected of being financial supporters of terrorism. “Suspected” is the key word, as there is no oversight or appeal to the process.

The Military Commission Act of 2006 followed the Patriot Acts, creating military tribunals for the trying of “unlawful enemy combatants,” including American citizens. Unlike a civil or criminal court, the accused needs only a two-thirds vote by the commission members present to be convicted. The act permits the indefinite jailing of suspects in a military prison without providing access to a lawyer or charging with a crime. The government is not required to produce any normally admissible evidence at a commission hearing and can rely on hearsay or even on information obtained overseas during torture to make its case. Detainees do not have access to any classified information being used against them and cannot cross examine or even know the identity of witnesses. The MCA suspends habeas corpus for anyone charged and forbids the application of the Geneva Conventions to mitigate conditions of confinement or to challenge the judicial process or verdict. The Geneva Conventions also cannot be invoked if the accused subsequently claims he was tortured or otherwise abused, protecting overly zealous interrogators from later charges of “war crimes.” The act was also designed to cover all cases that were pending, meaning that it was retroactive.

More recently, the United States Attorney General has indicated that he will not prosecute government officials who committed torture under the Bush Administration in spite of Washington being a signatory to international treaties condemning the practice.  The Obama Administration has also declared that it has the right to kill any American citizen anywhere in the world if it suspects that person is involved in supporting terrorism. The sole due process required to carry out the execution is review of a secret dossier by a government lawyer.  The assassination, inevitably in a country with which the US is not at war since Washington is not legally at war with anyone, is carried out by a hellfire missile fired from a drone.  If the target’s family is traveling with him, that is regarded as unavoidable collateral damage.

And the new judicial world order has been given its own defense mechanisms to make it bulletproof.  Challenges to illegal incarceration or denial of constitutional rights are routinely rejected by the courts, concurring with Administration claims of state secrecy to keep both whistleblowers and those detained out of the legal system.  Today, someone can be accused of terrorism support after sending $5 to a charity.  American Muslims who voice their discontent over the internet or phone regarding heavy handed FBI tactics can themselves be targeted, frequently encountering a new friend in the form of a government informant and eventually being talked into committing a “terrorist act.” Their new friend gives them a fake bomb or unusable weapon and they are then arrested and sentenced to twenty years in prison.

The sorry state of American jurisprudence and vanishing liberties under Bush-Obama would rather suggest that the pot not be calling the kettle black, but, alas, the pumped-up-by-hubris elected and appointed leaders in Washington do not know the meaning of the expression “shut up.”  One would think they might be less tone deaf at a time when they are seeking a phony legal formula to arrest WikiLeaks founder Julian Assange, but that would suppose that someone in the federal bureaucracy actually knows what he is doing.

The latest case of foot in mouth involves Russia.  The US media has been reporting critically on the recent conviction in Moscow of Russian oligarch Mikhail Khodorkovsky on charges of embezzlement and money laundering.  Khodorkovsky had earlier been convicted of fraud and tax evasion in 2005 and has been in jail ever since.  The conviction prompted commentary from no less than Hillary Clinton who said it “raises serious questions about selective prosecution – and the rule of law being overshadowed by political considerations” while the White House saw “…due process violations and what appears to be an abusive use of the legal system for improper ends.”  In some accounts there are suggestions that the Administration will block Russian entry into the World Trade Organization to punish Moscow for its failure to establish an “independent judiciary” and a “rule of law.”

Now excuse me, one might well ask why the Clintons and Obamas of this world feel themselves empowered to criticize legal procedures in another country involving a citizen of that country while failing to protect actual American citizens like Rachel Corrie, but it is quite likely a question not worth exploring.  If there is some net gain attainable by antagonizing Russia unnecessarily it is difficult to determine what exactly that might be.  The Clinton/Obama comments also reveal a profound level of ignorance about recent history.  Russia was looted by the so-called oligarchs in the 1990s and Hillary Clinton should be asking how it was that Mikhail Khodorkovsky became one of the richest men in the world in little more than ten years, starting as a salesman for used computer parts.  His business acumen must have been truly remarkable, but he also received more than a little well documented assistance from international organized crime.  The fact is that Khodorkovsky is guilty of all charges and possibly some others to include torture, criminal conspiracy, and homicide and there should be no doubt in anyone’s mind that he stole upwards of $15 billion from the Russian people.  If Clinton and Obama had bothered to check they almost certainly would have discovered a file on Khodorkovsky’s activities about a foot thick at the FBI offices on Pennsylvania Avenue.  Russian leader Vladimir Putin’s move to hold the oligarchs accountable for their crimes, which included multiple murders in addition to massive corruption and fraud, is extremely popular and so it should be.  Most oligarchs have fled to Western Europe or to Israel to avoid prosecution.

So why the sympathy in the media and within government circles for the oligarchs?  Well, it is the usual nonsense.  Hardliners in Washington, many of whom are our good old friendly neocons, need an enemy and Russia was available.  Some have also cleverly woven into their narrative the theme of anti-Semitism, always available when all else fails.  The fact is that most oligarchs and their enablers from the West who looted Russia were Jewish and a number were Israeli citizens.  But they were also criminals.  The two facts are not necessarily congruent, but if apologists for Khodorkovsky can twist reality to make it look as if someone is planning a pogrom, so much the better.  What we are seeing is the usual neocon narrative:  come up with a viable enemy to justify those huge defense budgets and label him an anti-Semite to make the story even more compelling.

Ironically, Hillary Clinton’s own State Department, which interviewed an international observer at the trial, reported that the legal proceedings seemed to be fair.  Russian courts are not US courts but that might actually be an advantage given what we Americans have seen lately.  In one respect at least their judicial system has to be regarded as better:  they no longer have gulags while we Americans have offshore and secret prisons in Guantanamo and elsewhere.  But the real question has to be, why are we again interfering in something that we only dimly understand when we just might leave it alone?  Who named us the Lord High Executioner for the entire world?  It is the ultimate tragedy, what the Greeks would call nemesis, that a nation that once prided itself as a shining city on the hill or as “indispensable” can now be summed up with another word.  That word is “rogue.”

This article was originally published in Antiwar.com

Philip Giraldi, a former CIA Officer, is the Executive Director of the Council for the National Interest. His “Deep Background” column appears every month exclusively in The American Conservative.

Read more by Philip Giraldi


  1. Rexw on the 13. Jan, 2011 remarked #

    Once again, the analysis of the deterioration of law in the US, the erosion of The Constitution with the apathetic approval of the people by default and the questionable interference in matters in another country, show clearly that hypocrisy reigns supreme in the ‘Land of the Knaves’.

    Just the mention by Philip of the Secretary of State for Israel, Clinton, and her intercession for obviously one of her oligarch buddies, Khodorkovsky, immediately gives it the color of graft at some level either for Khodorkovsky himself or for his associates who have now fled to Israel where half of the world’s big time crooks have taken up residence. But that’s OK, they’re our friends and can do no wrong. Probably have a US passport as well. After all, half of Washington and New York probably have two passports.

    The erosion of The Constitution, so well detailed above, now makes it impossible to wave this once great example of writing by great people as a badge of honour, as it used to be years ago. “We are protected by The Constitution” was the cry and it meant something. Alas, even with the passing of Bush from Pennsylvania Avenue, no one has yet said that the actions and amendments created by him and his band of Constitution- killers should be reversed and that’s the way it always is. Lose a human right even by an engineered act like 9/11 and then an Israeli-inspired war on terrorism’ such as Iraq and you never get that right back again. It is like a tax that is imposed on the people by a government which, when routed out of office, never see that tax removed. The excuse is that ‘we didn’t do it. It was what’s-his-name”.

    So it is today. That great hope, Obama, full of polished rhetoric which turned out to be lies, half-truths and hot air has not removed any of the changes made during the feckless reign of Bush and can now lay claim to being as complicit as Bush in the erosion of liberties.

    A hypocrite.

    One only has to look at the continuation of the Afghanistan war, serving no purpose except as a cover for immense drug cropping, the same with Guantanano Bay, still there, the possible continuation of renditions and girding his loins for another Israeli-inspired war with Iran or Pakistan or anyone else who will allow the military-industrial complex to prosper.

    A charlatan. Promised so much and has delivered nothing but reduced taxes for the wealthy, ‘don’t ask don’t tell’ and ratified a rusty old agreement with Russia. What an achievement in two years.I did forget the Health Bill, soon to be overturned.
    How can Americans give respect to such a man.

    Many elections have come and gone since the days of the erosion of civil rights, the misnamed Patriot Act making the creators of such changes, such as Bush and the Machiavellian Cheney take their retirement in very comfortable circumstances, themselves not impacted in any way by the loss of civil liberties. But where are the agitators for a return of the clauses that were acceptable in their country from 1787 until the year of disgrace, 2001.

    But if the people don’t care? Just another open door for the skillful opportunists, insidious fifth columnists and foreign interests to bring down a once great country. Apathy does that.

    ‘We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America’.

    The idea was good, boys. Lasted a long time too, 214 good years. But you forgot the death penalty for anyone trying to screw the American people, such people being thick on the ground in 2011.

  2. D Costa on the 18. Mar, 2011 remarked #

    “Our republic was founded on the principle that the United States would not consume itself in other people’s quarrels. The national saying that appeared on the Fugio cent, the first one penny coin minted by the new republic, was “Mind your business.” But today, a government on steroids is engaged in doing nothing but interfering.

    Iraq was a failure and Afghanistan, perennially “turning the corner,” is about to do the same. A huge and expensive empire fuels poverty and disorientation at home. We trumpet freedom agendas when freedom is on the wane in our own country and judge foreign political parties by standards that they will never meet just so we can say no to them.

    We are so ignorant that we need to commission a report to describe the difference between a secular Turk and a Saudi terrorist yet we insist that we have a right to judge who is acceptable and who is not. An ambassador tells a third world country how to run its banks when our own banks have robbed and pillaged the American public. Everyone hates us and is eagerly waiting for us to leave the world stage.”

    –Writes Philip Giraldi [in his latest article: "A Farewell Address"] who has already given America a “wake up” call. Read Philip Giraldi.

    It is because of people like Philip Giraldi that we know there are still good Americans even in corrupt agencies like the CIA who are not sell outs. We need millions of them. We need them in every branch of our government. We need them in the White House, both houses of congress, as our military leaders, weapon inspectors, ambassadors abroad, police chiefs, sheriffs, top researchers, CEO’s of banks and various businesses. In other words everywhere in our nation as people to lead our country at all levels and these are the people we can trust. They need to replace dual citizens and foreign nationals who are hostile to America and Americans.

    God bless Philip Giraldi and people like him: Defenders of America and its freedom whom we can all trust!

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