Why do Neoconservatives hate the Constitution and the rule of law?

Posted by AzBlueMeanie:

The modern Republican Party is not your father’s GOP.  There was a time when the civil libertarian wing of the old Republican Party staunchly defended the civil liberties guaranteed in the Bill of Rights.  And they firmly believed that not even a President of the United States was above the rule of law and the constraints on government power imposed by the U.S. Constitution. 

No longer.  Traditional Republicans have been turned out of the party by the radical Neoconservatives.

I remember when Arizona’s own Senator Barry Goldwater and Congressman John Rhodes walked to the White House to tell President Richard M. Nixon that he no longer had the support of Congress and he should resign.  They firmly believed in the Constitution and the rule of law.  But where are these Republican defenders of the Constitution and the rule of law today? 

Today’s Republican Party views the Constitution and the rule of law as an inconvenience and impediment to executive power.  That is precisely what the Founding Fathers intended.  They had just fought a revolution against the tyrant King George III.

Today’s Republican Party, led by Senator John McCain, express contempt for the U.S. Supreme Court for its decision in Boumediene v. Bush and Al Odah v. U.S., affirming that the ancient writ of habeas corpus is a fundamental right guaranteed by the U.S. Constitution. McCain stated "These are people who are not citizens. They do not and never have been given the rights that citizens in this country have." (Actually, senator, some of the prisoners at Guantanamo are American citizens).

McCain apparently believes that only U.S. citizens have rights presumably "given" to them by the government.  To the contrary, the rights and liberties recognized in the Constitution and the Bill of Rights are natural rights possessed by man.  Rights are not "given" by any government, but people "are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed." (Declaration of Independence).  You know, that whole "democracy is on the march" thing George W. Bush used to talk about.

The writ of habeas corpus had its origins in the Magna Carta which was forced upon the tyrant King John by the Barons of England at Runnymeade in 1215.  The Magna Carta was the first document forced onto an English King by his subjects in an attempt to limit his powers by law.  It required the King to renounce certain rights, respect certain legal procedures and accept that his will could be bound by the law. It explicitly protected certain rights of the King’s subjects, most notably the writ of habeas corpus, allowing appeal against unlawful imprisonment.  The writ of habeas corpus has historically been an instrument for the safeguarding of individual freedom against arbitrary government action.

The Magna Carta was the most significant early influence on the historical process that led to the rule of constitutional law today.  it influenced the development of the Anglo-American common law, and our own Constitution.

When the American colonies became a constitutional Republic in which the people are the sovereign ("We the People of these United States…"), any person, in the name of the people, acquired authority to initiate such writs.  The due process for such petitions incorporates the presumption of non-authority. The official who is the respondent has the burden to prove his authority to do or not do something. Failing this, the court must decide for the petitioner.

The U.S. Constitution expressly recognized the English common law procedure of habeas corpus in the Suspension Clause in Article 1, Section 9, strictly limiting the power of the government to suspend the right only under extraordinary circumstances:

"The privilege of the writ of habeas corpus shall not be suspended, unless when in case of rebellion or invasion, the public safety may require it."

Further, the U.S. Supreme Court ruled in the case of Yick Wo v. Hopkins (1886) that:

"The guarantees of protection contained in the Fourteenth Amendment of the Constitution extend to all persons within the territorial jurisdiction of the United States, without regard to differences of race, of color, or of nationality."

Non-citizens within the territorial jurisdiction of the United States are thus afforded due process under the Constitution and our rule of law, because the United States is a nation of laws, not a transitory set of edicts issued at the whim of a malicious tyrant.

Now you may say "But wait – what about the U.S. Supreme Court decision in Ex Parte Quirin?" in which the court held that Nazi saboteurs could be denied habeas corpus and tried by a military commission, stating that:

"…the law of war draws a distinction between the armed forces and the peaceful populations of belligerent nations and also between those who are lawful and unlawful combatants. Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful."

This opinion is distinguishable on the grounds that it was decided upon the law of war during the exigency of World War II, and did not turn upon interpretation of the U.S. Constitution.  This was the same court which upheld the internment of Japanese-American citizens in concentration camps (including here in Arizona) during the exigency of World War II in Korematsu v. United States (1944), a decision which even uber-conservative columnist George Will ranks among the worst decisions of the U.S. Supreme Court. George F. Will – Contempt Of Courts – washingtonpost.com

As Mr. Will correctly notes about the Boumediene decision, "None [prisoners] will be released by the court’s decision, which does not even guarantee a right to a hearing. Rather, it guarantees only a right to request a hearing. Courts retain considerable discretion regarding such requests."  And courts in their discretion may deny such requests.

Only the most despotic nations of the world do not have a writ of habeas corpus or similar judicial procedure.  Do Americans really want to emulate the most despotic nations of the world?

What exactly are the radical Neoconservatives frothing at the mouth over?  Why the dire predictions that "we will lose an American city" simply because a prisoner may now file a writ of habeas corpus, as Neoconservative acolyte Newt Gingrich stated?  (I would submit to you that if America suffers another terrorist attack, it will be due to the gross incompetence of this administration and our intelligence agencies, as it was on 9/11, not because of a pleading filed by a prisoner – likely under  court seal). 

Could it be that all this hysterical hyperventilating by radical Neoconservatives is really not about the writ of habeas corpus at all, but rather something much more near and dear to their malignant hearts?  (Read on)

Despite the limited nature of the holding in Boumediene, John McCain and the other stooges, Senators Lindsey Graham and Joseph Lieberman (left), announced that they will seek to "mitigate" the court’s ruling by limiting the ancient writ of habeas corpus, either through legislation or even an amendment to the U.S. Constitution.  Their contempt for the ancient Anglo-American writ of habeas corpus and constitutional due process ought to frighten Americans. 

Far more frightening is that there are now four Justices serving on the U.S. Supreme Court who are committed to radical Neoconservative ideology, in disregard of their oath of office to "faithfully and impartially discharge and perform all the duties incumbent upon me as [Justice] under the Constitution and laws of the United States."

Congress has also abdicated its constitutional powers and prerogatives to the executive branch in violation of its oath of office to "support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same."

What really is at issue here is the "unitary executive theory," otherwise known as the "imperial presidency."

According to the "unitary executive theory" (as defined by members of the Bush administration) Neoconservative acolytes like John Yoo, formerly with the U.S. Justice Department’s Office of Legal Counsel, and David Addington, formerly legal counsel to Vice President Dick Cheney and currently his chief of staff, theorize that:

During a time of war or national emergency, the president as commander-in-chief possesses inherent "implied" powers not expressly enumerated in the Constitution which permit the president by executive order to suspend provisions of the Constitution and the Bill of Rights, to disregard laws enacted by Congress and U.S. treaty obligations (such as the Geneva Conventions), and to prevent any judicial review of his orders by assertion of a "state secrets privilege," all in the name of defending the nation and the American people in a time of war (of his choosing and duration).  By natural extension of this theory, one may argue that the president possesses the inherent "implied" power to declare the U.S. Constitution and the laws of the United States void, and to unify all powers delegated by the Constitution to the other co-equal branches of government or reserved to the people as the sovereign  of the United States unto himself within the executive branch.

This is a complete rejection of the founding principles upon which this Republic was established.

It is a prescription for tyranny and despotism.  It is an ideology both alien to our American form of government and our history, and is without any support in Anglo-American common law or constitutional precedents. 

And yet the Bush administration has aggressively pursued this radical Neoconservative ideology to justify everything from the USA Patriot Act ("sneak peeks" and warrantless searches), illegal eavesdropping on the electronic communications of American citizens, presidential signing statements which exempt the executive from complying with laws enacted by Congress, broadly expanding executive privilege (asserted on a question-by-question basis) into a blanket refusal to even appear before Congress or the courts, broadly expanding the "state secrets privilege" into an absolute immunity doctrine, etc.

And in the case of the execution of the war on terrorism, Bush deemed himself to be "the decider" as to who will be classified a lawful or unlawful combatant, authorized "enhanced interrogation" (deemed torture under U.S. and international law), suspended provisions of the Geneva Conventions, abrogated treaties, authorized CIA "black site" Gulag-style prisons and "extraordinary rendition" of prisoners to these prisons for enhanced interrogation.  Prisoners are held without charges or arraignment before a judge, without the right to consult legal counsel, without the right to confront adverse witnesses or even to examine the prosecutor’s evidence against them, and they may be held indefinitely without trial or even the right to habeas corpus.

This un-American political ideology is remarkably similar to the authoritarianism of the Stalinist Soviet Union.  Do Americans really want to emulate the despotism of the Stalinist Soviet Union?  Yet this radical Neoconservative ideology is widely defended among many in academia, the media, the military, the judiciary and particularly among Republican politicians in government. 

This un-American political ideology has insinuated itself into the very language of our American politics.  It seeks to transform the U.S. Constitution and our laws by simply redefining terms in language more susceptible to authoritarian interpretation.  It is the "doublespeak" of George Orwell’s "1984" realized.

Americans have witnessed sedition against the U.S. Constitution by the radical Neoconservatives who have gained access to the levers of power and who seek to transform the United States into something unimaginable to the Founding Fathers – and to the vast majority of Americans living today.

Americans have a stark choice to make in this election to decide the fate of the Republic:

We can restore our Constitution and the rule of law, renew our commitment to this nation’s long-cherished traditions and values, and give rebirth to our commitment to American democracy;

Or we can allow the Neoconservatives, who sneer at these "quaint" notions, to continue to redefine America into their sinister vision and disappear into that dark night of tyranny and despotism.

This election is a battle for the very soul of America.