Constitutional Law
Jul. 2, 2005
Bush's Injustices Recall Another George: King George III
Forum Column - By Stephen F. Rohde - As we celebrate the Fourth of July, we should recall the injustices that impelled the Founders to write the Declaration of Independence and the injustices still taking place today.
Stephen F. Rohde
Email: rohdevictr@aol.com
Stephen is a retired civil liberties lawyer and contributor to the Los Angeles Review of Books, is author of American Words for Freedom and Freedom of Assembly.
Forum Column
By Stephen F. Rohde
As we celebrate the Fourth of July, we should recall the injustices that impelled the Founders to write the Declaration of Independence and the injustices still taking place today.
The declaration boldly declared that "all men are created equal," yet we know that many of the Founders, including Thomas Jefferson, George Washington and James Madison, owned slaves. We know that the rights of "life, liberty and the pursuit of happiness," were fully enjoyed only by propertied white men and were denied to women, black people, American Indians and the poor.
These contradictions, embedded in the declaration, would not be cured by the Constitution or the Bill of Rights. It would take a bloody Civil War and several amendments to the Constitution to begin to extend these fundamental rights to all of those excluded in 1776.
Yet despite its hypocrisy, the Declaration of Independence is an aspirational document, expressing the ideals of equality and liberty and setting a standard for every leader and every person in this country. The declaration remains little more than a compendium of platitudes, though, unless it is matched by the genuine conviction of every person in America to join in the unfinished task of building a society - building a world - based on peace, tolerance, compassion, equality and justice.
Today, by assaulting civil liberties at home, waging war in Iraq and abusing, torturing and murdering prisoners around the world, the Bush administration has exceeded its powers under the Constitution, ignored the separate and equal powers of Congress and the judiciary and violated personal liberties and human rights. In this time of crisis, it is wise to recall what the Declaration of Independence said and, particularly, its bill of indictment against King George III.
In its oft-repeated words, the document declares that all men (which today we take to mean "all people") are "created equal" and enjoy the "unalienable Rights" to "Life, Liberty, and the Pursuit of Happiness." Less well-known are the words that immediately follow, which declare that governments are instituted "to secure these Rights." That is the first purpose of government; anything that governments do must be judged against that primary purpose.
But it says more. It declares that governments derive "their just Powers from the Consent of the Governed." No power that a government purports to exercise is just unless and until the people have consented to grant that power to the government.
Consequently, governments are not sovereign, detached from the people, free to exercise any and all powers they choose, contrary to the will of the people. This fundamental principle would bear fruit 13 years later in the Constitution and then in the Bill of Rights. It must be reaffirmed today as the Bush administration exercises powers, domestically and internationally, to which neither the people nor their elected representatives have consented.
The Declaration of Independence does not merely declare that the government is subservient to the people, but it announces a revolutionary principle to enforce that fundamental doctrine. "That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government laying its Foundation on such Principles and organizing its Powers in such Form, as to them shall seem most likely to effect their Safety and Happiness."
In 1776, this principle justified independence from Great Britain. Today, it justifies the demand that an administration that has become destructive of life, liberty and the pursuit of happiness and that ignores the consent of the governed must be altered or abolished and replaced by a new administration - one that is true to those ends and that will ensure our safety and happiness.
The Founders understood that a nation based on the consent of the people is entitled to be safe and free. They understood that these are compatible, not irreconcilable, goals. When a government ignores its people, violates their rights, embarks on undeclared wars abroad and disregards international law, inviting violent retaliation and ever widening armed conflict, the people are neither safe nor free.
Today, neither the people nor their elected Congress has declared war on Iraq or any of the 60 countries that the Bush administration has targeted in its endless, global "war on terror." Yet our government went to war under false pretenses, unleashing massive destruction resulting in the deaths of more than 1,700 Americans and tens of thousands Iraqis, and countless wounded.
Many of the injustices and abuses practiced by King George III against the colonies as catalogued in the Declaration of Independence echo down through the ages to our time. The king had "refused his Assent to Laws," and had "dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people" - just as today the Bush administration has ignored the separate constitutional authority of Congress, even as the people yearn for their representatives to break their silence and oppose the invasions on the rights of people here and abroad.
The king had "obstructed the Administration of Justice," "made judges dependent on his Will alone" and deprived the people "of the benefits of trial by Jury," much as the Bush administration, through the USA Patriot Act and other measures, has largely removed the judiciary from monitoring the actions of the executive; closed immigration hearings from public scrutiny; eavesdropped on confidential communications between attorneys and their clients; and detained indefinitely, citizens and noncitizens alike, without charging them with any crimes, without affording them access to legal counsel and without presenting evidence against them at a trial by jury.
The king had "affected to render the Military independent of and superior to the Civil Power," as the Bush administration, without consulting Congress, let alone obtaining its approval, has created military commissions to secretly try noncitizens, without affording them the rights guaranteed by the Constitution, the Uniform Code of Military Justice and international law; has transferred suspects from the civilian criminal justice system into indefinite military incarceration; and has subjected detainees at the U.S. Navy Base at Guantanamo Bay, Cuba, as well as Abu Ghraib, Afghanistan and undisclosed locations around the world to torture and cruel and inhuman treatment.
The king had taken away "our Charters, abolishing our most valuable Laws, and altering fundamentally the Forms of our Governments," much as the Bush administration has taken away or altered the rule of law, the separation of powers, checks and balances, the authority of Congress to declare war, the independence of the judiciary, the right to dissent, the right to associate with others free of government surveillance, the right to public trials, the right to trial by jury, the presumption of innocence, the right to remain silent, the right of habeas corpus and the right of meaningful appeal.
None of this has escaped the attention of those dedicated to peace and justice. At home and abroad, a movement is under way to look into whether President Bush is guilty of impeachable offenses and war crimes.
To date, at least 119 members of Congress - including John Conyers, Barney Frank, Jessie Jackson Jr., Dennis Kucinich, Barbara Lee, John Lewis, Ed Markey, George Miller, Charles Rangel, Bernie Sanders, Hilda Solis, Maxine Waters, Diane Watson, Lynn Woolsey, Brad Sherman, Nancy Pelosi, Henry Waxman and John Dingell - have signed a "resolution of inquiry" calling on the House Judiciary Committee to investigate whether "sufficient grounds exist to impeach George W. Bush," in light of the "considerable evidence" that he "has engaged in a conspiracy to deceive and mislead the United States Congress and the American people as to the basis for taking the nation into war against Iraq;" that he has "manipulated intelligence so as to allege falsely a national security threat posed to the United States by Iraq;" and that he has "committed a felony by submitting a false report to the United States Congress on the reasons for launching a first-strike invasion of Iraq."
Meanwhile, an unofficial World Tribunal on Iraq convened by 200 nongovernmental organizations - including Greenpeace and Center for Constitutional Rights - patterned after the Bertrand Russell War Crimes Tribunal during the Vietnam War, has heard testimony from 54 witnesses, including author Arundhati Roy and international law professor Richard Falk, at hearings held in the past two years in London, New York, Stockholm, Istanbul and elsewhere.
On June 27, 2005, the World Tribunal on Iraq leveled charges of war crimes against the governments of the United States and the United Kingdom for "planning, preparing and waging the supreme crime of a war of aggression in contravention of the United Nations Charter and the Nuremberg Principles; targeting the civilian population of Iraq and civilian infrastructure; using disproportionate force and indiscriminate weapon systems; failing to safeguard the lives of civilians during military activities and during the occupation period thereafter; using deadly violence against peaceful protestors; imposing punishments without charge or trial, including collective punishment; subjecting Iraqi soldiers and civilians to torture and cruel, inhuman, or degrading treatment; rewriting the laws of a country that has been illegally invaded and occupied; willfully devastating the environment; actively creating conditions under which the status of Iraqi women has seriously been degraded; failing to protect humanity's rich archaeological and cultural heritage in Iraq; obstructing the right to information, including the censoring of Iraqi media; [and] redefining torture in violation of international law, to allow use of torture and illegal detentions."
As we observe the Fourth of July, we must measure how far we have strayed from the declaration's vision of equal rights and justice. In the past four years, in the name of defending freedom we have become less free; in the name of protecting constitutional rights, we enjoy fewer of them; in the name of expanding human rights around the world, those rights are at greater risk; and in the name of spreading democracy, we have alienated millions of people who no longer see the United States as the defender of the "great ideal of human freedom" but as an empire that has abandoned that special trust born in 1776.
Stephen Rohde, a constitutional lawyer in Los Angeles, is a member of the steering committee of Interfaith Communities United for Justice and Peace and past president of the Beverly Hills Bar Association and the ACLU of Southern California.
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