[kj] ot - we cross the rubicon

[fluw]

  /Tyrant in the White House/


  Bush Crosses the Rubicon

By PAUL CRAIG ROBERTS

Dictatorships seldom appear full-fledged but emerge piecemeal. When 
Julius Caesar crossed the Rubicon with one Roman legion he broke the 
tradition that protected the civilian government from victorious 
generals and launched the transformation of the Roman Republic into the 
Roman Empire. Fearing that Caesar would become a king, the Senate 
assassinated him. From the civil wars that followed, Caesar's grand 
nephew, Octavian, emerged as the first Roman emperor, Caesar Augustus.

Two thousand years later in Germany, Adolf Hitler's rise to dictator 
from his appointment as chancellor was rapid. Hitler used the Reichstag 
fire to create an atmosphere of crisis. Both the judicial and 
legislative branches of government collapsed, and Hitler's decrees 
became law. The Decree for the Protection of People and State (Feb. 28, 
1933) suspended guarantees of personal liberty and permitted arrest and 
incarceration without trial. The Enabling Act (March 23, 1933) 
transferred legislative power to Hitler, permitting him to decree laws, 
laws moreover that "may deviate from the Constitution."

The dictatorship of the Roman emperors was not based on an ideology. The 
Nazis had an ideology of sorts, but Hitler's dictatorship was largely 
personal and agenda-based. The dictatorship that emerged from the 
Bolshevik Revolution was based in ideology. Lenin declared that the 
Communist Party's dictatorship over the Russian people rests "directly 
on force, not limited by anything, not restricted by any laws, nor any 
absolute rules." Stalin's dictatorship over the Communist Party was 
based on coercion alone, unrestrained by any limitations or inhibitions.

In this first decade of the 21st century the United States regards 
itself as a land of democracy and civil liberty but, in fact, is an 
incipient dictatorship. Ideology plays only a limited role in the 
emerging dictatorship. The demise of American democracy is largely the 
result of historical developments.

Lincoln was the first American tyrant. Lincoln justified his tyranny in 
the name of preserving the Union. His extra-legal, extra-constitutional 
methods were tolerated in order to suppress Northern opposition to 
Lincoln's war against the Southern secession.

The first major lasting assault on the US Constitution's separation of 
powers, which is the basis for our political system, came with the 
response of the Roosevelt administration to the crisis of the Great 
Depression. The New Deal resulted in Congress delegating its legislative 
powers to the executive branch. Today when Congress passes a statute it 
is little more than an authorization for an executive agency to make the 
law by writing the regulations that implement it.

Prior to the New Deal, legislation was tightly written to minimize any 
executive branch interpretation. Only in this way can law be accountable 
to the people. If the executive branch that enforces the law also writes 
the law, "all legislative powers" are no longer vested in elected 
representatives in Congress. The Constitution is violated, and the 
separation of powers is breached.

The principle that power delegated to Congress by the people cannot be 
delegated by Congress to the executive branch is the mainstay of our 
political system. Until President Roosevelt overturned this principle by 
threatening to pack the Supreme Court, the executive branch had no role 
in interpreting the law. As Justice John Marshall Harlan wrote: "That 
congress cannot delegate legislative power to the president is a 
principle universally recognized as vital to the integrity and 
maintenance of the system of government ordained by the Constitution."

Despite seven decades of an imperial presidency that has risen from the 
New Deal's breach of the separation of powers, Republican attorneys, who 
constitute the membership of the quarter-century-old Federalist Society, 
the candidate group for Republican nominees to federal judgeships, write 
tracts about the Imperial Congress and the Imperial Judiciary that are 
briefs for concentrating more power in the executive. Federalist Society 
members pretend that Congress and the Judiciary have stolen all the 
power and run away with it.

The Republican interest in strengthening executive power has its origin 
in agenda frustration from the constraints placed on Republican 
administrations by Democratic congresses. The thrust to enlarge the 
President's powers predates the Bush administration but is being 
furthered to a dangerous extent during Bush's second term. The 
confirmation of Bush's nominee, Samuel Alito, a member of the Federalist 
Society, to the Supreme Court will provide five votes in favor of 
enlarged presidential powers.

President Bush has used "signing statements" hundreds of times to 
vitiate the meaning of statutes passed by Congress. In effect, Bush is 
vetoing the bills he signs into law by asserting unilateral authority as 
commander-in-chief to bypass or set aside the laws he signs. For 
example, Bush has asserted that he has the power to ignore the McCain 
amendment against torture, to ignore the law that requires a warrant to 
spy on Americans, to ignore the prohibition against indefinite detention 
without charges or trial, and to ignore the Geneva Conventions to which 
the US is signatory.

In effect, Bush is asserting the powers that accrued to Hitler in 1933. 
His Federalist Society apologists and Department of Justice appointees 
claim that President Bush has the same power to interpret the 
Constitution as the Supreme Court. An Alito Court is likely to agree 
with this false claim.

This is the great issue that is before the country. But it is pushed 
into the background by political battles over abortion and homosexual 
rights. Many people fighting to strengthen the executive think they are 
fighting against legitimizing sodomy and murder in the womb. They are 
unaware that the real issue is that America is on the verge of elevating 
its president above the law.

Bush Justice Department official and Berkeley law professor John Yoo 
argues that no law can restrict the president in his role as 
commander-in-chief. Thus, once the president is at war--even a vague 
open-ended "war on terror"--Bush's Justice Department says the president 
is free to undertake any action in pursuit of war, including the torture 
of children and indefinite detention of American citizens.

The commander-in-chief role is probably sufficiently elastic to expand 
to any crisis, whether real or fabricated. Thus has the US arrived at 
the verge of dictatorship.

This development has little to do with Bush, who is unlikely to be aware 
that the Constitution is experiencing its final rending on his watch. 
America's descent into dictatorship is the result of historical 
developments and of old political battles dating back to President Nixon 
being driven from office by a Democratic Congress.

There is today no constitutional party. Both political parties, most 
constitutional lawyers, and the bar associations are willing to set 
aside the Constitution whenever it interferes with their agendas. 
Americans have forgotten the prerequisites for freedom, and those 
pursuing power have forgotten what it means when it falls into other 
hands. Americans are very close to losing their constitutional system 
and civil liberties. It is paradoxical that American democracy is the 
likely casualty of a "war on terror" that is being justified in the name 
of the expansion of democracy.

*Paul Craig Roberts* has held a number of academic appointments and has 
contributed to numerous scholarly publications. He served as Assistant 
Secretary of the Treasury in the Reagan administration. His graduate 
economics education was at the University of Virginia, the University of 
California at Berkeley, and Oxford University. He is coauthor of The 
Tyranny of Good Intentions 
<http://www.amazon.com/exec/obidos/ASIN/076152553X/counterpunchmaga>. He 
can be reached at: paulcraigroberts at yahoo.com 
<mailto:paulcraigroberts at yahoo.com>
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