Thom Hartmann: First They Came for the Terrorists…


Richard Moore


 First They Came for the Terrorists... 

By Thom Hartmann 

Monday 10 January 2005 

The Gonzales confirmation is not just about the torture memos.
It's much bigger than that.

If Bush continues to roll back human and civil rights - and
the installation of Alberto Gonzalez as America's chief law
enforcement officer is very much a part of his campaign to do
so - we may be facing a "Pastor Niemöller moment" sooner than
most of us could have imagined.

Tuesday, January 10, 2005, is the third anniversary of the
opening of America's first concentration camp since Japanese
Americans were shamefully interred during WWII. Since the
first Guantánamo camp was opened, the Bush administration has
built additional concentration camps - the latest known as
Camp Five - in Cuba, and is asking Congress for $29 million to
build concentration Camp Six.

These concentration camps detain uncharged, untried,
unconvicted individuals, who may be held for the rest of their
lives because, as the UK's Guardian newspaper noted on January
5th of this year, the Bush administration "lacks proof" that
they are either criminals or POWs.

This is one of the more visible parts of a much larger
campaign the Bush administration has embarked on to reverse
not only 229 years of the American rule of law regarding the
rights of average citizens, but nearly eight centuries of
human rights that go back to an epic moment in 1215 on a
meadow by the River Thames.

The modern institution of civil and human rights, and
particularly the writ of habeas corpus, began in June of 1215
when King John was forced by the feudal lords to sign the
Magna Carta at Runnymede. Although that document mostly
protected "freemen" - what were then known as feudal lords or
barons, and today known as CEOs and millionaires - rather than
the average person, it initiated a series of events that echo
to this day.

Two of the most critical parts of the Magna Carta were
articles 38 and 39, which established the foundation for what
is now known as "habeas corpus" laws (literally, "produce the
body" from the Latin - meaning, broadly, "let this person go
free"), as well as the Fourth through Eighth Amendments of our
Constitution and hundreds of other federal and state due
process provisions.

Articles 38 and 39 of the Magna Carta said: 

            "38 In future no official shall place a man on trial upon his
            own unsupported statement, without producing credible
            witnesses to the truth of it.
            "39 No free man shall be seized or imprisoned, or stripped of
            his rights or possessions, or outlawed or exiled, or deprived
            of his standing in any other way, nor will we proceed with
            force against him, or send others to do so, except by the
            lawful judgment of his equals or by the law of the land."

This was radical stuff, and over the next four hundred years
average people increasingly wanted for themselves these same
protections from the abuse of the power of government or great
wealth. But from 1215 to 1628, outside of the privileges
enjoyed by the feudal lords, the average person could be
arrested and imprisoned at the whim of the king with no
recourse to the courts.

Then, in 1627, King Charles I overstepped, and the people
snapped. Charles I threw into jail five knights in a tax
disagreement, and the knights sued the King, asserting their
habeas corpus right to be free or on bail unless convicted of
a crime.

King Charles I, in response, invoked his right to simply
imprison anybody he wanted (other than the rich), anytime he
wanted, as he said, "per speciale Mandatum Domini Regis."

This is essentially the same argument that George W. Bush
makes today for why he has the right to detain both citizens
and non-citizens solely on his own say-so: because he's in
charge. And it's an argument supported by Alberto Gonzales.

But just as George's decree is meeting resistance, Charles'
decree wasn't well received. The result of his overt assault
on the rights of citizens led to a sort of revolt in the
British Parliament, producing the 1628 "Petition of Right"
law, an early version of our Fourth through Eighth Amendments,
which restated Articles 38 and 39 of the Magna Carta and added
that "writs of habeas corpus, [are] there to undergo and
receive [only] as the court should order." It was later
strengthened with the "Habeas Corpus Act of 1640" and a second
"Habeas Corpus Act of 1679."

Thus, the right to suspend habeas corpus no longer was held by
the King. It was exercised solely by the people's (elected and
hereditary) representatives in the Parliament.

The third George to govern the United Kingdom confronted this
in 1815 when he came into possession of Napoleon Bonaparte.
But the British laws were so explicit that everybody was
entitled to habeas corpus - even people who were not British
citizens - that when Napoleon surrendered on the deck of the
British flagship Bellerophon after the battle of Waterloo in
1815, the British Parliament had to pass a law ("An Act For
The More Effectually Detaining In Custody Napoleon Bonaparte")
to suspend habeas corpus so King George III could legally
continue to hold him prisoner (and then legally exile him to a
British fortification on a distant island).

Ironically, the third George to govern the United States now
says, 190 years later, that unlike England's George III, he
does not need an act of Congress to detain people or exile
them to camps on a distant island.

To facilitate this, our Third George, and his able counselor
Judge Gonzales, have brought forth new "legal" terms - "enemy
combatant" and "terrorist" - and invented a new set of law and
rights (or non-laws and non-rights) for people they label as

It's a virtual repeat of Charles I's doctrine that a nation's
ruler may do whatever he wants because he's the one in charge
- "per speciale Mandatum Domini Regis."

Interestingly, the United States Constitution does provide for
special exceptions to the involuntary detention of persons -
it is legal to suspend habeas corpus. But the Constitution
says it can only be done by Congress, not by the President.

Article I of the Constitution outlines the powers and limits
of the Legislative Branch of government (Article 2 lays out
the Executive Branch, and Article 3 defines the Judicial
Branch). In Section 9, Clause 2 of Article I, the Constitution
says of the Legislative branch's authority: "The Privilege of
the Writ of Habeas Corpus shall not be suspended, unless when
in Cases of Rebellion or Invasion the public Safety may
require it."

Abraham Lincoln was well aware of this during the Civil War,
and was the first president to successfully ask Congress (on
March 3, 1863) to suspend habeas corpus so he could imprison
those he considered a threat until the war was over. Congress
invoked this power again during Reconstruction when President
Grant requested The Ku Klux Klan Act in 1871 to put down a
rebellion in South Carolina.

But President George W. Bush has not asked Congress for, and
has not been granted, a suspension of habeas corpus for his
so-called "war on terrorism," a "war" which he and his
advisors have implied may last well beyond our lifetimes.

Nonetheless, our President, with consent of his Counsel Mr.
Gonzales, has locked people up, "per speciale Mandatum Domini
Regis." Some of their names are familiar to us - U.S. citizens
Jose Padilla and Yaser Hamdi, for example - but there are
hundreds whose names we are not even allowed to know. Perhaps
thousands. It's a state secret, after all. Per speciale
Mandatum Domini Regis.

But how do we deal with people who want to kill us, to destroy
our nation, to terrorize us?

Every president from George Washington to Bill Clinton has
understood that there are two categories of people who can be
incarcerated legally - Prisoners of War and criminals. The
former have rights under both U.S. law and the Geneva
Conventions, and the latter under the U.S. Constitution.

These two categories encompass every possible actual threat to
a nation and its people, and have withstood the test of time
from the days of King John to today.

For example, when Bill Clinton was confronted with a heinous
act of terrorism within the United States - the bombing of the
Federal Building in Oklahoma City - he didn't declare a "war"
on whoever the terrorist may be, or suspend habeas corpus.
Instead, he immediately defined the perpetrators as thugs and
criminals, and brought the full weight of the American and
international criminal justice system to bear, capturing
Timothy McVeigh and using Interpol to search the world for
possible McVeigh allies. Justice was served, the victims
achieved closure, and our rights were left largely intact.

But, just as Hitler and his close advisors used the burning of
the Reichstag building to declare a perpetual "war on
terrorism," and then moved to suspend habeas corpus and other
rights, so too have George W. Bush and Alberto Gonzales.

The Founders must be turning in their graves. Clearly they
never imagined such a thing in their wildest dreams. As
Alexander Hamilton - arguably the most conservative of the
Founders - wrote in Federalist 84:

            "The establishment of the writ of habeas corpus ... are
            perhaps greater securities to liberty and republicanism than
            any it [the Constitution] contains. ...[T]he practice of
            arbitrary imprisonments have been, in all ages, the favorite
            and most formidable instruments of tyranny. The observations
            of the judicious [British 18th century legal scholar]
            Blackstone, in reference to the latter, are well worthy of
            "'To bereave a man of life,' says he, 'or by violence to
            confiscate his estate, without accusation or trial, would be
            so gross and notorious an act of despotism, as must at once
            convey the alarm of tyranny throughout the whole nation; but
            confinement of the person, by secretly hurrying him to jail,
            where his sufferings are unknown or forgotten, is a less
            public, a less striking, and therefore A MORE DANGEROUS ENGINE
            of arbitrary government."' [Capitals all Hamilton's from the

While the sexy stuff that members of Congress and the news
media want to talk about when they question Alberto Gonzales
is torture - after all, the pictures are now iconic and have
worldwide distribution - the torture of these and other
prisoners in U.S. custody is really a subset of a larger

The bigger question here is whether George W. Bush has the
right to ignore the U.S. Constitution and international
treaties, violate human rights and civil liberties, promote
"preemptive" wars, and build concentration camps for the
permanent imprisonment of untried and unconvicted individuals
- all simply because he says he can, per speciale Mandatum
Domini Regis . And whether we want the chief law enforcement
officer of the land, the man who would be charged with
prosecuting Bush or those in his administration who may break
the law, to be a man who agrees that Bush stands above the law
and the Constitution.

The question, ultimately, is whether our nation will continue
to stand for the values upon which it was founded.

Early American conservatives suggested that democracy was so
ultimately weak it couldn't withstand the assault of newspaper
editors and citizens who spoke out against it, or terrorists
from the Islamic Barbary Coast, leading John Adams to pass
America's first PATRIOT Act-like laws, the Alien and Sedition
Acts of 1798. President Thomas Jefferson rebuked those who
wanted America ruled by an iron-handed presidency that could -
as Adams had - throw people in jail for "crimes" such as
speaking political opinion, or without constitutional due

            "I know, indeed," Jefferson said in his first inaugural
            address on March 4, 1801, "that some honest men fear that a
            republican government cannot be strong; that this government
            is not strong enough.

            "But would the honest patriot," he continued, "in the full
            tide of successful experiment, abandon a government which has
            so far kept us free and firm, on the theoretic and visionary
            fear that this government, the world's best hope, may by
            possibility want energy to preserve itself? I trust not.
            "I believe this, on the contrary, the strongest government on
            earth. I believe it is the only one where every man, at the
            call of the laws, would fly to the standard of the law, and
            would meet invasions of the public order as his own personal
            The sum of this, Jefferson said, was found in "freedom of
            person under the protection of the habeas corpus; and trial by
            juries impartially selected. These principles form the bright
            constellation which has gone before us, and guided our steps
            through an age of revolution and reformation.
            "The wisdom of our sages and the blood of our heroes have been
            devoted to their attainment. They should be the creed of our
            political faith, the text of civil instruction, the touchstone
            by which to try the services of those we trust; and should we
            wander from them in moments of error or alarm, let us hasten
            to retrace our steps and to regain the road which alone leads
            to peace, liberty, and safety."

Modern conservatives still revere Burke and Adams and sneer at
Jefferson, but many are nonetheless alarmed by Bush's
unprecedented attack on the Constitution. As Russell Kirk
wrote in his seminal 1953 book "The Conservative Mind" - the
book which inspired a generation of conservatives from Buckley
to Goldwater - a "New Society," abandoning the traditional
values of America, could easily come into being if "radicals"
such as Bush were to take over our government and discard the

This New Society, Kirk wrote in his chapter "The Promise of
Conservatism," would be dominated by "the gratification of a
lust for power and the destruction of all ancient political
institutions in the interest of the new dominant elites. The
great Plan requires that the public be kept constantly in an
emotional state closely resembling that of a nation at war;
this lacking, obedience and co-operation shrivel..." Kirk adds
that "Big Brother remains to show the donkey the stick instead
of the carrot."

When I was working in Russia some years ago, a friend in
Kaliningrad told me a perhaps apocryphal story about Nikita
Khrushchev, who, following Stalin's death, gave a speech to
the Politburo denouncing Stalin's policies. A few minutes into
Khrushchev's diatribe, somebody shouted out, "Why didn't you
challenge him then, the way you are now?"

The room fell silent, as Khrushchev angrily swept the audience
with his glare. "Who said that?" he asked in a reasoned voice.

"Who said that?" Khrushchev demanded, leaning forward.

Pounding his fist on the podium to accent each word, he
screamed, "Who - said - that?" Still no answer.

Finally, after a long and strained silence, the elected
politicians in the room fearful to even cough, a corner of
Khrushchev's mouth lifted into a smile.

"Now you know," he said with a chuckle, "why I did not speak
up against Stalin when I sat where you now sit."

The question for our day is who will speak up against George
W. Bush and his Stalinist policies? Who will speak against the
man who punishes reporters and news organizations by cutting
off their access; who punishes politicians by targeting them
in their home districts; who punishes truth-tellers in the
Executive branch by character assassination that even extends
to destroying their spouse's careers?

Oddly, so far it's only been Justice Antonin Scalia, a man
with whom I often strongly disagree . Scalia wrote in his
minority dissent in the case of Hamdi v. Rumsfeld that the
President does not have the power to suspend habeas corpus by
executive decree. Instead, he wrote: "If civil rights are to
be curtailed during wartime, it must be done openly and
democratically, as the Constitution requires..."

Scalia went on to quote Alexander Hamilton from Federalist
Number 8, who noted that:

            "The violent destruction of life and property incident to war;
            the continual effort and alarm attendant on a state of
            continual danger, will compel nations the most attached to
            liberty, to resort for repose and security to institutions
            which have a tendency to destroy their civil and political
            rights. To be more safe, they, at length, become willing to
            run the risk of being less free."

            "The Founders warned us about the risk," Scalia noted in his
            Hamdi dissent, "and equipped us with a Constitution designed
            to deal with it.
            "Many think it not only inevitable but entirely proper that
            liberty give way to security in times of national crisis..."
            but, Scalia added, "that view has no place in the
            interpretation and application of a Constitution designed
            precisely to confront war and, in a manner that accords with
            democratic principles, to accommodate it."

How ironic that Justice Scalia was willing to stand up to
George W. Bush and Alberto Gonzales, but most of the Senate
Democrats won't.

The Democrats in Congress say they're going to confirm Judge
Gonzales and "keep their powder dry" for future, larger
battles like Supreme Court nominations. But as Pastor
Niemöller reminds us, the loss of liberty is incremental, not
sudden and dramatic.

One either totally stands for republican democracy, the
Constitution, and the rule of law in our republic, or one
doesn't. Gonzales has shown that he does not, both by his
prevarication in his confirmation hearings, his actions in
condoning Bush's illegal suspension of habeas corpus and
PATRIOT Act abuses of constitutionally-protected civil and
human rights, and his support of other Bush decrees implicitly
per speciale Mandatum Domini Regis.

To quote Scalia's summary in the Hamdi case, "Because the
Court has proceeded to meet the current emergency in a manner
the Constitution does not envision [by letting the President
suspend habeas corpus], I respectfully dissent."

But is dissent enough?

Or must we work for a wholesale change in our representatives,
demanding that they either stand up for the principles for
which so many Americans have fought and died, or leave the
political arena altogether?

Where are the true democrats among the Democrats? (Or, for
that matter, the true republicans among the Republicans?) Have
they all lost their voices?

First Bush and Gonzales came for the terrorists, but I was not
a terrorist, so I did not speak out. Then they came for the
enemy combatants, but I was not a combatant, so I did not
object. Then they came for the protestors resisting "free
speech zones" near Bush campaign rallies, but I was not a
protestor and so I only voiced my unease.

If we - and our elected representatives - do not speak out
now, loudly and forcefully, it may not be long before they
come for the rest of us.


Thom Hartmann (•••@••.•••) is a Project Censored
Award-winning best-selling author and host of a nationally
syndicated daily progressive talk show
His most recent books include "The Last Hours of Ancient
Sunlight," "The Prophet's Way," "Unequal Protection," "We The
People," "The Edison Gene," and "What Would Jefferson Do?"

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