One of the most read pieces on this blog in the last week is Eli Zaretsky’s “Proto-Fascist Elements in America Today.” It’s a powerful piece, and I disagree with it only in two regards: I don’t think the problem is particularly American, and I don’t think it’s about fascism. Zaretsky’s concerns certainly apply as much to Canada and the UK as they do to the US. And the core of what is wrong with what is happening in these countries isn’t a potential slide into proto-fascism, it’s that what is making that possible is the destruction of the legal protections that were once taken for granted.

Paul Craig Roberts, in CounterPunch, cuts to the heart of the issue:

The greatest human achievement is the subordination of government to law. This was an English achievement that required eight centuries of struggle, beginning in the ninth century when King Alfred the Great codified the common law, moving forward with the Magna Carta in the thirteenth century and culminating with the Glorious Revolution in the late seventeenth century.
The success of this long struggle made law a shield of the people. As an English colony, America inherited this unique achievement that made English speaking peoples the most free in the world. In the first decade of the twenty-first century, this achievement was lost in the United States and, perhaps, in England as well.

It is this willful and demonstrable loss of the protection of law that is the core of what is wrong with what is happening in the West today.

It is always easier for governments to operate outside of the law, and given the addictive desire for power that one has to have to become the head of a state perhaps it’s not surprising that once in power leaders want more of it. What is surprising is how easily the public lets them feed their habits at our cost. In Canada, Prime Minister Stephen Harper has suspended parliament for three months, ostensibly to allow him time to calibrate his economic plan, more likely to stop an increasingly focused inquiry into his government’s complicity in the torture of Afghan prisoners. His Citizenship Minister, Jason Kenny, cheerily explained to the press that they can get get a lot more done when parliament isn’t in session, which is probably true. It’s what they’re getting done, and why elected representatives aren’t allowed to see it that is of concern to Canadians.

Chris Floyd, in “Empire Burlesque” focuses on how the fear of terrorism is used to suspend, or “modify” the law. Here’s an excerpt from his “High Crimes and Low Comedy in the American Imperium” blog:

It is often forgotten how “legal” the Nazi regime in Germany really was. It did not take power in a violent revolution, but entered government through the entirely “legal” procedures of the time….Naturally, in such unusual and perilous circumstances, jurists were inclined to give the widest possible lee-way to the war powers of the state. After all, as one prominent judge declared, the war had pushed the nation “past the leading edge of a new and frightening paradigm, one that demands new rules be written. War is a challenge to law, and the law must adjust.”
– No, wait. I must apologize for my mistake. That last quote was not, in fact, from a German jurist during the Nazi regime, but from a ruling issued this week by the United States Court of Appeals for the District of Columbia Circuit — one of the highest courts in the land. The quoted opinion — written by the legally appointed Judge Janice Rogers Brown — was part of a sweeping ruling that greatly magnified the powers of the government to seize foreigners and hold them indefinitely without charges or legal appeal….
But the eminent judges did not stop there in their entirely “legal” ruling. As the New York Times reports, they went on to declare that “the presidential war power to detain those suspected of terrorism is not limited even by international law of war.” And later: “the majority’s argument [is] that the president’s war powers are not bound by the international laws of war.”

Think of that. Let it sink in. The president’s war powers cannot be constrained by the international laws of war. Whatever the Leader (no points for translating this term into German) decides to do in the course of a war is thus rendered entirely “legal.” He cannot be accused of international war crimes because such things do not apply to him.

In England, the inquiry into the death of Dr David Kelly has reached a conclusion. But what it is we will never know, because we’ll all be dead first. Dr Kelly, you may remember, was the UN weapons inspector who blew the whistle on Tony Blair’s claim that Saddam Hussein had weapons of mass destruction. He was found dead, and the government claimed he had committed suicide. A number of doctors claimed that the evidence of this was medically impossible and petitioned to see the post-mortem records. But what they were told is this :

Vital evidence which could solve the mystery of the death of Government weapons inspector Dr David Kelly will be kept under wraps for up to 70 years. In a draconian — and highly unusual — order, Lord Hutton, the peer who chaired the controversial inquiry into the Dr Kelly scandal, has secretly barred the release of all medical records, including the results of the post mortem, and unpublished evidence….

Curiously, this has not put the rumours that he was murdered to rest, though I can’t imagine why not.

The extent to which these governments have destroyed the meaning of innocence and guilt is highlighted by Andrew Sullivan in his “Email of the Year” on his blog, the Daily Dish:

The conclusion drawn by each of my colleagues — some of whom are liberal Democrats, some of whom are conservative, law-and-order Republicans — is, to a person, that the detention and interrogation programs the United States implemented in the months and years following 9/11 is not only a complete abrogation and violation of international law and, in many cases, federal law — it is also fundamentally immoral…. I am surprised you did not highlight what me and my colleagues agreed was the single most horrifying passage from the Court’s decision. It was the Court’s quotation of something an interrogator said to al-Rabiah during his interrogation. The interrogator told al-Rabiah: “There is nothing against you. But there is no innocent person here. So, you should confess to something so you can be charged and sentenced and serve your sentence and then go back to your family and country, because you will not leave this place innocent.” This was an agent of the United States saying this.

The Paul Craig Roberts article quoted earlier concludes with the depressing statistic that ‘a McClatchy-Ipsos poll found that 51 percent of Americans agree that “it is necessary to give up some civil liberties in order to make the country safe from terrorism.”‘ He concludes by reminding us of Franklin’s pithy observation that “Any society that would give up a little liberty to gain a little security will deserve neither and lose both.”

So are we irrevocably doomed? Perhaps not. In Canada, a Facebook page that protested the proroguing of parliament gained 200,000 members and organized a country wide demonstration that pulled over 25,000 demonstrators out on a January winter day. As Murray Dobbin observes:

Stephen Harper has reaped a whirlwind of protest for his shutting down of Parliament. …Perhaps this cynical prorogation was the straw that broke the camel’s back. After four years of countless examples of running roughshod over democratic traditions and principles, Canadians, who are slow to anger, have said enough.

In the United States, Juan Cole wrote a wonderful column on Martin Luther King Day, in which he said

We honor today a man who repeatedly broke the law. Who conspired to break the law. Who put tens of thousands of people up to breaking the law. He broke the law while adhering to the principle of active non-violence, of loving the jailer and winning over the persecutor. He broke laws that he saw as unjust and unconstitutional, and over time he redefined them as illegitimate by his passionate advocacy.

We honor a man from a different age, when Americans seemed to care about social injustice enough to come out into the streets and risk police dogs, tear gas, and imprisonment. When depression came from being unable to ensure that no American child went to bed hungry, not from being unable to stay in Avatar-world.

And the blog at-Largely connects the dots pretty clearly as regards Dr. Kelly:

It is very simple. If Dr. Kelly committed suicide, then his medical records should not be sealed as there is no reason to seal them. If, however, Dr. Kelly was murdered, then the sealing of the medical records only adds more weight to what most reasonable people already suspect actually happened.

Marshall McLuhan, the Canadian media guru of the 70’s once said, “There is absolutely no inevitability as long as there is a willingness to contemplate what is happening.” Therein lies our hope, that out of these increasingly tattered threads we can once again weave the cloth of a judicial system that protects everyone.

Insh’Allah.