The Law, Like Terrorism, is "Whatever We Say It Is"

by By Bob Avakian

Revolutionary Worker #1151, May 19, 2002, posted at http://rwor.org

"The Law, Like Terrorism, is `Whatever We Say It Is'" is an excerpt from a tape-recorded talk by Bob Avakian, Chairman of the RCP, USA, in the aftermath of September 11 and in the context of the war launched by the U.S. government, focused initially against Afghanistan. Major excerpts of this talk are available in a special magazine--"The New Situation and the Great Challenges"--and this week's article is part of a series of additional material from this talk.

The U.S. rulers like to strike the moral posture of being the country of freedom and liberty and constitutional law. They are always emphasizing that "This is a government of laws, not of men." Well, with their heightened police-state measures and overall repression, they are running into certain acute contradictions around this.

Take, for example, the power they're arrogating to themselves to listen in on the conversations of accused terrorists and their lawyers. With that, they're basically undermining the whole concept of a fair trial. How can there be a fair trial when the government can listen in on the conversations of the defense, including its preparation for trial? Of course, they say they are not going to do that, they're only going to listen for things that might involve planning future crimes--oh yeah, right. But, to get into and expose this further, let's say that person X is accused of committing a "terrorist act." They sit down with their lawyer and they say, "Well I didn't do this and person Y can prove I didn't do it because I wasn't where the government said I was at that time, I was with person Y." Well, guess what might happen to person Y next day. Person Y can be pressured; person Y can be intimidated; person Y can be disappeared. There is plenty of experience where this has happened with witnesses who would undermine the case of the government or even reveal it to be based on tainted and fabricated evidence and wrongful prosecution. And this new power to listen to conversations between defendants and their lawyers will undermine further, in a qualitatively greater way, the whole basis for a fair trial--to the degree that it actually exists anyway.

This, of course, goes along with the whole mentality, which they have been systematically trying to cultivate--and they did this in a concentrated way with the O.J. Simpson trial--that as soon as someone is accused they're automatically guilty, and any attempt to have them found not guilty is trickery, the evil doings of those evil (defense) lawyers taking an advantage of "technicalities" (otherwise known as provisions of the Constitution), and so on.

It's the Edwin Meese line--the former Attorney General under Reagan--he actually articulated this at one point when he said, "Well these people wouldn't be on trial, we wouldn't be accusing them, if they weren't guilty." And that notion, to the degree that it is accepted and applied, goes a long way to undermining and obliterating due process. In fact, to a large degree this has long been the "operating assumption": in reality the "public"--and juries drawn from the "public"--are conditioned, in general and particularly in relation to any case the state regards as important, to believe that people who are accused are in all likelihood (if not definitely) guilty, and it is up to them to prove their innocence. In other words, the exact opposite of the principle that is supposed to be in effect in criminal legal procedures: innocent until proven guilty, beyond a reasonable doubt.

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This is shown by the widely propagated "wisdom" that O.J. Simpson was not found innocent, he was only found "not guilty." If, as is supposed to be the case, the operating assumption and principle is that you are innocent until proven guilty, beyond a reasonable doubt, then logically, in the eyes of the law, there is no distinction between "not guilty" and "innocent." Theoretically, a pillar of the whole U.S. legal system is that you're innocent until proven guilty. Now, people can think what they want to think about what actually happened with the events that led to O.J. Simpson's being accused and tried for murder (and I do not claim to know what actually happened), but in the eyes of the law, Simpson, like everyone else, is supposed to be innocent until proven guilty.

But, again, that's not the way it really works. I remember, for example, a story that my father, who was a superior court judge for many years in the Bay Area, used to tell about a trial: during the voir dire for the jury, when they ask the jury questions to see if they are fit to be on a jury, if they can be fair and impartial, the defense attorney got up at one point and asked this one woman juror, "Well, now, do you understand the presumption of innocence?" And she said, "Yes, I think so." "Well, you understand that my client is innocent until proven guilty?" "Yes, I understand that." "So, in other words, if the prosecution does not succeed in proving beyond a reasonable doubt that my client is guilty, you're willing to find him not guilty?" "Yes, I understand that. Yes, that's what I'd do." "So, then, if you weren't convinced that the government had made its case beyond a reasonable doubt, you'd just let him go, let him walk right out the door?" And the woman said, "Yes...but what if he does it again?"

So you see, this is the way they've conditioned the populace for a long time, but in recent years they've also been carrying out a heightened and more systematic effort to undermine and reverse, in the minds of the people, the innocent until proven guilty principle. And now they're trying to take another leap with this. This relates to the military tribunals that Bush has announced he may, at his discretion, establish. Here, in this situation, the ultimate prosecutor is the Commander-in-Chief of the Armed Forces and the judges are lesser officers in the armed forces--and while they've been forced to make certain cosmetic concessions to due process, Bush and company are still openly talking about legal processes in these military tribunals where many of the key protections and rights that are associated with due process will be eliminated or seriously undercut. So essentially, just as they're saying with terrorism, "it's whatever we say it is," now they're saying in effect and by their own logic, that due process is whatever they say it is.

This is graphically illustrated by the statement that Cheney made--that these people, these terrorists, don't deserve the same rights as other people. So, by this logic, once the Executive branch of government--and more specifically the President in his capacity as Commander-in-Chief of the armed forces--declares somebody to be a terrorist, then they should lose rights that are supposedly guaranteed to them by the Constitution (which, it should be noted, is not supposed to apply only to U.S. citizens but to all people in U.S. territory). If you accept this logic, then you have obliterated the distinction between accusation and actual guilt. And if you accept that terrorism is whatever they say it is, and that as soon as they label someone a terrorist that person does not deserve Constitutional protections and due process of law, then in effect you're agreeing that the law itself is whatever they say it is, and that the Constitution means whatever they say it means (and doesn't mean what they say it doesn't mean). Well then, the whole pretense and the whole proclamation that the great thing about America is that this is a system or a country of laws and not of men--this is being undermined and all but obliterated right out in the open. Because you're essentially saying it is "a government of men." It's nakedly the government of the ruling class and its political inner core that decides what the law is, what the Constitution is, who has rights and who doesn't.

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It's very interesting--there are two significant questions that I can think of (and I'm sure there are many more) that Bush has never been asked by the mainstream media--or at least the mainstream media have never treated these as significant questions that should be seriously pursued with Bush.

First, a question that should have been asked during the election. Given that Bush went and spoke at the reactionary, openly racist and Christian fundamentalist Bob Jones University and that he has these Christian Fascist advisers like Ralph Reed and others who openly attack evolution and say it's not a scientifically established fact--and who insist on "Biblical truth" in opposition to evolution-- why, during the election, did the media not pursue this question: "Mr. Bush, do you or do you not believe that evolution is not just a theory but a scientifically established fact?" (Apparently, Bush was actually asked this question recently, and he replied that "the jury is still out"!! Imagine that the Chief Executive of the supposedly "leading country of advanced Western civilization" does not hold--or will not say publicly--that evolution is a scientifically established fact!) As far as I know, the media did not pursue this question with Bush during the election, even though this was a very relevant question given what's going on in the U.S.--where in Kansas, for example, there was an attempt by state educational officials to prevent the teaching of evolution as scientific fact, where there is a wholesale assault on evolution that's coming from the Christian Fascists, including powerful and highly connected people like Pat Robertson (and his protege Bush adviser Ralph Reed).

Even more relevant and important in the immediate situation is the fact that, so far as I know, neither before nor since September 11, has the mainstream media in the U.S. pursued the question: "Mr. Bush, what is terrorism? Give us a definition of terrorism so that in the future all the people in the United States and around the world will have a basis, an objective basis, to evaluate things when you say you're going after terrorists--what this means and whether you're being consistent with what you're saying and doing."

Think of how obvious and relevant a question that is. What is terrorism? Well the answer is obviously that terrorism is "whatever we say it is" (and the corollary: things that may seem to the ordinary person to be terrorist are not terrorist if we say they are not, or if we refrain from saying they are). (In his December 6 testimony to the Senate Judiciary Committee, Attorney General Ashcroft answered this question as follows: "Since 1983, the United States government has defined terrorists as those who perpetrate premeditated, politically motivated violence against noncombatant targets." But the fact remains that, despite this question and answer in the Senate hearings, this most basic and essential question--of how the U.S. government is defining terrorism--has not been pursued, let alone vigorously pursued, by the mainstream media; nor of course have these media pointed to the many howling contradictions in whom the U.S. government identifies as being, and not being, "terrorists" deserving of attack.)

And, again, it is clear why the bourgeois media have not pursued this question with Bush, or other major representatives of the U.S. government. If they did--if they made a big deal out of getting and popularizing any definition that would be given by government representatives--then, as clearly shown by Ashcroft's answer in the Senate hearings, this definition would condemn the United States and all its allies as terrorists, would in fact reveal the U.S. imperialists to be far and away the biggest terrorists on the planet.

All this points to something fundamental that is going on here, to the "principle" the U.S. ruling class is applying--that not just "terrorism" but also the law, Constitutional rights and due process, all are "whatever we say they are." While we shouldn't overstate or exaggerate what the situation is at a given point, there is great relevance to the Martin Niemoeller quote* and we shouldn't simply look pragmatically at what they're doing at any given time. Instead we should look at the whole trend of where things are going, as well as the logic that they themselves are articulating. What is the logic of what they're saying--as one of Richard Pryor's characters put it, "What is the logical conclusion of the logic?" Where does it lead? These are very important points both to understand and to do exposure around--both to help arouse broad opposition to this whole juggernaut and to bring further to light the essence of bourgeois dictatorship, in all its forms and manifestations.

* "First they came for the Communists, and I didn't speak up because I wasn't a Communist. Then they came for the Jews, and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists, and I didn't speak up because I wasn't a trade unionist. Then they came for the Catholics, and I didn't speak up because I was a Protestant. Then they came for me, and by that time no one was left to speak up."--Pastor Martin Niemoeller, 1945, summing up the emergence of Nazi Germany.

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