Reviewing Jennifer Van Bergen’s “The Twilight of Democracy”

Jennifer Van Bergen is an author, activist and educator who currently teaches English and writing at Sante Fe Community College in Gainesville, Florida.  Professionally, she’s also a journalist, legal analyst and non-practicing attorney who’s written, spoken out and debated widely on Patriot Act justice and other civil liberties issues. Her newest book is titled "Archetypes for Writers: Using the Power of Your Subconscious." It analyzes the component skills writers need to learn about their "own already-existing characters" through a series of exercises in the book.


Her other vitally important recent book and subject of this review is called "The Twilight of Democracy: The Bush Plan for America" written in 2005. It’s a clear and powerfully relevant analysis of the threat to freedom, democracy and justice in America today under the Bush regime. As the author puts it: "(We live in a time when) civil liberties have been broadly violated to an unprecedented degree….My goal (in the book) is to lay bare what the government does and is doing, and why it is so profoundly anti-democractic" and a danger to everyone.


The book is in two parts. In Book I, Van Bergen discusses constitutional law, the types of courts and standards of review established to administer it, and the dangerous path we’re now on toward a fascist state under George Bush. Book II then reviews "The Bush Plan" for America under Patriot Act justice; the pervasive culture of fear, extreme secrecy and illegal sweeping universal surveillance; permanent state of war for world dominance; and network of barbaric torture-prisons where anyone for any reason may be labeled an "unlawful enemy combatant" and unjustly consigned to the awaiting hell within them.


Book I – Deciphering the Democratic Code


Van Bergen starts off by explaining the clear and present danger of a president who disdains the law and ignores it in pursuit of whatever he wishes. The result is "Freedom and democracy in America are in grave danger," and all humanity is affected as well. By his actions, Van Bergen believes the Bush administration declared war on the Republic and has gone so far astray, "there may be no going back." She may be right, it may already be too late, and she explains why in her opening chapter.


Down the Road to Fascism


Van Bergen cites the following signs of a nation "already more than three-quarters of the way down the road to fascism:" the stolen 2000 presidential election, Patriot Acts I and II, illegal mass surveillance, torture-prison gulag, culture of extreme secrecy and fear, contempt for the rule of law, a permanent state of war and more. We may already be past the tipping point of its classical definition:


– a state combining corporatism with strong elements of patriotism and nationalism;


– a claimed messianic Almighty-directed mission; and


– characterized by authoritarian rule backed by iron-fisted militarism and homeland security enforcers, mass illegal spying, and intolerance of dissent under a president who disdains the law. 


Van Bergen calls these components "The Bush Plan to subvert and overthrow democratic systems" and values. It’s not just the work of one man or a group of loyalist supporters. It’s become part of our corporate culture that thrives on achieving imperial global dominance. It’s being pursued by waging war on the world under a national security Patriot Act-governed police state tolerating no dissent. Van Bergen discusses the Act briefly before getting into a more in-depth treatment in Book II. She shows how the law dilutes constitutional standards by amending and combining three separate but parallel legal systems listed below. They use different courts, are now merged and are exploited under Patriot Act justice:


(1) criminal laws and procedures,


(2) foreign intelligence law, and


(3) immigration law.


Post 9/11, Van Bergen notes people are out of the loop believing "constitutional law is hard to understand" and strictly the realm of theoreticians. How does the Constitution relate to "getting ahead in life, with making money," she asks. It’s central to it if people begin realizing it’s what guarantees their rights in a free society without which nothing is guaranteed but government repression against anyone considered a threat, true or not. The basic laws of the land aren’t hard to understand. What’s hard is getting people to know their rights under them, realize they’re now at risk and be willing to take a stand for what they can’t afford to ignore.


The Law is King – If We Can Keep It


We like believing we’re a country of laws, not men. It’s far from true, won’t ever be unless demanded from the grassroots, and under the Bush administration it’s pure fantasy. Its officials scorn the law at home and abroad. Van Bergen counts the ways:


– refusing to adhere to the four Geneva Convention treaties that are the supreme law of the land;


– opting out of the International Criminal Court (ICC) 104 other nations belong to, including virtually all Western democracies; in addition 42 others signed the Rome Statute but haven’t yet ratified it;


– condoning torture and allowing or ignoring other human rights abuses; the Nazis called torture "Verscharfte Vernehmung," or "enhanced interrogation" leaving few telltale signs of abuses committed; George Bush secretly authorized his own version of harsh "enhanced interrogation" in a July, 2006 executive order; it was unmentioned on October 5 when he confronted a public uproar and contemptuously stated: "This government does not torture people;" he also ignored secret Department of Justice (DOJ) legal opinions confirming his administration condones "the harshest interrogation techniques ever used by the CIA;"


– scorning Bill of Rights laws that guarantee free expression, religion, assembly, representation by competent counsel in a criminal proceeding, fair and speedy trials by a jury of peers, protection from illegal searches and seizures and much more.


These and other rights are constitutionally guaranteed that in a nation of laws "is considered the bottom line" and inviolate. Not so in the age of George Bush with the DOJ and courts taking great "balancing test" liberties when the administration raises issues of national security, justified or not. Van Bergen asks "Do we want a country of laws and not of power-mongering men?"  Getting it means earning it and that begins with understanding our rights and how legal systems work. 


They’re all underpinned by the supreme law of the land in the benchmark Constitution most people know about but not what’s in it, what it means, and how, in fact, it works for good or ill. In spite of it, governments always side with privilege and especially capital interests. Ordinary private citizens are hard-pressed to get justice without competent and generally expensive legal counsel few can afford.


Our Individual Rights


Here Van Bergen focuses on due process, free speech and association, legal representation, and freedom from unreasonable searches and seizures. She notes these rights aren’t absolute because democratic governments try to balance the "good of the one" against "the good of the many" when it comes to issues of peace and security. The result is individuals often lose out for the supposed greater good that may only be the workings of a repressive state. That’s what’s happening today in America.


Due Process


Also called "procedural due process," this term only applies when a person’s "life, liberty, or property" is at stake, and the government is constitutionally required to provide due process legal procedures so a person gets a proper defense. Often in the past, this right wasn’t afforded. Today it’s being willfully swept away under police state justice.


First Amendment Freedoms – Speech, the Press, Religion, Assembly and Association


No rights are more vital than these as without them no others are possible, but today, under George Bush, they’re being lost. As Van Bergen puts it: "democracy cannot exist without these freedoms." Indeed not, and it’s why earlier crumbs of them are now threatened more than ever under Patriot Act justice and other harsh laws like the Military Commissions Act enacted after Van Bergen’s book was published. She points out free expression, the press and right to assemble are most threatened today even though they’re constitutionally guaranteed.


That doesn’t deter George Bush who on July 17, 2007 issued another of his "one-man" Executive Order (EO) decrees "Blocking Property of Certain Persons Who Threaten Stabilization Efforts in Iraq." Nothing in the Constitution implicitly or explicitly allows for EOs, but once issued, even illegally, they become the law of the land unless or until courts rule otherwise. This one criminalizes dissent so that all anti-war protests are now illegal, and persons participating in them are subject to arrest, prosecution and loss of their property. That’s how a police state works, and that’s the condition in America under George Bush’s contemptuous flouting of the law to crush all opposition.


Fourth Amendment Rights


This law protects people from illegal searches and seizures, it’s not absolute under the best of conditions, and it’s practically null and void today. Later in her book, Van Bergen shows how the Patriot Act allows the government "to mix standards from different, incompatible areas of law" (such as criminal investigations, foreign intelligence and immigration) that amounts to a "witch’s brew….of ingredients poisonous to a democratic government or way of life."


The Sixth Amendment Right to Counsel


This law provides that defendants shall "have the assistance of counsel" in all criminal prosecutions during and prior to trial and to free assistance if unable to pay for it. In addition, attorney-client confidentiality and privilege are protected under law. Patriot Act justice threatens these rights for immigrants, so-called "unlawful enemy combatants," cases in which the government feels national security trumps confidentiality, and in situations where lawyers (like Lynne Stewart) are targeted for defending "unpopular" clients.


Van Bergen concludes this section saying 9/11 changed everything, the gloves came off, and constitutionally protected rights no longer apply at the government’s discretion. Real democracies don’t work that way, America always fell short in the past, but the bar was lowered to bottom-scraping standards post-9/11. Now the unjustifiable is justified in the name of national security because the president says so, law or no law. That, however, openly constitutes "an exact reversal of the principles in our Constitution." That’s the condition today and why Van Bergen’s book is so important to explain it.


The Constitutional Code


Van Bergen calls the constitutional doctrines of separation of powers, judicial review and probable cause "code words invest(ing) the Constitution with meaning." How they’re abused, however, explains a lot about today’s frightening situation under a president who thinks and acts (in his words) like the Constitution is "just a goddamned piece of paper."


1. Separation of Powers


The framers crafted a government in three parts so no one of them got too much power although it never worked out that way from the start. Nonetheless, their idea was for the legislative branch to make laws, the executive to execute them, and the judiciary to interpret them. The doctrine is called the "separation of powers" that’s the "core protection against tyranny" if enforced and utterly meaningless if not like today under George Bush.


Since 9/11, Democrats and Republicans abdicated their responsibility and have marched ever since in lockstep on virtually everything the administration wants. Rhetoric aside, almost nothing’s changed to this day in spite of six and a half years of disastrous and reckless governance outside the law. Van Bergen sums it up saying, in the absence of checks and balances, "government power (has) run amok" under the Bush Plan.


2. Judicial Review


According to law professor Jethro Lieberman, judicial review is "the power of courts to declare laws and acts of government unconstitutional" although nothing in the Constitution allows this practice. Van Bergen adds, without this check on the other two branches, there’s "no remedy for bad laws (and in fact) no democracy."  It differs from the notion of "judicial supremacy" meaning the High Court is the final arbiter on all constitutional issues.


3. Court Stripping


Examples of this practice are found in extremist laws like the 1996 Anti-Terrorism Law (AEDPA), Patriot Acts I and II and other recent legislation as they restrict the ability of courts to review executive actions, and that’s not how democratic states function.


4. Probable Cause


Under the Fourth Amendment, neither arrest or search warrants are allowed without evidence of "probable cause" of criminal activity. The Bush administration, however, views all legal constraints as quaint and fanciful. It simply sweeps them away to do as it pleases to target anyone for any reason, real or concocted, in its sham "war on terrorism." Weak as they always were, post-9/11, constitutional protections are now an illusion. They simply no longer exist despite all the pretense they do.


Types of Courts and Standards of Review


Van Bergen lists four types today, each functioning under very different legal standards:


– regular federal civil and criminal courts called an "Article III court;" here, in theory, convictions depend on there being proof beyond a reasonable doubt; in practice, justice depends on how much of it defendants can buy in the form of competent legal counsel, and too few people can buy enough or any;


– immigration (or Executive branch) courts that rule on asylum and deportation issues; they’re also called the Executive Office of Immigration Review (EOIR); these courts administer immigration law and handle cases under it involving asylum, deportation, immigration crimes and detentions pending review;


– military courts and tribunals don’t come under the federal civil justice system; they’re for trying members of the armed services under the Uniform Code of Military Justice (UCMJ) and are used under the oppressive Military Commissions Act for anyone the president calls an "unlawful enemy combatant," real or imagined; the greatest danger these courts pose is that under a real or concocted state of emergency, the president can declare martial law, suspend the Constitution, and consign any targeted individual to justice under these courts with no trial by jury, no habeas rights, no assigned competent defense counsel, and no right of appeal;


– FISA courts (or FISC made up of 11

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