Writers on the Range: On walls and laws that break and bend
writers on the range
The poet Robert Frost famously wrote, “Something there is that does not love a wall. That wants it down.”
The Bush administration disagrees. It loves a wall, particularly the border fence we’re erecting from San Diego, Calif., to Brownsville, Texas. But they’d probably have no problem with a rewrite of Frost: “Something there is that does not love a law. That wants it down.”
In early April, three documents were released in Washington that eloquently revealed this administration’s contempt for the law. One came in a Federal Register notice from Homeland Security Secretary Michael Chertoff, who waived over 30 environmental and land management laws to allow the “expeditious” construction of the fence in areas of major illegal entry in California, Arizona, New Mexico, and Texas.
Among the waived laws: The Endangered Species Act, the Clean Water Act, the Archeological Resources Protection Act, the Farmland Protection Policy Act, the Wild and Scenic River Act, the Eagle Protection Act, the Wilderness Act, the National Wildlife Refuge System Administration Act, the National Park Service Organic Act, the Native American Graves Protection and Repatriation Act, and the Religious Freedom Restoration Act.
Just in case that list proves insufficient, Chertoff concluded: “I reserve the authority to make further waivers from time to time…”
To waive a law is to announce an intention to break it, and to assert immunity. It is to take a law down. This is no local or limited matter. The fence would be over 700 miles long when completed, and threatens to eliminate one of the richest biological areas in North America.
Among the natural reserves that will be affected are the Lower Rio Grande Valley National Wildlife Refuge, home to ocelots and 16 other federally-listed threatened or endangered species, the Organ Pipe Cactus National Monument and the Cabeza Prieta National Wildlife Refuge, home to the last 70 surviving Sonoran pronghorns in the United States.
The U.S.-Mexico border is an arbitrary line drawn through an ecologically seamless landscape. To survive in this unpredictable desert region, animal populations on both sides must be able to cross the border in search of food and water. And the most endangered species, like the pronghorns, ocelots and jaguars, need to interbreed with larger populations on Mexico if they are to survive.
But in a so-far futile attempt to stop illegal immigration, the administration is prepared to ignore America’s environmental laws and destroy the ecology of the borderlands in the process.
Two other documents reveal this destructive arrogance, and both are Justice Department memos dealing with presidential power in 2001 and 2003. One, entitled “Military Interrogation of Alien Unlawful Combatants Held Outside the United States,” justified torture in fighting the war on terror. Among its many sweeping claims: “Any presidential decision to order interrogation methods that are inconsistent with the Convention on Torture, (an international treaty ratified by the United States), would amount to a suspension or termination of those treaty provisions… Similarly, customary international law lacks domestic legal effect, and in any event can be overridden by the President at his discretion.”
In other words, any presidential decision is allowed, simply because it is a presidential decision.
This document contained a footnote that referred to an earlier opinion by the same author, deputy assistant Attorney General John Yoo. That memo, entitled “Authority for Use of Military Force to Combat Terrorist Activities Within the United States,” has never been released. The footnote to it is chilling enough: “Our office recently concluded that the Fourth Amendment had no application to domestic military operations.” You remember the Fourth Amendment, the one that states that “the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated.”
The Justice Department reacted to publicity about its abrogating the Fourth Amendment by saying government policy had changed. Or had it? Justice Department spokesman Brian Roehrkasse said, “We disagree with the proposition that the Fourth Amendment has no application to domestic military operations. Whether a particular search or seizure is reasonable under the Fourth Amendment requires consideration of the particular context and circumstances of the search.” What context and circumstances ” a waiver, perhaps?
When a government suspends, waives or redefines its own laws at will ” and the people acquiesce ” can that nation be called a democracy?
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