Padilla v. Hanft, the very important decision yesterday by the U.S. Court of Appeals for the Fourth Circuit in Richmond, must not pass unnoticed. Much less unmourned.
Narrowly, the Fourth Circuit accepted the Bush regime’s contention that the Authorization for Use of Military Force Joint Resolution (Public Law No: 107-40, September 18, 2001) gives the regime “all powers necessary and appropriate to protect American citizens from terrorist acts by those who attacked the United States on September 11, 2001,” and that “those powers include the power to detain identified and committed enemies such as Padilla…” (p. 24).
(Notice how, when reading the Fourth Circuit’s opinion, it sounds as if it came straight from the lips of one of the regime’s spokespeople?)
But, more broadly (i.e., more real-worldly), the decision ought to be taken exactly as Human Rights First’s Deborah Pearlstein (whose work on these interrelated issues of the so-called “War on Terror,” “unlawful enemy combatant” status, interrogation, torture, and “rendition,” and, in short, the global American Gulag, is second-to-no-one’s) expressed it in her statement on behalf of Human Rights First:
The court’s ruling effectively declares the entire world – including the United States – to be a battlefield subject to military jurisdiction, where American citizens can be stripped of their Constitutional rights.
(Quick aside. I should add that the second-half of Pearlstein’s statement strikes me as without merit: “We expect the Supreme Court will take up this historic case, and we are confident that the courts will ultimately affirm the due process rights of all U.S. citizens.” Or else why nominate people such as John Roberts to the U.S. Supreme Court?)
We need to take this decision in terms of its contemporary American context—just like we need to take the totality of the Gulf Coast hurricane and its aftermath the same way. “Judge J. Michael Luttig wrote the decision for the three-member panel in Richmond, Va.,” this morning’s LATimes tells us. “He is considered to be on President Bush’s short list of candidates to fill a vacancy on the Supreme Court.”
Likewise, it was for this exact same reason—i.e., for reasons of certain uses of state power, the divine right of elected officials, the belief that the Executive Branch not only is above the law, but The Law in and of itself—that Judge John Roberts was nominated back in July to replace Justice Sandra Day O’Connor on the U.S. Supreme Court. After all, in Hamdan v. Rumsfeld (July 15, 2005), decided within days of his nomination to the U.S. Supreme Court, Roberts joined a memorable decision by the U.S. Court of Appeals for the District of Columbia which found that “conflicts with the Taliban and al Qaeda are distinct”—conveniently, that they are conflicts sui generis, and that, from the point of view of U.S. law, extant treaties, and customary international law and precedents, nobody can touch the Chief Executive.
This decision concluded:
Non-state actors cannot sign an international treaty. Nor is such an actor even a “Power” that would be eligible under Article 2 [of the Third Geneva Convention] to secure protection by complying with the Convention’s requirements. Common Article 3 [of the Third Geneva Convention] fills the gap, providing some minimal protection for such non-eligibles in an “armed conflict not of an international character occurring in the territory of one of the High Contracting Parties.” The gap being filled is the non-eligible party’s failure to be a nation. Thus the words “not of an international character” are sensibly understood to refer to a conflict between a signatory nation and a non-state actor. The most obvious form of such a conflict is a civil war. But given the Convention’s structure, the logical reading of “international character” is one that matches the basic derivation of the word “international,” i.e., between nations. Thus, I think the context compels the view that a conflict between a signatory and a non-state actor is a conflict “not of an international character.” (pp. 21-22)
The philosophy guiding these guys is perfectly transparent, I think. And this is equally true whether we are talking about natural disasters, humanitarian crises, or human conflicts—the United States of America being one of the most profoundly conflicted places on the face of the earth, it bears repeating.
When deployed on behalf of class and naked-power privileges (including the established privileges of those occupying state institutions), state power is good, and these powers of the state ought to be aggrandized. Hence Padilla v. Hanft. Hamdan v. Rumsfeld. And the like.
Laws and the state only become problematic when people try to use them in a way that challenges class and naked-power privileges.
So much for the dictatorship by “orthodox liberal ideology.”
As a friend wrote to remind me earlier this morning, one of the most relevant observations about state power and executive prerogatives during wartime came from the desk of Winston Churchill, then the Prime Minister of the United Kingdom, in 1943—”when the dangers facing his country were perhaps a bit more serious than anything here,” my friend adds.
Said Churchill (see, e.g., “A War on Terror or a War on Justice?” Geoffrey Bindman, February 8, 2005):
The power of the Executive to cast a man into prison without formulating any charge known to the law, and particularly to deny him the judgement of his peers, is in the highest degree odious, and is the foundation of all totalitarian government, whether Nazi or Communist.
It is good to recognize where the current regime of Americans might rank in the eyes of previous generations.
Always good, too, to watch the “strict constructionists” of the counter-revolution hard at work on the U.S. Constitution. No small government for these fellows. At least not where it comes to the state in its violent, people-smashing, country-invading functions. The only Big Government for which these fellows can find not a trace of original intent in their scrutinizing of the U.S. Constitution is the one animated by a notion of the common good, and that helps people generally, rather than selectively. Exclusively.
My goodness this is America, after all. Let there be no doubt about it.
Daily grows the shadow cast by unaccountable elites over the United States and the world.
Authorization for Use of Military Force Joint Resolution, United States Congress, Public Law No: 107-40, September 18, 2001
“President Signs Authorization for Use of Military Force bill,” White House Office of the Press Secretary, September 18, 2001
Salim Ahmed Hamdan v. Donald H. Rumsfeld, United States Secretary of Defense, et al. (No. 04-5393), Judge A. Raymond Randolph et al., United States Court of Appeals for the District of Columbia, July 15, 2005
Jose Padilla v. C.T. Hanft, U.S.N. Commander, Consolidated Naval Brig. (No. 05-6396), Judge J. Michael Luttig et al., United States Court of Appeals for the Fourth Circuit, September 9, 2005
“Court allows Bush to detain US ‘combatant’ indefinitely,” Edward Alden and Patti Waldimer, Financial Times, September 10, 2005
“U.S. Wins Court Ruling in ‘Dirty Bomb’ Case,” Richard A. Serrano, Los Angeles Times, September 10, 2005
“Court Gives Bush Right to Detain U.S. Combatant,” Neil A. Lewis, New York Times, September 10, 2005
“Court rules against terror suspect,” Bob Egelko, San Francisco Chronicle, September 10, 2005
“U.S. Can Confine Citizens Without Charges, Court Rules,” Jerry Markon, Washington Post, September 10, 2005
“Indict Jose Padilla,” Editorial, Washington Post, September 10, 2005
“America bids farewell to the rule of law,” Siddharth Varadarajan, The Hindu, September 12, 2005
Postscript (November 29): For more on this creeping—and sometimes galloping—American Tyranny, see:
“Pentagon Expanding Its Domestic Surveillance Activity,” Walter Pincus, Washington Post, November 27, 2005
To lift one little passage from this important report, Big Government statists within the U.S. establishment want the government to be big enough and powerful enough to use “leading edge information technologies and data harvesting,” which involves “exploiting commercial data” harvested with the help of Corporate America, to spy on you and to spy on me in the hope of catching somebody in the commission of, or in preparation for, allegedly treasonous acts—where what is treasonous ought to be understood in the same open-ended sense as, say, the “War on Terror,” with its “unlawful enemy combatants,” and its permanent detentions without the constitutional protections of habeas corpus-type rights, on the grounds that the American President has declared that the United States is engaged in a new kind of war, that Soandso is an unlawful enemy combatant in this new war, and therefore that neither constitutional nor international protections apply. Period.
For two other analyses of the American Tyranny, see:
As Adam Liptak reported:
“The term ‘enemy combatant,’ ” according to a Defense Department order last year, includes anyone “part of or supporting Taliban or Al Qaeda forces or associated forces.”
In a hearing in December in a case brought by detainees imprisoned in the naval facility in Guantánamo Bay, Cuba, a judge questioned a Justice Department official about the limits of that definition. The official, Brian D. Boyle, said the hostilities in question were global and might continue for generations.
The judge, Joyce Hens Green of the Federal District Court in Washington, asked a series of hypothetical questions about who might be detained as an enemy combatant under the government’s definition.
What about “a little old lady in Switzerland who writes checks to what she thinks is a charitable organization that helps orphans in Afghanistan but really is a front to finance Al Qaeda activities?” she asked.
And what about a resident of Dublin “who teaches English to the son of a person the C.I.A. knows to be a member of Al Qaeda?”
And “what about a Wall Street Journal reporter, working in Afghanistan, who knows the exact location of Osama bin Laden but does not reveal it to the United States government in order to protect her source?”
Mr. Boyle said the military had the power to detain all three people as enemy combatants.
Always remember the scare tactics that accompany repressive campaigns: The combined notions that the hostilities are global, and that the hostilities will last for generations.
Therefore wel need to grant the Tyrant the limitless powers he demands over us in order to protect us from harm.
“The Tyrant in Chief,” ZNet, May 25, 2005
…must have been done by Nazis, Soviets in their gulags, or some mad regime…, ZNet, June 19, 2005
“The Very Definition of Tyranny,” ZNet, June 20, 2005
“Super Predator,” ZNet, October 7, 2005