'Intelligent discontent is the mainspring of civilization.' -- Eugene V. Debs

Friday, September 29, 2006

The Twilight of the American Republic 

UPDATE: The Attorney General sends a message to the judiciary:

Attorney General Alberto Gonzales, who is defending President Bush's anti-terrorism tactics in multiple court battles, said Friday that federal judges should not substitute their personal views for the president's judgments in wartime.

He said the Constitution makes the president commander in chief and the Supreme Court has long recognized the president's pre-eminent role in foreign affairs. "The Constitution, by contrast, provides the courts with relatively few tools to superintend military and foreign policy decisions, especially during wartime," the attorney general told a conference on the judiciary at Georgetown University Law Center.

"Judges must resist the temptation to supplement those tools based on their own personal views about the wisdom of the policies under review," Gonzales said.

And he said the independence of federal judges, who are appointed for life, "has never meant, and should never mean, that judges or their decisions should be immune" from public criticism.

Naturally, like we wouldn't want them to substitute their personal views by reference to things like the Constitution, the Magna Carta, things like that, because, that, you know, might reveal that the President is, like, subject to legal restraints like the rest of us, and can't just do anything he wants.

INITIAL POST: From today's Washington Post:

The military trials bill approved by Congress lends legislative support for the first time to broad rules for the detention, interrogation, prosecution and trials of terrorism suspects far different from those in the familiar American criminal justice system.

President Bush's argument that the government requires extraordinary power to respond to the unusual threat of terrorism helped him win final support for a system of military trials with highly truncated defendant's rights. The United States used similar trials on just four occasions: during the country's revolution, the Mexican-American War, the Civil War and World War II.

Included in the bill, passed by Republican majorities in the Senate yesterday and the House on Wednesday, are unique rules that bar terrorism suspects from challenging their detention or treatment through traditional habeas corpus petitions. They allow prosecutors, under certain conditions, to use evidence collected through hearsay or coercion to seek criminal convictions.

The bill rejects the right to a speedy trial and limits the traditional right to self-representation by requiring that defendants accept military defense attorneys. Panels of military officers need not reach unanimous agreement to win convictions, except in death penalty cases, and appeals must go through a second military panel before reaching a federal civilian court.

By writing into law for the first time the definition of an "unlawful enemy combatant," the bill empowers the executive branch to detain indefinitely anyone it determines to have "purposefully and materially" supported anti-U.S. hostilities. Only foreign nationals among those detainees can be tried by the military commissions, as they are known, and sentenced to decades in jail or put to death.

At the same time, the bill immunizes U.S. officials from prosecution for cruel, inhumane or degrading treatment of detainees who the military and the CIA captured before the end of last year. It gives the president a dominant but not exclusive role in setting the rules for future interrogations of terrorism suspects.

Written largely, but not completely, on the administration's terms, with passages that give executive branch officials discretion to set details or divert from its protections, the bill is meant to provide what Bush said yesterday are "the tools" needed to handle terrorism suspects U.S. officials hope to capture.

After the issuance of the United States Supreme Court's decision declaring the use of military tribunals to try suspects was unconstitutional, I wondered if the consequence would be a constitutional crisis. At the time, I emphasized the possibility that the President would openly defy the decision.

Silly me. No need to do so when the legislative branch of government is so willing to pass a measure that blatantly eviscerates legal protections against indefinite detention, conditions of confinement and fair trial. It can be safely said, without fear of contradiction, that these protections against arbitrary state action against the person have been the soul of Anglo American jurisprudence, the fundamental conditions of liberty that expanded into the more mundane liberties that we enjoy today. The real crisis, as with the Japanese internment, is whether the judiciary will serve its historic function to restrain the President's appetite for power, and one suspects that now, as then, it will not do so, especially after senators like Joseph Lieberman, Maria Cantwell and Ben Nelson broke ranks and voted for cloture to permit John Roberts and Samuel Alito to accede to the their seats on the Court.

But, of course, you can read about these subjects in depth on the liberal blogs, passionate statements by people who have a strong emotional bond with the republican philosophy upon which the United States was created. Here, at American Leftist, let's confront some of the possible consequences as they may manifest themselves outside the United States. Most of them arise as a quite predictable response to the vigilantism at the heart of the practice of seizing and detaining foreign nationals, and the use of it for purported intelligence purposes:

(1) People around the world can now legitimately claim that they need to arm themselves against possible seizure by the United States, as the United States has abrogated the right to seize, detain and torture anyone indefinitely, based upon the authority of the President, as delegated to the military and intelligence services (and, it is important to observe that many detainees have been seized in non-violent situations and subsequently found to have no connection to any violent actions against the US).

(2) People can thus additionally assert a right of self defense against the United States, because, again, once seized they have no rights of any kind, and can be held indefinitely, under conditions over which they have no control.

(3) Other individuals, groups, and even countries, may assert the right of moral necessity to defend people from seizure by any means that is considered proportionate to the threat. In other words, they can arm themselves and fire upon US military and intelligence officers who attempt to conduct such seizures, and potentially, even conduct covert operations.

(4) Other individuals, groups, and even countries, may assert the right of moral necessity to engage in covert activities to discover the locations of detention facilities, and and take action, perhaps violently, if necessary, to release detainees. For example, could Cuba assert the right, under international law, to demand the closure of Guantanamo, and respond with force if the demand was rejected?

(5) Individuals, groups, and even countries, may seize Americans abroad (and, possibly, within the United States?), and take action against American businesses and facilities, in an attempt to compel the release of detainees, because, now, after all, the American public, through the passage of the bill by Congress, has validated the President's policy.

Of course, we might, depending on the circumstances, vehemently object to such actions, but, on what basis? If one person, the President, can decide how, say, the citizens of Afghanistan, may be seized, detained and tortured, how are we to object to the decision of one, five or 500 Afghanis to oppose it, and the means by which they do so? The passage of this bill, as demanded by Bush, is yet another example, as is the war and occupation of Iraq, of his insistence that personal liberty and the sovereignty of nations must be subservient to his whim and the whim of future Presidents, and it will, as has the occupation of Iraq, inevitably engender violent resistance.

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