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June 19, 2002
Alexander Cockburn
The
Incredible Shrinking President
June 18, 2002
David Vest
Raise the
White Flag in Terror War?
Ben White
Is It Possible
to "Understand" the Rise in "Anti-Semitism"?
Edward Said
Palestinian
Elections Now
June 17, 2002
Jack McCarthy
Watergate
and All That
Philip Farruggio
A Maximum
Wage Law
Ron Sullivan
Law
and Orders:
The Assault on Trial by Jury
Rev. Charles Booker-Hirsch
Taking
on the School
of the Americas
Joan Smith
G.W. Bush:
The Man is Stupid
Dave Marsh
Corporate
Buy Outs and the Decline of Teen Jive
Robert Jensen
Rhetoric
Distorts Realities
June 15 / 16, 2002
Tanweer Akram
A Review
of Noam Chomsky's 9-11
Daniel Wolff
The Day
They Shot a Wolf in the Ghetto and What It Meant
Ralph Nader
A Corporate
Crime State
David Vest
Have You
Been Serviced?
Karl Kraus
A Minor
Detail
Alexander Cockburn
The
Terrorism of Everyday Life
June 14, 2002
Mark Weisbrot
US Trade
Policy:
"Do as We Say, Not as We Did"
Starhawk
The Boy Who Kissed the Soldier
David Krieger
Farewell
to the ABM Treaty
Tom Turnipseed
The Fear Factor to Promote
War and Trample Truth
Steve Perry
How the
Bush Adminstration Buried Coleen Rowley
June 13, 2002
Linda Belanger
Israeli-Palestinian
Conflict:
The Story Behind the Headlines
Amira Hass
Indefinite
Siege
Mokhiber / Weissman
Time to Put Lives Over Patents
Robert Fisk
Bush's Weird
War
Stanton / Madsen
Democracy
in Crisis:
What is to be Done?
Roldan Tomasz Suárez
Venezuela:
Five Facts
About the Coup
June 12, 2002
Fran Shor
Dirty Bombs, Blowback
and Imperial Projections
Dave Marsh
Shelley
Stewart, Radio and the Birmingham Civil Rights Movement
Chris Floyd
Murder, Inc.
June 11, 2002
Omar Barghouti
On Dance, Identity and War
Robert Fisk
The Bush
Afghan Gang:
Murderers, Gangsters, Stooges
Minerva Wright
The Donkeys of the Holy Land
David Krieger
Stopping
a Nuclear War
in South Asia
June 10, 2002
Jeffrey St. Clair
Executioner's Last Songs
June 8/9, 2002
Gavin Keeney
Mademoiselle
M.
Or Getting Screwed in Paris
Susan Davis
Sleepless
in the Suburbs
Curing Insomnia: a new use for The Nation?
George Sunderland
"Send
in the Weekly
Standard": The Screaming Pundits Assault Corps
Resources:
100s of Links
About 9/11
CounterPunch:
Complete
Coverage of 9/11 and Its Aftermath
Five
Days That
Shook The World:
Seattle and Beyond
By Alexander
Cockburn
and Jeffrey St. Clair
Photos by Allan Sekula
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Published March 15, 2002
Read Whiteout and Find Out
How the CIA's Backing of the Mujahideen Created the World's Most
Robust Heroin Market and Helped to Finance the Rise of the Taliban
and Osama bin Laden
Whiteout:
CIA, Drugs & the
Press
by Alexander
Cockburn
and Jeffrey St. Clair
The Memphis Blues Again:
Six Decades of Memphis Music Photographs
Photos by Ernest Withers
Text by Daniel Wolff
The New Intifada:
Resisting Israel's Apartheid
Edited by Roane Carey
A Pocket Guide to
Environmental Bad Guys
by James Ridgeway
and Jeffrey St. Clair
The
Phoenix Program
by Douglas Valentine
Al Gore:
A User's Manual
by Cockburn
and St. Clair
Buy
This Explosive
New Book at an
Amazing Discount!
Reviews of Gore:
a User's Manual
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June 20,
2002
Justice for Robert Jackson
The
War on Terror is Not a Suicide Pact
by Jacob Levich
If the FBI kicks down your door tonight and whisks
you off to a military Gulag, you can't be sure you'll ever again
be permitted to see the inside of a courtroom or the outside
of your cell.
Of one thing, however, you can be all
but certain: Tomorrow, the whole dirty business will be
condoned by some flatulent "expert" in the name of
the late U.S. Supreme Court Justice Robert Jackson.
Since September 11, pundits have routinely
excused every escalation in Bush's war against the American people
with some variation on the following sentence: "As Supreme
Court Justice Robert Jackson said, 'The Bill of Rights is not
a suicide pact.'" It's been used to justify, among other
things, racial profiling (Floyd Abrams), concentration camps
(Richard Posner), and torture (Jonathan Alter).
Most recently, when U.S. citizen Jose Padilla was summarily imprisoned
without charge, time limit, or the right to counsel-a wholesale
and unprecedented trashing of both Article III and the Sixth
Amendment-the New York Times asked Harvard law professor
Lawrence Tribe for comment.
Dithered the eminent scholar, who appears
to be suffering from a terminal case of the post-9/11 whim-whams:
"It is a source of concern, but the constitutional question
it presents is deeply perplexing, given that the Constitution
is not a suicide pact." (A regular Solon, this Tribe.)
Considering the offhandedness with which
Justice Jackson's phrase gets tossed around these days, you might
think it has some kind of legal force (it doesn't), or that Jackson
was arguing in favor of suspending civil liberties in time of
emergency (he wasn't).
In fact, the suicide-pact quote is not
law at all, but a rhetorical flourish lifted from Jackson's dissenting
opinion-he was on the losing side, you'll note-in Terminiello
v. City of Chicago (1949), a free speech case involving a
fascist orator who was busted for inciting a riot. The court
ruled that the police had exceeded their authority; Jackson,
remembering Nazi mob-rule tactics, argued that the state had
a right to intervene in order to prevent a punch-up. Here's the
quote in full: "There is danger that, if the court does
not temper its doctrinaire logic with a little practical wisdom,
it will convert the constitutional Bill of Rights into a suicide
pact."
What we have here is a somewhat sententious
expression of an unexceptional position-that a sensible balance
needs to be struck between civil liberties and public order.
In no conceivable sense is this a blanket endorsement of Bush's
nascent police state.
On the contrary, Jackson wanted local
authorities to handle this kind of problem precisely because
he feared the creation of a Federal Gestapo. Here's the section
of Jackson's Terminiello dissent that you won't
see quoted in the dailies:
"The Federal Bureau of Investigation is, and should remain,
not a police but an investigative service. ... In my opinion,
locally established and controlled police can never develop into
the menace to general civil liberties that is inherent in a federal
police."
In the same passage, Jackson warns against
"arbitrary exercises of military power" of the sort
sustained in Korematsu v. United States (1944), one of
several notorious decisions by which the Supreme Court permitted
the detention of thousands of Japanese-American citizens in concentration
camps. Despite tremendous pressure from the experts of his day,
Robert Jackson was one of three justices courageous enough to
dissent from a landmark betrayal of American values.
I suspect you won't be hearing much about
Korematsu during the dark days to come. Although it's
probably the strongest legal precedent for mass preventive detention,
it's also the textbook example of bad law created in an
atmosphere of wartime hysteria, so it's just too embarrassing
to cite. (Instead, Ashcroft and his pet pundits will continue
to rely on Ex Parte Quirn (1942), which is off-point but
less overtly malign).
Nor are you likely to encounter Jackson's
true opinion of imprisonment by Presidential fiat, as memorably
expressed in Shaughnessy v. Mezei (1953): "Fortunately
it still is startling, in this country, to find a person held
indefinitely in executive custody without accusation of crime
or judicial trial. Executive imprisonment has been considered
oppressive and lawless since John, at Runnymede, pledged that
no free man should be imprisoned, dispossessed, outlawed, or
exiled save by the judgment of his peers or by the law of the
land."
Clearly, Justice Jackson would have seen
the current assault on the Constitution as disgraceful and dangerous.
Tribe, Abrams, Posner, and the rest of the suicide-pact crowd
know this very well-they've read the cases-just as they know
that the Terminiello quote does not mean what they want
you to think it means. So why are they blowing smoke?
Apart from sheer intellectual laziness,
there's only one explanation that makes sense: the World Trade
Center attacks have scared our leading jurists out of their sheltered,
overprivileged wits. In their panic, they stand ready to jettison
major sections of the Bill of Rights-and if there's no sound
legal precedent for doing so, they'll happily invent one. Odds
are they'll live to regret their cowardice, but by then it may
be too late.
By contrast, Robert Jackson never deviated
from his commitment to habeas corpus and, more generally, the
rule of law. That's probably because, as chief prosecutor of
the Nuremberg tribunal, he came to understand what happens when
a government of laws collapses under pressure from a popular
and ill-intentioned strongman.
In his magisterial opening statement
at Nuremberg, Jackson pinpointed the historical moment at which
German democracy gave way to the Nazi lawlessness. On February
28, 1933, he recounted, Adolph Hitler seized upon an act of terror-the
burning of the Reichstag-as the pretext for an arbitrary suspension
of habeas corpus, the right to a public trial by jury, and other
guarantees of individual liberty contained in the Constitution
of the Weimar Republic.
From that point onward, "secret
arrest and indefinite detention, without charges, without evidence,
without hearing, without counsel, became the method of inflicting
inhuman punishment on any whom the Nazi police suspected or disliked."
In Germany, mind you, it took a gang
of ruthless thugs to murder constitutional government. Here,
with the genteel acquiescence of the legal punditry, constitutional
government is about to commit suicide.
Jacob Levich
is a writer and editor living in Queens, N.Y. He can be reached
at: jlevich@earthlink.net
Today's
Features
Jeffrey St. Clair and
Alexander Cockburn
Fire
Walk With Me:
Terry Lynn Barton and the Flames of Colorado
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