Justice Takes a Holiday

The annual US commercial holiday season is upon us again. As always, it commenced with candy for the kids on the pagan devil/spirit night Halloween, and rapidly passed through the harvest-and-shopping orgy of Thanksgiving. Now the effects of holiday shopping trends and buying patterns on the national economy assume first priority in corporate news media through the end of the year. The coldest season has some even weirder features than usual this time around. Capitalism and political power, reshaping what passes for democracy and justice under the Bush war time state, are generating some especially bizarre events in the courts, the streets, and the corporate suites. US law and justice are on very thin ice, during this ancient spiritual season of peace, presaging intense social conflicts likely to come in the new year.

Guantanamo Bay; A “Black Hole” Beyond the Law

On November 10, only ten days after the Christmas decorations came out at the mall for Halloween, the US Supreme Court accepted an appeal in which the Justices will consider whether the federal courts have any jurisdiction over the so-called “enemy combatants”at the naval interrogation center in Guantanamo Bay. The High Court will not decide, for now, whether these prisoners are being unlawfully deprived of their liberty. As far as the federal courts are concerned, they can spend the holiday season in the same legal purgatory they’ve occupied for the last two years, since the establishment of “Camp X-Ray” in January 2002: held without any rights whatsoever in the indefinite “war on terrorism.” Many of them have reportedly attempted suicide under the conditions of their confinement around the clock in cages.

The only question the Justices have agreed to consider so far is whether or not the Rule of Law can even be applied to such unpersons. Evoking the frontier mentality of the nation’s origins, Solicitor General Ted Olson – whose wife died on the plane that struck the Pentagon on September 11 – had unsuccessfully argued that the Court should not agree to hear the prisoners’ appeal, while US soldiers “and their allies” (Who? Which?) are overseas fighting the “savage foe.” The Bush administration’s extreme position on this basic legal issue of federal court jurisdiction, attempting to bar any potential judicially enforced limits at all on its military and political power grabs, apparently troubled even a mainstream, conservative governing institution like the Supreme Court. The Court felt bound to put its own prestige on the line, by the political act of accepting the case and entering into this especially controversial aspect of the “Global War on Terrorism.”

The President, his Supreme Court lawyer, Attorney General, FBI/CIA, “Homeland Security” and Pentagon authorities apparently don’t care how the “savage” foes may treat US forces captured abroad, after those savages’ people have been treated so badly by their US captors in the Guantanamo Bay gulag. The kids at risk in US military uniforms aren’t Bush’s or Cheney’s. The young Government Issue heroes come from working class families, the people Bush instructed to go shopping, to lift the country out of its post-September 11 economic malaise. If the US soldiers came from the families of Washington policymakers, they wouldn’t be stuck in a deadly, life-altering jam, and their families’ Thanksgiving celebrations wouldn’t have had empty seats at the table. The policymakers may not care about military families, but they are very concerned that courts applying legal rules to their psychological torture prison camp could put them in a bad odor. It almost immediately became clear that the Bush/Cheney gang do care very much about legal scrutiny of Guantanamo Bay. By November 30, less than three weeks after the Supreme Court said it would hear the appeal, on the Sunday after Thanksgiving, US military officials announced to the corporate media that “more than 100 men and boys” would be transferred in December and January from Guantanamo Bay to other, undisclosed locations outside US custody. Such legal review could potentially even threaten what the chickenhawk leaders of the “Global War on Terrorism” really care about: their power, to the extent it requires some legitimacy and acceptance by public opinion.

On November 27 British Law Lord Johan Steyn, one of 12 judges of Britain’s highest court, published a scathing, eloquent denunciation of the Guantanamo Bay camp in the International Herald Tribune. Lord Steyn didn’t mince words. He correctly pointed out that, “As matters stand at present,” under the terms of the DC Circuit Court of Appeals decision that the Supreme Court agreed to review, “the US courts would refuse to hear a prisoner at Guantanamo Bay who produces credible medical evidence that he has been and is being tortured. … They would refuse to examine any complaints of any individuals. The blanket presidential order [of November 13, 2001, providing for the prisoners’ kangaroo court “trials” by military commissions] deprives them of any rights whatever. As a lawyer brought up to admire the ideals of American democracy and justice, I would have to say that I regard this as a monstrous failure of justice.” Lord Steyn describes Guantanamo Bay as ” a legal black hole” and “a stain on United States Justice. The only thing that could be worse is simply to leave the prisoners in their black hole indefinitely.”

Ordinary Americans head to the malls in ritual celebration of middle class consumption. Prisoners at Guantanamo Bay have been photographed being returned on stretchers from “interrogation” sessions to their 6-by-8 foot metal cages. Now a leading legal authority, from the only one of those unidentified, elusive US “allies” that can be found on the planet, has joined internationally respected groups like Amnesty International and the Red Cross in harshly and unequivocally condemning the utter lawlessness of the Guantanamo Bay prison. A society that maintains a prison that is not subject to the Rule of Law applied in independent courts is by definition totalitarian, not democratic or law-abiding. The lunatic ideologues of the Bush/Cheney/Ashcroft gang continue to insist that all is well. Mainstream society collectively heaves a shrug and a sigh of utter indifference. There is more shopping, and more news about shopping, and more and more news about Michael Jackson being prosecuted for child sexual molestation, to distract attention from the disgraceful state of US law and justice. Another part of the really bad news is that this torture complex for foreign Islamic fundamentalist prisoners is far from the only place where justice is taking a holiday this year.

A Policy of Total Secrecy in a System of “Justice”

Another case of government abuse related to the war on terrorism came to the attention of the US Supreme Court in the last months of 2003. But I can’t tell you any of the details. They are not available to the public, and it would supposedly endanger national security if I knew them. The current federal government’s desire to keep debate about systematic violation of the fundamental human rights of people designated by the president as “enemy combatants” out of the jurisdiction of the courts, is consistent with their well-known obsession with secrecy; an official fetish that led the great Sixth Circuit Court of Appeals Judge Damon Keith to write “Democracies die behind closed doors.”

The Supreme Court has been asked to review another case brought in total secrecy, outside the realm of what the New York Times identified earlier this year as “the other superpower:” public opinion. Brought under the ultra-secret Foreign Intelligence Surveillance Act (FISA), “It’s the case that doesn’t exist. Even though two different federal courts have conducted hearings and issued rulings, there has been no public record of any action. No documents are available. No files. No lawyer is allowed to speak about it. Period. Yet this seemingly phantom case does exist – and is now headed to the US Supreme Court in what could produce a significant test of a question as old as the Star Chamber, abolished in 17th-century England: How far should a policy of total secrecy extend into a system of justice?”

If you answered this last question “not very damn far!” then you are certainly not focusing your attention with sufficient intensity on shopping this season. You may well even be in imminent danger of siding with “the terrorists” and not with “us” (that is, Bush and his funders and handlers). Your personal patriotism, Christianity, corporate subservience, and militarism are all open to question. If there are enough people who are sufficiently appalled by what our government is doing in our names, ostensibly to protect our safety and freedom, then it will get even rougher for many of “us.” Whatever the Supreme Court does about Guantanamo Bay, “the case that doesn’t exist,” or any other historic legal cases that are brought to its attention, we can expect more secret investigations, more secret searches and wiretaps, more secret trials and detentions based on more secret evidence, and more evidence of the open secret that US democracy is being tortured to death before our very eyes. But sadly there is even more injustice to worry about, during this annual holiday season, that reprises and attempts to cash in on ancient pagan rituals of death, renewal, redemption and love. If we get really organized and we effectively and vocally confront those responsible for abusing democracy, social justice, and the Rule of Law, in the streets and the public spaces of our communities, we will see more of what the Global Justice Movement encountered in Miami during the failed negotiations over the Free Trade Area of the Americas (FTAA) the week before Thanksgiving.

Miami Paramilitary Forces Suspend the Bill of Rights

The week before Thanksgiving brought representatives of the rulers of the world in the western hemisphere to Miami for another of their corporate power sessions, using the label “free trade” for US-dominated instruments (NAFTA, GATT, WTO, and now the FTAA) that are designed in multinational boardrooms to undermine democratic self-governance. As so often since the Seattle uprising against the WTO almost exactly four years ago, tens of thousands of Global Justice Movement activists were there to protest in the streets. Ironically, the corporate insiders’ negotiations fell apart like wet tissue paper this time; “free trade” has lost much of its luster, in the era of the National Security Strategy for permanent United States domination of the world through preemptive wars. Meanwhile, what happened out in the streets is a real wake-up call for democracy and justice in our life time.

Listen to the urgent description by Democracy Now’s Jeremy Scahill: “After last week, no one should call what [Police Chief John] Timoney runs in Miami a police force. It’s a paramilitary group. Thousands of soldiers, dressed in khaki uniforms with full black body armor and gas masks, marching in unison through the streets, banging batons against their shields, chanting, ‘back… back… back.’ There were armored personnel carriers and helicopters. The forces fired indiscriminately into crowds of unarmed protesters. Scores of people were hit with skin-piercing rubber bullets; thousands were gassed with an array of chemicals. On several occasions, police fired loud concussion grenades into the crowds. Police shocked people with electric tazers. Demonstrators were shot in the back as they retreated. One young guy’s apparent crime was holding his fingers in a peace sign in front of the troops. They shot him multiple times, including once in the stomach at point blank range…. In the times in which we live, this is what democracy looks like. Thousands of soldiers, calling themselves police, deployed in US cities to protect the power brokers from the masses. Posse Comitatus is just a Latin phrase. Vigilantes like John Timoney roam from city to city, organizing militias to hunt the dangerous radicals who threaten the good order. And damned be the journalist who dares to say it – or film it – like it is.”

This is only one of the most vivid accounts of the virtually total criminalization of protest and dissent in Miami, Florida, USA last month. It should make the blood of every real patriot boil with uncontrollable rage. Dubyah’s little brother and his local officials just used $8.5 million “security” dollars – out of the $87 billion recently appropriated by Congress to fund the ongoing Iraq catastrophe – to gas, assault, and shoot down peaceful global justice anti-corporate globalization protesters (aka “anarchists,” “knuckleheads,” “troublemakers,” and union brothers and sisters) in the streets. They singled out legal observers, medics, and other identifiable organizing leaders for arrests and beatings, in a vicious campaign to stomp out the views of people who disagree with them. The overtly violent tactics and disregard for legal requirements in the Miami police riot have been described by eyewitnesses as significantly worse than even previous post-Seattle street battles of the Global Justice Movement, around the 2000 Republican Convention in Philadelphia (Timoney’s former assignment), the Democratic Convention in Los Angeles, New York City on February 15, 2003 (the day the world said no to war), and so on. Does anybody doubt, or even need to ask, how such paramilitary security forces (“police” is almost as misleading as “free trade,” at this point) will handle protestors in New York at Bush’s Republican coronation next year? Everywhere people have the courage to publicly say “the Emperor has no clothes” is likely to see application of “the Miami model” to crush dissent. Incredible as it may seem, even historic Supreme Court decisions by the likes of Antonin Scalia, William Rehnquist and Clarence Thomas, about whether or not their patrons Bush, Cheney, Ashcroft & Co. can lock up people they don’t like – in total secrecy – and throw away the key, may not be the greatest of our worries just beyond the horizon of this holiday season. And no holiday revelers, as you probably guessed already, that’s not all. Not by a long skin-piercing rubber bullet shot.

Tommy Franks on Freedom and Liberty

While the mainstream corporate media were studiously ignoring the atrocities in Miami, right wingers were having a field day on the internet speculating about the possible death of US constitutional democracy in the coming year. It was probably inevitable that we would see this kind of political turmoil in the years after September 11, 2001. Most recently, the pot was vigorously stirred by some choice tidbits from a very long interview that retired General Tommy Franks, leader of the Afghanistan and Iraq invasions, gave to “Cigar Afficionado” magazine (hold the Clinton-Monica jokes, please). Franks reportedly lamented the western world’s likely loss of “freedom and liberty,” in the event of a major terrorist attack on the US, using “a biological, chemical or nuclear weapon that inflicts heavy casualties.” He speculated openly about how the nation’s reaction to such a tragedy, on an even greater scale than the September 11 attacks, could begin “to unravel the fabric of our Constitution.” Such analysis coming from a man in Franks’ position, though he was apparently sleeping through much of the unraveling that has already happened since 9/11, is very strong stuff indeed. And surveys of corporate and government security leaders indicate dourly that the vast majority of them fully expect such a major terrorist attack on the US “homeland” at some point. With the political bonanza Bush reaped after September 11, it’s hard to see how his administration could feel compelled to do much to prevent it, especially if they’re pushed to the wall in the 2004 presidential campaign, by the bloody fruits of their stunning incompetence and greed in Iraq.

So that’s the big holiday picture in the thick of shopping madness this year: A good retail season means a good economy, and Bush will be reelected so that the rich can complete the corporate takeover of everything. If anyone tries to stand up to them, there’s millions of Fatherland Security dollars available for breaking heads with robocops, tear gas, pepper spray, rubber bullets, tazers, concussion grenades, and the other accouterments of a police state. And if worse comes to worst, the Iraq fiasco continues to spiral out of control, perpetuating investment jitters and holding back economic growth on proper corporate principles, there’s always the option to cancel the damn election and declare martial law, for reasons of state.

On February 27, 1933, someone bombed one of Berlin’s most prestigious buildings, the German Parliament, in the famous “Reichstag fire.” A heroic national leader rushed to the scene and called a press conference, declaring “war” on terrorism “and its ideological sponsors.” Two weeks later the first detention centers for terrorists were built. With the Leader justifying his actions based on what he claimed was a deep Christian religious faith, the German Reich’s security policies rapidly developed into a full-blown fascist corporate military state. Surely we’ve passed through the notion of “it can’t happen here,” to a bitter taste of the reality on the other side. It worked for Hitler after the infamous “Reichstag fire” incident. It can certainly work for Karl Rove & Co., who have lots more money and even better disciplined, more powerful weapons of mass deception in the corporate media.

Happy holidays, be safe, worship the God(dess) of your choice. Peace, health and joy be unto you and yours, and all of us. And many happy returns for a militant hell-raising, justice-seeking, Bush-dumping new year. The democracy you save may be your own.

TOM STEPHENS practices law in Detroit, Michigan. He can be reached at: lebensbaum4@earthlink.net


Tom Stephens is a volunteer educator for the Detroit Independent Freedom Schools Movement (DIFSM) and a Peoples lawyer in Detroit.