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Arbitrary Imprisonment: a Symbol of Tyranny

by MIKE WHITNEY

 

“The very core of liberty secured by our Anglo-Saxon system of separated powers has been freedom from indefinite imprisonment at the will of the Executive.”

Judge Antonin Scalia

The results of the Padilla case pose “a unique and unprecedented threat to the freedom of every American citizen… At stake is nothing less than the essence of a free society… For if this Nation is to remain true to the ideals symbolized by its flag, it must not wield the tools of tyrants even to resist an assault by the forces of tyranny.”

Judge John Paul Stevens

By refusing to hear the Padilla case the Supreme Court condemned an innocent man to continued incarceration without any opportunity to challenge the terms of his detention. Their refusal serves as a de facto guilty verdict and overturns the long held principle of “guilty until proven innocent.”

Additionally, their ruling reinforces the muddled position of the Bush Administration that prisoners in the apocryphal war on terror can be dispatched as “unlawful combatants”; the spurious rhetoric that is without any legal meaning.

Months earlier, the 2nd Court of Appeals dismissed the nonsensical category that was invented by the Bush Administration and ruled that Padilla be released immediately. That ruling was ignored by the Administration, and the case made its way to the High Court.

Now the “felonious five” have again paid homage to the executive by refusing to try the case on its merits. Instead, they have returned the case to the lower court for review without even addressing the fact that Padilla has been deprived of all due process rights.

Their response can only be construed as a complete victory for the administration who (although they could not get the court to openly overturn the Constitution) achieved the very same result; “imprisonment into perpetuity” without any way of disputing his internment.

It is impossible to overstate the significance of the Padilla case. By any objective standard, it is the most important case in the history of the court.

This is no exaggeration.

What makes it so extraordinary is that, in its essence, it does not merely deal with “what rights citizens have” or “what the parameters of those rights are” but, “whether or not citizens have rights at all.”

Remember, Padilla has not been deprived of particular rights …He has been stripped of ALL his rights. As yet, he hasn’t even been charged with a crime; just the periodic and prejudicial allegations from a Justice Dept that has worked tirelessly to demagogue the case.

Bush is making the untenable claim that he may dispose of all constitutional protections and imprison suspects indefinitely ENTIRELY AT HIS OWN DESCRETION.

If this is so, then “inalienable rights” are nothing more than provisional gifts of the state which can be removed at the pleasure of the President.

This, in fact, is the president’s view on the matter.

It is a perspective that is openly shared by the majority of the court who have endorsed this position by default.

Their message is quite clear; THEY WILL NOT DEFEND EVEN THE MOST BASIC TENANTS OF THE CONSTITUTION, but will defer to the executive as the sole arbiter of justice.

We are no longer a nation of laws; the Padilla case proves that convincingly.

There were warnings of this earlier in the Court’s history. This same court refused to instruct Vice President Cheney to release the Energy Task Force papers to the public. These documents certainly would have shed light on the manipulation of energy markets in California, as well as, exposing the 60 oil companies who colluded with Cheney in dividing up Iraq’s oilfields and, ultimately, leading the country to war.

The content of these papers is clearly in the public interest and the Court’s refusal to force their exposure demonstrates the depth of their venality.

Similarly, but more spectacularly, this is the same court that subverted the democratic process by applying a cynical reading of the 14th Amendment to overturn the 2000 election. By invoking the “equal protection” clause to suspend the counting of votes in Florida, the court established its partisan bone fides and savaged the foundational principle of democratic government.(the right to have one’s vote counted)

In this regard, the Padilla case just finishes the work that began long ago; dismantling the institutions of self-government. By eviscerating the safeguards that protect the citizen from the vagaries of the state, the court only adds to its litany of dubious triumphs.

“Arbitrary imprisonment” remains the enduring symbol of tyranny. (Apologies to Alexander Hamilton)

Justice will not be restored until the five loathsome occupants of the present court are duly impeached and removed from the bench.

MIKE WHITNEY can be reached at: fergiewhitney@msn.com

Thanks to Jennifer Van Bergen’s Counterpunch article “The Death of the Great Writ of Liberty” for the Scalia quote

Thanks, also, to Marc Norton’s Counterpunch article “The Supreme Court and Enemy Combatants” for Steven’s quote

 

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MIKE WHITNEY lives in Washington state. He is a contributor to Hopeless: Barack Obama and the Politics of Illusion (AK Press). Hopeless is also available in a Kindle edition. He can be reached at fergiewhitney@msn.com.

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