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Rumsfeld and Scalia’s Pre-emptive Strike on the Rule of Law

by MIKE WHITNEY

 

The basic purpose of the Law is to protect the individual from the violence of the state.

Judges who refuse to defend this fundamental principle must be removed from the bench. Free societies simply cease to exist beneath the shadow of arbitrary imprisonment.

When the Supreme Court finally ruled on the Yasir Hamdi case, America’s liberals were overcome with rapture. The cascade of praise came in all directions.

“At long last the Court had put Bush in his place,” progressives sighed. “Certainly, the judges could see that the President had ‘overstepped’ his authority by stripping an American citizen of his Constitutional rights and dispatching him to prison for two years without due process.”

“Thank God for an independent judiciary….Hurrah, the system works!”

This summarizes the tone of the articles that filled American newspapers following the court ruling. The sense of relief was palpable and the expressions of joy bordered on ecstasy.

There were only a few voices of skepticism darkening the pages of “lefty” web sites with their professions of gloom.

The ruling was not what it seemed to be, and, the media did an admirable job in concealing its real meaning. As Jennifer Van Bergen says in her recent Counterpunch article “The Death of the Great Writ of Liberty“:

“Hamdi v. Rumsfeld, the unlawful enemy combatant case, is of greater importance to the future of this country than many realize. But the Supreme Court decision is full of contradictions and deceptions. On the one hand, the Court upheld the right to due process. On the other, the Court determined that an “appropriately authorized and properly constituted military tribunal” with truncated procedures might suffice.”

As we can see from the bizarre and secretive proceedings now taking place at Guantanamo Bay, Van Bergen was right on the money. Rumsfeld has taken the ruling as a green light to run inmates in front of a “hand picked” team of officers who will decide their fate. This, he believes, will satisfy the requirements of the court as far as upholding their guarantee of Habeas Corpus.

The tribunals render Habeas Corpus (the oldest and most sacrosanct of our constitutional rights) meaningless. Going before a military panel is simply not comparable to appearing in front of a federal magistrate. No one (excluding the current members of the Supreme Court) would even dream of making such an absurd claim.

Detainees appearing in the tribunals are not questioned as to whether they have been tortured or abused (as they would be in front of a federal judge) and the three member panel cannot act expeditiously to release the prisoner if there is no basis for the charges against him.

Moreover, the tribunals are being convened more than two years after most of the detainees were originally imprisoned. Habeas Corpus guarantees that prisoners are quickly processed to insure that innocent men are not illegally detained.

The notion of “justice delayed, is justice denied”, applies to the faithful rendering of Habeas Corpus.

The American media misconstrued the Supreme Court ruling. Every critic and reporter in the country (without exception) took the ruling to mean that the detainees would have the right to appear before a federal judge.

Not so.

Now the Dept of the Navy, under the supervision of Sect. of the Navy Gordon England (former executive vice president of General Dynamics Corporation, and former executive vice president of the Combat Systems Group) is processing detainees behind closed doors and dispatching them as “enemy combatants” without any public review. (Note: The 2nd Court of Appeals rejected the spurious language of “enemy combatant” as having no legal meaning during “Padilla vs. Rumsfeld” more than a year ago. Rumsfeld has stubbornly stuck with this classification in his rewriting of the law. The classification implies that the detainee cannot claim POW status and may be confined indefinitely without charges)

The categorizing of detainees as “enemy combatants” is a severe blow to idea of the rule of law. The question of “what constitutes tyranny” is decided on the issue of arbitrary imprisonment. Whenever, the state assumes the right to imprison suspects without charging them with a crime, that state, by definition, is a tyranny.

Regardless, of the legalistic, mincing of words, “enemy combatant” implies the complete suspension of all human rights and civil liberties according to the whims of the executive; it is where the law ends and oppression begins.

These proceedings have been widely derided as a sham and some of the naval attorneys have (reportedly) refused to participate.

The evidentiary rules are entirely inverted, creating a system where it is impossible to mount a serious defense.

The defendants are unable to see the evidence that is being used against them, the government is allowed to admit hearsay evidence, there’s no practical way to summon witnesses to the defense, and gathering evidence or interviewing witnesses is a virtual impossibility (three years after the war.)

These are just some of the glaring deficiencies of the Rumsfeld tribunal system.

We should also consider the fact that the panel is comprised of three judges picked by the Secretary of the Navy (not appointed by a bipartisan Senate) which calls into question their ability to be impartial. The fate of the detainees lies entirely in their hands.

There is no appeal.

(We can assume that Rumsfeld has a stake in the outcome of these proceedings as well. Since all of the detainees released have alleged torture and abuse, a “guilty” verdict would undoubtedly serve his overall interests)

So far the tribunals have classified four detainees as “enemy combatants”. They will continue being held in their 5ft. by 7ft. “windowless” cells at Guantanamo Bay into perpetuity without any further means of challenging their internment.

The process is so entirely opaque we have no way of knowing whether the convictions were arrived at properly or consistent with the basic principles of jurisprudence. It is a system that relies on “trust” rather than transparency.

The tribunals are designed to circumvent international humanitarian law, the Geneva Conventions and the Constitution. The ability to challenge the terms of ones incarceration is the fundamental principle of free societies. The tribunals do not meet that benchmark. Rather they initiate a regime of “arbitrary imprisonment” that signals a seismic shift in our judicial system. It is, in fact, the demise of anything remotely resembling justice.

James Madison, who was unabashedly afraid of the “tyranny of the majority”, (cynically) saw the Supreme Court as a “bulwark against democratic attacks.”

Today’s jurists take it one step further by simply dismantling the institutions that protect the individual from the criminal conduct of the state.

Perhaps, Justice Scalia (inadvertently) summed it up best, (recorded by Van Bergen) We “can point to no case or other authority for the proposition that those captured on a foreign battlefield . . . cannot be detained outside the criminal process.”

The operative phrase here is “outside the criminal process.”

The charade that is taking place in Guantanamo stands entirely “outside the criminal process”. It stands outside the law, as well. Rather it mimics Stalin’s “show trials” of the 1950s; that stilted burlesque of courtroom drama that made a parody of legal proceedings. More ominously, it reveals the contemptuous attitude of the Bush Administration to even minimal standards of justice.

(Note: As for Yasir Hamdi: the US is presently engaged in talks with Saudi Arabia to see if they will accept Hamdi under the condition that he is kept under constant surveillance. If Hamdi agrees to the deal he will be forced to renounce his US citizenship and promise that he will not sue the US government at some future date.

Stripping citizens of their citizenship and deportation were two of the more controversial provisions in the Patriot Act 2. It’s clear that the Bush Administration wants to go forward with their plan to establish an important precedent.

For now, Hamdi still remains in a Navy brig in Norfolk, VA as he has for more than two years. He has never been charged with a crime.)

Thanks again to Jennifer Van Bergen. Her article “The Death of the Great Writ of Liberty” is a must read for anyone who wants a better idea of how the Bush Administration is subverting the rule of law.

MIKE WHITNEY lives in Washington state. He can be reached at: fergiewhitney@msn.com

 

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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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