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Dead Constitution See other Dead Constitution Articles Title: The Lie of Law: Courts Bow to State's Raw Power I. It is often forgotten how "legal" the Nazi regime in Germany really was. It did not take power in a violent revolution, but entered government through the entirely "legal" procedures of the time. The "legal" vote of the "legally" elected Reichstag gave Adolf Hitler the powers to rule by decree, thus imparting strict "legality" to the actions of his government. Indeed, there were several cases when those who felt the government had overstepped the bounds of law in a particular instance actually took the Nazi regime to court, and won. Why? Because the government was bound by "the rule of law." And the fact is, almost the entire pre-Nazi judicial system of the German state remained intact and operational throughout Hitler's reign. The "rule of law" carried on. Of course, as the Nazi regime plowed forward with its racist, militarist, imperialist agenda, this "rule of law" became increasingly elastic, countenancing a range of actions and policies that would have been considered heinous atrocities only a few years before. This trend was greatly accelerated after the Regime -- claiming "self-defense" following an alleged "invasion" by a small band of raiders -- launched a war which soon engulfed the world. Naturally, in such unusual and perilous circumstances, jurists were inclined to give the widest possible lee-way to the war powers of the state. After all, as one prominent judge declared, the war had pushed the nation “past the leading edge of a new and frightening paradigm, one that demands new rules be written. War is a challenge to law, and the law must adjust." -- No, wait. I must apologize for my mistake. That last quote was not, in fact, from a German jurist during the Nazi regime, but from a ruling issued this week by the United States Court of Appeals for the District of Columbia Circuit -- one of the highest courts in the land. The quoted opinion -- written by the legally appointed Judge Janice Rogers Brown -- was part of a sweeping ruling that greatly magnified the powers of the government to seize foreigners and hold them indefinitely without charges or legal appeal. The court denied the appeal of Ghaleb Nassar al-Bihani, who has been held in captivity for more than eight years. What was his crime? He served as a non-combatant clerk for a unit on one side of the long-running Afghan civil war. This war was fought largely between factions of violent extremists; Bihani had the misfortune to be serving in the army of the "wrong" faction when the United States intervened on behalf of the opposing extremists in 2001. Jason Ditz summarizes the case well at Antiwar.com: Bihani was a cook for a pro-Taliban faction fighting against the Northern Alliance before the 2001 US invasion, and his unit surrendered during the initial invasion. The Yemeni citizen is accused of “hostilities against the United States” even though he arrived in Afghanistan nearly six months before the US invasion. Not only did his unit never fight against American forces, he was a cook who doesn’t appear to have ever participated in any combat at all. Despite this, he was declared an enemy combatant. Let's underscore the salient fact: Bihani never took up arms against the United States, was involved in no combat against the United States (or anyone else, apparently), played no part in any attack on the United States. Yet the court ruled that the United States can arbitrarily declare Bihani an "enemy combatant" and hold him captive for the rest of his life. But the eminent judges did not stop there in their entirely "legal" ruling. As the New York Times reports, they went to declare that "the presidential war power to detain those suspected of terrorism is not limited even by international law of war." And later: "the majority’s argument [is] that the president’s war powers are not bound by the international laws of war." Think of that. Let it sink in. The president's war powers cannot be constrained by the international laws of war. Whatever the Leader (no points for translating this term into German) decides to do in the course of a war is thus rendered entirely "legal." He cannot be accused of international war crimes because such things do not apply to him. With this ruling -- which is all of a piece with many more that have preceded it -- we are well and truly "past the leading edge of a new and frightening paradigm." What is most frightening, of course, is the obscene philosophy of machtpolitik -- the craven kowtowing to the demands of brute force -- that is embodied in Judge Brown's chilling words: "War is a challenge to law, and the law must adjust." Again, remember the context of this ruling. It deals with the Leader's power over foreign citizens in lands that the Leader's armies are occupying. The judicial "reasoning" expressed by Judge Brown could apply, without the slightest alteration, to the Nazi regime's various programs of mass killing and "indefinite detention" of "enemy" foreigners in occupied lands. The "resettlement" of Eastern Europe -- in order to provide for the "national security" of the German people and the preservation of their "way of life" -- did indeed require a pathbreaking advance into a "new paradigm" on the part of the law. The exigencies and challenges of the war demanded, as Judge Brown would put it, that "new rules be written." And so they were. Under the duly, officially, formally constituted German "law" of the time -- as interpreted and applied by obsequious jurists in the mold of Judge Brown and her fellow war power expander, Judge Brett Kavanaugh -- there was little or nothing that was "illegal" in the vast catalogue of Nazi wartime atrocities, including the Holocaust itself. The perpetrators were "only following orders," which had been issued by "legal" entities, acting through "legal" processes, under the direction of the "legal" executive authority, whose unrestrained war powers had been established and upheld by the "rule of law." Now this legal philosophy -- the primacy of raw, unaccountable power -- is being openly established by the highest courts of the United States. President Barack Obama, whose legal minions fought so ferociously to deny the appeal of the non-combatant captive, has been an ardent proponent and practitioner of this philosophy since his first days in office. His administration has proclaimed that the torturers of the Bush administration will not be prosecuted, because they were just following orders -- orders which had been issued by legal entities, acting through legal processes, under the direction of the legal executive authority, whose unrestrained war powers had been established and upheld by the "rule of law." II. It was not always thus. A few years ago, when writing of the "constitutional and moral issues raised by Bush's liberty-gutting 'unitary executive' dictatorship" (which Obama has enthusiastically continued and expanded), I ran across a Supreme Court ruling from December 1866 -- more than 140 years ago: Ex Parte Milligan. In this ruling, which grew out of the wartime excesses of the Lincoln Administration, the Court -- dominated by five Lincoln appointees -- was unequivocal: Constitutional protections not only apply "equally in war and peace" but also – in a dramatic extension of this legal shield – to "all classes of men, at all times, and under all circumstances." No emergency – not even open civil war – warrants their suspension. Even in wartime, the President's powers, though expanded, are still restrained: "he is controlled by law, and has his appropriate sphere of duty, which is to execute, not to make, the laws." As I noted earlier in the piece: It was a decisive ruling against a government that had far overreached its powers, stripping away essential liberties in the name of national security. The Justice who authored the majority opinion was a Republican, an old friend and political crony of the president who had appointed him. Even so, his ruling struck hard at the abuses set in train by his patron. He stood upon the law, he stood upon the Constitution, even in the aftermath of a shattering blow that had killed more than 600,000 Americans and almost destroyed the nation itself. This is what the Court decided: "The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism, but the theory of necessity on which it is based is false; for the government, within the Constitution, has all the powers granted to it, which are necessary to preserve its existence." The author was Justice David Davis, an Illinois lawyer appointed by Abraham Lincoln after helping run the campaign that gave his old colleague the presidency in the fateful 1860 election. (Davis was also, by a strange quirk of history, the second cousin of George W. Bush's great-grandfather.) By the time the Court issued its ruling, Lincoln was dead, but the after-effects of his ever-expanding suspension of civil liberties during wartime were still roiling through the courts, and through America's fractured society. The Milligan ruling was, in the words of legal scholar John P. Frank, "one of the truly great documents of the American Constitution," a "bulwark" for civil liberties, expansive and exacting in the Constitutional protections it spelled out. The ruling acknowledged that there are times when the writ of habeas corpus may have to be suspended in an area where hostilities are directly taking place – but even this power, they noted, was highly circumscribed and specifically delegated to Congress, not the president. Lincoln exceeded this authority on numerous occasions, increasing the scope of his powers until the entire Union was essentially under martial law, and anyone arbitrarily deemed guilty of never-defined "disloyal practices" could be arrested or silenced – in the latter case by having their newspaper shut down, for instance. (Lincoln would sometimes – but not always – seek ex post facto Congressional authorization for these acts.) Some parts of the Union that the Lincoln administration thought particularly disloyal were officially put under martial law -- such as southern Indiana, where anti-war agitator Lambdin Milligan and four others were accused of a plot to free Confederate prisoners, and were summarily tried and sentenced to death by a military tribunal. It was this case that the Court – five of whom were Lincoln appointees – overturned in such a decided fashion. As noted, that ruling was made in a nation still reeling from a savage, titanic war fought on its own territory. Even in the midst of such turmoil, the idea that "the laws must adjust" to the exigencies of war -- even the extremity of ruinous civil war -- was considered anathema, even to conservative jurists with close ties to the government. But no longer. Although, unlike a civil war, even the worst terrorist attack imaginable would pose no existential threat to the nation, today the merest whisper of the possibility of a limited terrorist incident shakes the United States to its foundations -- and people willingly line up to be stripped naked by machines, while courts crawl on their bellies before the terrible majesty of unrestrained executive power. Be assured: the "rule of law" means nothing, protects nothing, sustains nothing. It can always be twisted and stretched by cowards, courtiers and power-seekers. Arthur Silber, as he does so often, cuts to heart of the matter in this powerful essay from 2009, "Concerning the State, the Law, and Show Trials": The law is not some Platonic Form plucked from the skies by the Pure in Heart. Laws are written by men, men who have particular interests, particular constituencies, particular donors, and particular friends. ... Laws are the particular means by which the state implements and executes its vast powers. When an increasingly authoritarian state passes a certain critical point in its development, the law is no longer the protector of individual rights and individual liberty. The law becomes the weapon of the state itself -- to protect, not you, but the state from threats to its own powers. We passed that critical point some decades ago. The law is the means by which the state corrals its subjects, keeps them under control, and forbids them from acting in ways that the overlords might perceive as threatening. In brief, today, in these glorious United States, the law is not your friend. Indeed it is not. In our "low dishonest" century, the "rule of law" has become the "lie of Authority" that Auden speaks of. It will not save us. What matters -- as always -- is moral courage in the face of power's encroachments. Sometimes this can be found within an institutional framework, as in the Supreme Court's bold expansion of legal rights to all people, "at all times, and under all circumstances" back in 1866; and of course it can be found in the lives and actions of individuals, acting singly or in concert. Auden again: Defenseless under the night Our world in stupor lies; Yet, dotted everywhere, Ironic points of light Flash out wherever the Just Exchange their messages: May I, composed like them Of Eros and of dust, Beleaguered by the same Negation and despair, Show an affirming flame.
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#5. To: sneakypete (#0)
-- No, wait. I must apologize for my mistake. That last quote was not, in fact, from a German jurist during the Nazi regime, but from a ruling issued this week by the United States Court of Appeals for the District of Columbia Circuit -- one of the highest courts in the land. The quoted opinion -- written by the legally appointed Judge Janice Rogers Brown -- was part of a sweeping ruling that greatly magnified the powers of the government to seize foreigners and hold them indefinitely without charges or legal appeal. Pete, I have seen you post many times how much you like Judge Brown and would vote for her for president. Given this ruling, that puts the president above the Constitution and any law whatsoever, would you still vote for her?
Of course. It doesn't put the president above anything because foreigners are NOT US citizens,and they aren't protected by the US Constitution. We aren't a global empire. The rest of the world does not come under our judicial code,so it stands to reason that the rest of the world isn't protected by our judicial code and our Constitution.
What if she applied that same reasoning to American citizens? You know that Bush had people detained as "enemy combatants" who were actually American citizens. I think she went too far with her ruling, giving the president powers unsupported by the Constitution.
That's not as black and white as you make it sound. The guy or guys that were detained were American citizens that were caught actually fighting against American forces in the Middle East. I am pretty sure,but not positive,that treason is justification for negating your citizenship. Not to mention that they were caught as irregulars not wearing uniforms,and as such it was perfectly legal under the Geneva Convention for the troops that caught them to just shoot or hang them on the spot. I do know that my personal thoughts on this is the SOB's SHOULD have had a bullet put in their heads on the spot,so don't expect me to worry too much about the rights they threw away by leaving the country to join a movement dedicated to destroying America. I think she went too far with her ruling, giving the president powers unsupported by the Constitution. The president can do any damn thing he wants to hostiles captured outside the territory of the US. This is why they put them in prison in Cuba.
Don't get me wrong--I have no sympathy for them except that I know when the rights of ANY American citizen can be violated with impunity the next one could be you or me. Sure, it would have been fine if they had been shot if they were actually on the battlefield fighting against Americans and I would have no problem with that. But I have a problem with Bush or Obama, any of them, who think the Constitution does not apply to them and that they are immune when they violate it. They should never be allowed to feel that way.
Absolutely. I will never understand why more people can't see this. But I have a problem with Bush or Obama, any of them, who think the Constitution does not apply to them and that they are immune when they violate it. I agree,but neither has violated the Constitution when it comes to this ONE thing. The US Constitution flat just doesn't apply outside the US. US law doesn't apply outside the US.
Calling American citizens "enemy combatants" and holding them without any due process for years and years is not a violation of the Constitution?
No. Not when they are caught carrying arms for a enemy in a foreign country. It would be different if they had been arrested here for their political beliefs or actions on US territory,but they weren't. They were caught in the middle east. The US Constitution isn't the law of the land in the middle east.
Wherever he was, he was an American citizen and entitled to due process. That's not taking up for him or defending what they claimed he did. And without a trial and proof shown to a jury that was all the government had, claims. No one should be locked up and held for years or even weeks without charges and a trial. If the government had plenty of proof for their claims then a jury would almost certainly have found him guilty. And if they didn't have enough proof to present the case to a jury maybe they should not have put him in jail.
Bullshit. American laws don't apply to Americans anywhere except for in America. And even in America members of the US military don't have the Constitutional protections of the average citizen. They come under the UCMJ,not the Constitution.
The law(s) of foreign nations apply to Americans when they are in those nations. I understand that very well. My point is that when the American government, or someone who is representing the American government, catches an American engaged in a crime, then that person should be charged with whatever crime they are alleged to have been violating and tried for it. Not held forever at the whim of a tyrant or someone who thinks he is God. Personally, I think that he should have been given a trial and, if the evidence was sufficient to a jury to find him guilty, he should have been shot. I am not taking up for anything other than an American citizen having his rights respected. I could be wrong and I acknowledge that. But I believe in treating others as I would wish to be treated myself and I want the government to respect my rights (not that they do but I think they should).
That right there gives away the root of your position. It's all about Obama,not the law. The FACTS are,as Bubba Barry found out himself,that these people were caught in foreign countries and haven't set foot on American soil since. The reason for this is obvious. They are in possession of military intelligence/knowledge that can be used to prevent American deaths,and it would be suicide to allow these people into the US and allow them to face US courts with US civilian lawyers. We need to keep them where we can control all access to them in order to find out what they know and to keep the enemy from becoming aware of what we have discovered. But I believe in treating others as I would wish to be treated myself and I want the government to respect my rights (not that they do but I think they should). Let me explain this in a way you will understand. I was a soldier in the US Army that ran recon and Hatchet Force combat assault missions in Laos and Cambodia during the VN war for MACV-SOG. It was a top secret covert operation at the time,and we were all volunteers. We could all quit and just refuse to go on a mission any time we wanted. We could do this because we were going into foreign countries while not wearing uniforms that immediately identified us as US soldiers,we had no dog tags,and we had no military ID card. We didn't even carry US weapons unless they had been reported as stolen. All of this made us ineligible for protection as prisoners of war if captured under the Geneva Convention,and we could have been legally executed on the spot or tortured to death at their leisure if they desired. Or they could just hold us prisoners forever in a slave labor camp and wouldn't even have to free us when the war ended. Now,if me and my friends could accept these circumstances FOR OURSELVES,WHY would you or anyone else expect us to think they were unfair when applied to a enemy that was operating under the same sort of circumstances and endangering American lives?
No, not true. It also applies/applied to Bush. To my knowledge he was the first president to order people jailed under the name "enemy combatant" and claimed the right to hold them for as long as he pleased. I don't believe the Constitution gives anyone any such power. As for what foreign governments do, or don't do, there is much wisdom in that old saying, "Choose your enemies carefully, for you will become like them."
Well,both Lincoln and Roosevelt did the same thing,and it may have been done during the Revolutionary War and the War of 1812 for all I know. I don't believe the Constitution gives anyone any such power. The Constitution doesn't have anything to say about what a president can do to enemy combatants captured off US soil. He could have legally burnt them all at the stake if he had wanted,and it would have been Constitutional because Congress authorized him to wage war even if the cowardly bastards refused to have a vote and issue a formal declaration of war.
Well, two fine gentlemen like that who would never, ever violate the Constitution. I stand corrected. Seriously, the Constitution tells the people in government what they CAN do, not what they cannot do. If there is no power listed then none was given to them.
Ahhh,sarcasm the way I like it,bold and on target.
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