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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.
Post Comment Private Reply Ignore Thread Top • Page Up • Full Thread • Page Down • Bottom/Latest Begin Trace Mode for Comment # 46.
#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.
Yet our military is stationed in more than 120 nations, but I'll meet you half way; we're a DYING global empire.
So what? Are they the controlling military and police forces there? Do they use force to control those nations,or are they there at the request of those nations to help them out? we're a DYING global empire. Wrong. We aren't and never were a Empire.
hahahahahaha Nations "request" our military in the same way the union shops in NJ welcome Tony Soprano in the front door for business advice. We're a nation who refuses, despite the will of the people, to defend our borders, but leap when tin horn dictators from countries whose names I can't pronounce request help. This was the way of Rome, Greece and the Third Reich. We're in such swell company because fools still salute the red, white and blood.
Nations "request" our military in the same way the union shops in NJ welcome Tony Soprano in the front door for business advice. BullBush. Try selling that to somebody who has never been on the "invitation list",not me. We're a nation who refuses, despite the will of the people, to defend our borders, Bullshit,again. You,I,and most of the others here may want this,but we sure as hell don't represent the "will of the people". Name ONE "brand name" politician from either branch of the ruling party that is against amnesty for illegal aliens. You can't. Even Sarah Palin,"the conservative hope for the future" is not talking about making a "path to citizenship for undocumented workers" and praising John McCain,the architect of McCain/Kennedy. If the majority of the voting public wanted the borders closed,they would be closed.
OK my globalist friend, please give us a list of a few dozen of the nations who have "requested" our military assistance and why. Please include the name of the head of state who requested such help, and to whom his/her plea was delivered to here in America. EDIT You,I,and most of the others here may want this,but we sure as hell don't represent the "will of the people". Name ONE "brand name" politician from either branch of the ruling party that is against amnesty for illegal aliens. Since when do politicians represent the "will of the people."? I can still recall Robert Dole during the NAFTA debate proudly stating that calls and faxes to his office were running 2,000 against to 1 for the passage of that mess. The bastards in DC are bought and paid for whores. The more than 500,000 people who gathered in the DC mall this past April 15th are a testimony to their arrogance.
You can kiss my ass for that snide comment. please give us a list of a few dozen of the nations who have "requested" our military assistance and why. You know them as well as I do,so why waste my time when all you are going to do is ignore any evidence I present because it doesn't fit your conspiracy theory mindset?
I hear ya', no answer. And yes, for you to defend our military in more than
120 nations makes you a gold plated globalist/imperialist.
Once again,you and your dogma can both kiss my ass. If you think I am going to waste my time listing 120 countries and then list the agreements they signed to allow us to have bases there so you can turn around and say the agreements weren't legal,you are further gone than I though. All you need to know is that when the French told us to get out,we got out,and when the Philippines told us to get out,we got out. That doesn't sound very empire-like,does it?
I asked for a half dozen, before your head exploded, but since you aren't capable of naming even one nation, let me help you with your globalist/empire dilemma. Lets take Japan some sixty years after their defeat. I suppose you'd say we're still there because their government wants us there. Well, duh.......why the fuck wouldn't they want us there? They haven't spent a nickle on their own self defense (as compared to their GDP) since globocop AmeriKa is willing to defend them on the taxpayers dime. Now tell me Mr. Sneaky, how the fuck does that arrangement benefit us?
Lets take Japan some sixty years after their defeat. I suppose you'd say we're still there because their government wants us there. Well, duh.......why the fuck wouldn't they want us there? They haven't spent a nickle on their own self defense (as compared to their GDP) since globocop AmeriKa is willing to defend them on the taxpayers dime. See? Even YOU are admitting we aren't there against their will. Now tell me Mr. Sneaky, how the fuck does that arrangement benefit us? It doesn't NOW. It did initially,since the goal was to rebuild a almost totally destroyed Japan with a western styled government that would eliminate the influence of the military and the Emperor,and make Asia and the world safer as a result. WE are the ones who wrote their Constitution and who demanded they only maintain a force large enough for self-defense,and not offense. A legitimate argument can be made that our providing Japan with her offensive war-making capability still serves the US because a Japan that is militarily weak is no threat to world peace or the US. One less armed enemy to worry about. Of course,the flip side is a Japan that doesn't have to invest very much of it's money on national defense is a Japan that has more money to invest in building themselves up domestically,and this gives them what amounts to a unfair economic advantage over the US. Is the current situation the ideal? No,it's not. The thing is,if there is a better way to accomplish our national goals in Asia,I'm not aware of it. I do know that just pulling our forces out of Japan is potentially VERY dangerous because the Japanese will either use the same determination they have used to become a world economic powerhouse to become a military power,or they will just replace us with the Chinese,who are destined to be the controlling power in Asia. Either result can be dangerous for America.
See? Even YOU are admitting we aren't there against their will. Admit? I had to answer the question for you, you blockhead. Now lets talk about why you, and other interventionist oafs, love to protect other nations in the name of American empire, while leaving our own nation in danger and broke. The US-Japan Mutual Security Treaty of '60 obligates the US to treat an armed attack against any territories of Japan as an attack on the United States. This includes the Senkaku(sp) Islands, which both China and Japan claim ownership of. Japan, however, is NOT obligated to treat an attack on the US or it's possesions with similar vigor. The treaty is a one way IOU which Japan gladly signed on to. So, some 65 years after the defeat of Japan, the 3rd? largest economy in the world, Japan, spends a mere 1% of it's GDP on defense, while relying on US to deal with Beijing and Pyongyang. The contingent of US forces being used as a trip wire are the cannon fodder of interventionist American politicians. That they'd be the first to die should the psychotic in N. Korea pop one too many pills is of no consequence to the men who cobble together such treaties. Shame on you for brushing off this "invitation" as anything less than expansionist insanity.
#47. To: Jethro Tull (#46)
Shame on you for calling the US a Empire.
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