6-30-06, 8:56 am
The Bush administration’s flouting of the Geneva Convention has been an important issue globally, from its arrest of citizens of European countries to its 'rendition' of terrorist suspects to Egypt and other countries where they have been tortured in order to obtain information. (These actions are reminiscent of 19th and early 20th century European countries with liberal laws that paid to have certain prisoners, particularly political prisoners, sent to Czarist Russian prisons.)
While anyone who supports elemental democratic and human rights should applaud the majority decision, drafted by Judge John Paul Stevens, a liberal Republican appointed at a time when such people existed by President Gerald Ford over 30 years ago, we all should be very vigilant to the present danger. The Justice who replaces Stevens, rumored to be the next Judge to retire for reasons of age and health, will radically undermine the rights of the American people, the Constitution, and the nation’s following international law if the right-wing Republicans are not defeated in the congressional elections this year and in the presidential elections in 2008. Chief Justice John Roberts recused himself in the case, because he previously had supported the Bush administration’s position as an appeals judge. This means that the real vote was 5-4, and had Stevens not been sitting on the bench, Bush’s power to establish such courts along with using other extra legal bodies to carry out wiretaps and other searches and seizures without warrants would have been upheld.
The danger was most evident in the truculent minority decisions of two veteran ultra-rightists, Bush appointee Clarence Thomas and Reagan appointee Antonin Scalia. Thomas, who read his dissent, stated that the decision would 'sorely hamper the president’s ability to confront and defeat a new and deadly enemy.' His rationale ignores that the term 'war against terrorism' is used to confuse Americans about the differences between occupations of foreign territories and efforts to protect people from small groups of criminal conspirators.
Scalia, known for the sort of arrogance that would not sit well with judges were he not a Supreme Court Justice, stated in defense of Bush’s self-serving claims that the special courts were necessary to fight terrorism, and argued that 'it is not clear where the Court derives the authority – or the audacity – to contradict this determination.'
What is Scalia talking about? Judicial review, which usually is used to defend wealth and power against rulings by the states, Congress, and the president upholding peoples rights, is in principle a defense of the law and the constitution against the sort of arbitrary power that is the foundation of tyranny and dictatorship.
The Bush administration’s claim that it has this power, given to it by Congress in perpetuity as a kind of inheritance, makes dictatorship rather than tyranny the more accurate and precise term to apply to what it is trying to do. Tyranny can act in all kinds of direct and indirect ways over long periods of time, but dictatorship almost always operates through a 'state of emergency,' and martial law decrees rubberstamped by the existing authorities until the dictatorship is ousted one way or another.
The existing German Reichstag of 1933 (with its legally elected Communist deputies purged and imprisoned) voting Hitler the power to abolish all mass organizations and parties except the Nazi party and rule by martial law is the best example of dictatorship established through official channels in modern history. The rationale for Hitler gaining this power was the burning of the Reichstag, the German parliament building (like the houses of Congress here), which the Nazi led government blamed on the German Communist Party and the Communist International (Comintern) as part of a Soviet directed plot to literally drown Germany in a wave of revolutionary terror and murder.
There were no courts in Germany that had the 'audacity' to 'contradict' Hitler as he set up concentration camps for his political enemies (Communists and to a lesser extent Social Democrats) destroyed the entire free labor movement, and launched savage persecutions of the Jewish-German minority that eventually led to genocide directed during WWII against the entire Jewish population of Europe.
While this decision is a victory for what conservatives in the U.S. used to call 'the rule of law,' even though those in the Bush administration who call themselves 'conservatives' use the label as a shield for what fascists in the past called their 'will to power,' no one should be satisfied with this temporary victory.
Given the balance of forces on the Supreme Court today, Bush is one vote away from sustaining his power to have special courts indict, try and convict suspected foreign terrorists without habeas corpus, right to counsel, any due process protections, or adherence to the rules of evidence.
In short, everything that the American Revolution fought to establish and everything that has characterized American constitutional government for more than two centuries may be suspended when foreign terrorist suspects are involved. From there it is a short distance to applying those criteria to U.S. citizens who are domestic 'terrorist suspects,' creating a new 'Attorney General’s List ' of 'domestic terrorist organizations' that will include a wide variety of political opponents of the Republican Party on a wide variety of issues as the Truman administration did in 1947 to fight its enemies on the left—perhaps even reviving the political 'detention' (concentration) camp provisions of the McCarran Internal Security Act of 1950 and preparing lists of large numbers of Americans to seized and placed in such camps, in this case on presidential orders that, as Justice Thomas put it, are necessary to 'confront and a defeat new and deadly enemy.'
The 'deadly enemy' we confront are those who have placed Thomas, Scalia, Roberts, and Alito on the Supreme Court, stolen presidential elections, and pursued foreign and domestic policies that violate U.S. and international law.
The terrorist groups they claim to be fighting are the creations of their 'low intensity war' in Afghanistan in the 1980s and their support for the feudal reactionary viciously anti-Christian and anti-Jewish Saudi Arabian monarchy, whose oil money provides the background for both the right-wing terrorist leadership and the fundamentalist religious schools through the Muslim world which provide that leadership with foot soldiers.
These enemies, whom no one wants to lock up in Guantánamo without elemental civil rights, have suffered a defeat today, but no one can rest easy until they are politically defeated and all branches of the federal government liberated from them.
Nor can anyone really expect Al Qaeda and other terrorist groups that previous right-wing U.S. policies created and aided to be seriously fought until we have a progressive government in the U.S. that will not be beholden to transnational oil companies and protectors of reactionary regimes in Saudi Arabia and Pakistan who themselves are protectors of the terrorist groups, the 'new and deadly enemy' whom the Bush administration claims to be fighting.
--Reach Norman Markowitz at
