June 11, 2007

Becoming accustomed to tyranny

"A federal appeals court ruled that the president may not declare civilians in this country 'enemy combatants' and have the military hold them indefinitely." New York Times, June 11, 2007.


We've arrived at a strange pass in American history when a ruling such as that of the 4th Circuit Court of Appeals is a "landmark" decision rebuking "Bush policy." You may not have been aware that George W. Bush was exercising the power described in the quoted holding from the 4th Circuit (generally, a conservative pro-Bush bastion). If you were not aware, you have not been following along as Jose Padilla, as one notable example, has made his way through a maze of military and civilian jurisdictions, all while Congressional representatives and senators, Republicans and Democrats alike, have sat passively and silently by while Bush & Co. have exercised police state power over ordinary citizens. It's a remarkable illustration of the principle that the only requirement for evil to flourish is for good men to do nothing.

Once upon a time in a magical land called America, there was a legal justice system. Without question, it was the finest in the world. Founded on the basic ideas of the English common law, it was as fair and effective a system as one would ever find anywhere, at any time in history. I think the legal system, in fact, was the pride and joy of the Founding Fathers. Many of them were talented lawyers, and the awesome edifice of Enlightenment protection embodied in the Bill of Rights stood the test of time. Despite external and internal threats during the first 225 years of American history, it was never necessary to abandon those principles, even if, in the case of Japanese internment and the disgraceful treatment of blacks, the rules were not applied with equal justice. But mostly, and even for the oppressed after the legal system corrected matters during the civil rights era, one could have confidence that, whatever your station in life and despite public outcries against you, you would get a fair shake. Your side of the matter would be heard. You would not be thrown in a dungeon, never heard from again, the doors to the court house locked.

Along came George W. Bush. To say he has been a bull in the china shop of American justice does not quite capture the wholesale wreckage he has inflicted on the system. We now know, from endless examples, that he doesn't know what he's doing. The damage, however, has come from his own personal confidence that he does. He has no comprehension how the whole legal system works, how interdependent the various statutes, rules of criminal and civil procedure, avenues of appeal, extraordinary writs, international law and treaties are. How they all interact in a time-tested, carefully considered system that produces the closest thing we can create to justice protecting society from the miscreant, and the individual from tyranny and mob rule. Bush has invented all kinds of new defendants, new categories, new courts, new jails. Enemy combatants, unlawful enemy combatants, al-Qaeda or Taliban-connected soldiers who become unlawful enemy combatants, American citizens labeled enemy combatants and disappeared into a brig (Padilla) or an actual 9-11 conspirator, a foreigner, tried openly in a civilian court (Moussaoui). Military commissions, offshore prisons outside the reach of habeas corpus (Guantanamo), review tribunals to determine whether an Arab is an unlawful enemy combatant where he is not allowed to challenge the evidence nor even to see most of it, nor to have his own lawyer present; restricted appeals to one designated federal court for an Arab unlawful enemy combatant convicted of a war crime on the basis of hearsay and purchased evidence, by a military tribunal created under the Military Commissions Act. Contravention of the simple and humane rules of the Geneva Conventions at every turn. A giant, stinking mess of contradiction, of open-ended incarceration for years and years without trial, without access to courts, without lawyers, without hope. All these Arabs prejudged as guilty, granted no rights, jailed for life without review by anyone.

That's the United States under Bush. It never would have happened that way before. The indifference of Congress ensures it will be that way from now on. Do you think there just might, someday, be some kind of blowback for this? Simply because Americans, with their famously fatuous proccupation with celebrity, with bulimic cases locked up for drunk driving, can't trouble themselves to worry about this, don't be lulled into thinking that more "primitive" societies, who pass on the message by word of mouth about what happened to their kinsmen, are not enraged. And God have mercy on any American soldier who falls into the hands of another "justice" system after all of this. We've sown the wind.

A china shop doesn't work. The bull, however, suggests shit. That might be the image. The American justice system, after Bush, will resemble a pair of old jockey briefs worn by a fat American pizza-eater. You find them, discarded, in the alley between houses. They are stiff with the skidmarks of shit. Flies buzz all around. The shorts don't look much like they did when they were taken out of the cellophane.

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