The Hamdan v. Rumsfeld Supreme Court decision may be a setback for the Bush agenda in the legal arena, but it does not mean that some mythical pendulum has swung society back to “normal” or balance between the three branches has been magically restored.
By RJ Schinner, 6/30/06
Since 9/11, the Bush regime has been shredding the rule of law that has been the governing norm in the US for the last 200 years, arrogating increasing unchecked power to the executive branch, and cementing new police state measures and the architecture of fascism into place while at the same time violating international law in its pursuit for empire around the world. Round-ups, special registrations, and mass deportations were forced on tens of thousands of Muslim, Arab, and South Asian immigrants, making whole sections of the population live in fear. The Patriot Act, recently made permanent by Congress, codifies as law unprecedented police state measures too numerous to list in this article. Massive surveillance databases collect information on millions of Americans, often in secret and without warrants. Bush himself has issued over 750 ‘signing statements’, allowing him to re-interpret, change, or ignore laws passed by Congress. Torture has become official government policy. A new legal category called ‘enemy combatant’ has allowed the President to detain anyone he wants, without trial or access to lawyers, and completely outside of international law.
Whatever one thinks of traditional American democracy and the Constitution, the Bush regime is clearly departing from them, and establishing a whole new set of governing norms in which arbitrary executive decree and fascistic measures become the law of the land. And they have already gone quite far in hammering this into place.
Thursday’s 5-3 Supreme Court decision in the case of Hamdan v. Rumsfeld was a clear setback in the legal arena for the Bush regime’s attempts to radically remake society. Amidst widespread exposure of and worldwide public opinion mounting against the daily torture, inhumane conditions, and lack of basic legal rights of detainees at Guantanamo Bay, the Supreme Court ruled that the Bush regime cannot simply try detainees in military tribunals. The Court based its decision principally on the fact that Congress had not authorized these tribunals, in addition to the fact that the tribunals do not meet the requirements of Common Article 3 of the Geneva Conventions, in which detainees must be treated humanely and given a trial ‘affording all the judicial guarantees which are recognized as indispensable by civilized people’. While the decision does not require that detainees be given all the legal rights in American courts, it does take issue with Bush’s military tribunals for not giving the defendant the right to attend the trial, as well as the hearsay evidence, unsworn testimony, and evidence obtained through coercion the prosecution is allowed to use.
Not a Pendulum Swing Back to Normal
While this Supreme Court decision presents an obstacle for the Bush agenda, it does not put a halt to this regime’s detainee policy, nor does it signify some mythical pendulum swing back to normalcy or a restoration of the balance of powers.
Hamdan v. Rumsfeld does have potentially widespread legal implications, it does not prevent the President from detaining whomever he wants, nor does it shut down the detention center at Guantanamo Bay. And already, Bush and his allies in Congress are working to hold their kangaroo courts in such a way that meets the Court’s decision.
In a joint statement opposing the Supreme Court’s ruling, Republican Senators Lindsey and Jon Kyl promised to ‘pursue legislation in the Senate granting the Executive Branch the authority to ensure that terrorists can be tried by competent military commissions.’ Bush’s response was also to push for Congress to pass a law allowing for military tribunals that conform to the Supreme Court’s decision.
If such a law makes it through Congress, which recent experience shows is quite likely, it will only put a rubber stamp on military tribunals which strip detainees of basic legal rights, and continue to put increased power in the hands of the ‘say-so’ of the president. Moreover, this will continue a pattern in which whenever Bush’s draconian executive orders run into legal problems, the answer is to rewrite the law to allow the administration to do what it wants. This has been Congress’ answer to the NSA spying, the Patriot Act, torture, etc., and while the laws may be slightly less extreme than Bush’s executive orders, they have the effect of codifying as legal fascistic measures and blatant war crimes.
What’s worse is how the national political dialogue becomes one of accepting torture, detention without trial, and the whole logic of the ‘war on terrorism’ while at best raising a few petty criticisms. No one in Congress or on the Supreme Court bench has stood up and unequivocally opposed the numerous war crimes this regime has committed, and when criticisms are made the concern comes down to ‘American credibility’ abroad or whether the policy in question will work to ensure US military domination. When this reactionary political dialogue in the halls of power sets the terms of debate among the people, it only leads to a quiet acceptance of crimes that would otherwise shock anyone’s moral conscience.
Remaking the Judiciary
While many look at the Hamdan v. Rumsfeld decision as a restoration of the balance of powers, when you step back and look at what’s going on in the federal judiciary, as well as in this case, the reality is to the contrary.
Catherine Crier’s How the Right is Wronging American Justice documents how the federal judiciary is being taken over by judges bent on establishing a theocracy in the US. Bush consults with powerful and well-funded Christian fundamentalist organizations and leaders about his judicial appointments. The result has been to stack the courts with those who claim that America should be a religious country by law, regardless of what the Constitution or the actual history says. Crier, a former Republican judge, warns, ‘Be Afraid. Be Very Afraid.’
Along with making a narrow and hateful breed of Christian fundamentalism the law of the land, Bush’s appointments to the federal judiciary also stand out for their willingness to allow his administration to get away with torture (literally), and arrogate increased power to the executive branch. Samuel Alito, for example, advanced a whole theory called the ‘unitary executive’, in which power is concentrated in the executive branch at the expense of the other two branches.
Looking at Hamdan v. Rumsfeld in particular, the decision narrowly passed by one vote; Scalia, Thomas, and Alito dissented, while Roberts absented himself because he had already ruled in this case in favor of the Bush administration as an appeals court justice. The Supreme Court has been deeply divided in many recent decisions, and one more Bush appointee could mean all the difference. Displaying the bitter conflict on the bench, Justice Thomas did what he has never done in his 15 years on the Supreme Court: read his dissenting opinion aloud from the bench.
Stepping back, it is important to understand that the Constitution does not guarantee some timeless way in which the law will always be, but can be ripped up, ignored, amended, transformed, or re-interpreted depending on the interests of those in power at any given time. While there has been an established rule of law in the US since its founding, this itself has undergone profound change in the past 200 years. Slavery was once upheld, and discrimination against non-whites and women used to be codified as law. The way in which laws have been interpreted or carried out has never been fair and equal. But as society has undergone political, economic, and social changes, so too have the governing norms and laws. Any major progressive changes in the legal arena were not made at the behest of whoever is sitting on the bench, but were forced on those in power by massive social upheaval and resistance from below.
The changes in the legal arena and judiciary under the Bush regime are sweeping, and threaten to not only turn back the clock on any progress forced by resistance movements, but also rip up the rule of law going back hundreds of years. And while there is debate within the halls of power over just how far and fast to take this, there is no opposition to the whole direction this is going in. Just this month, 49 Senators voted for an amendment banning gay marriage; this would be the first time since the slavery existed and women were not allowed to vote that discrimination was written into the Constitution. And the Senate was short by only one vote of an amendment banning flag-burning, which would amount to writing restrictions on free speech into the Constitution.
It is illusory thinking to look at the Hamdan v. Rumsfeld decision and imagine that everything’s safe, and the balance of powers will put a check on the deadly trajectory of the Bush regime. The Supreme Court has already went along with much of this regime’s radical transformations in the legal arena ( just this month, overturning 90 years of established law, the Court ruled that police do not have to knock or announce themselves before conducting a search of someone’s home. Moreover, whenever the Bush regime does face setbacks, it only announces its determination to push ahead in imposing its agenda, and more than often is successful.
A Setback Yes, But They Need to Be Defeated
What has marked the political situation in the US following 9/11 has been that all the initiative is in the hands of a clique of neo-cons, theocrats, and fascist fellow-travelers ( the Bush regime is setting the terms inside the halls of power, and getting further ahead in its drive for unchallenged global empire and a fascistic and theocratic remaking of US society. But all this is not without its setbacks, problems, resistance, and intense conflict in Congress and the courts. Ripping up the governing norms and social glue of society cannot be done without lots of upheaval, including inside the government. While the Bush regime is powerful and dangerous, they do not have everything neatly locked into place, nor will everything just go according to plan. They thought they could go into Iraq and ‘finish the job’ quickly, and then move on to the next country on their hit-list; instead, they were met with intense resistance from the Iraqi people, and the war brought about opposition and instability throughout the Middle East.
The Bush regime’s recent setback in the Supreme Court will not put a stop to its agenda, but will sharpen up the conflict inside the halls of power. This kind of conflict can become a fissure through which resistance from below breaks through. Indeed, the main variable confronting this regime is what the people do; whether there is widespread and massive resistance that brings their agenda to a halt, or whether there is silence and acquiescence in the face of truly monstrous crimes. There is tremendous potential right now, before the Bush agenda is cemented into place and when conflict is breaking out among the powerful, for the very things this regime is doing to call forth massive opposition. But this opposition won’t just come about spontaneously; those who grasp the urgency of what is being done before our eyes must act and call on others to act like the future depends on it, because it does.
Counting on some mythical pendulum to swing society back to normal, or for ‘checks and balances’ to somehow reign in the Bush agenda will only make us blind to the reality of the situation. Holding out hope in a Democratic Party that shares much in common with the Bush agenda, and consistently refuses to fight when it does disagree will only leave us betrayed and demobilized (again).
The pictures of children massacred in Haditha, of tens of thousands of Black people left to die in New Orleans, or of detainees shackled and tortured at Guantanamo show just how intolerable this regime is. And looking underneath all this and seeing the sweeping fascistic changes all these crimes add up to show that this cannot be allowed to continue another day. If millions in the US begin to think and act in this way, the Bush regime will not just have a setback on its hands, but a defeat.
(Sources: ‘Justices, 5-3, Broadly Reject Bush Plan to Try Detainees’, NY Times, 6/30/06; ‘Senators move to reverse effects of Supreme Court decision against Guantanamo commissions’, RawStory.com, 6/29/06)
RJ Schinner is an organizer with The World Can’t Wait ( Drive Out the Bush Regime.
If the U.S. had decided to be a moral people, and leaving Iraqi oil alone, decided to develop the South Western deserts, with the technology of the times, solar/thermal installations, for the same amount of money as that war cost, today we would be tapping into the largest, renewable, sustainable, energy source the world has ever known. It would have paid every energy bill in the U.S.A. for maintenance fees only, FOREVER! It is an oil well that can never run dry! After the millions of murders, and billions of dollars borrowed from our children’s futures and spent, with thousands of our own and others maimed and disfigured for life, millions of families utterly destroyed, ours and theirs, we are no closer to Iraqi oil production than the Iraqis are!
The next time you hear a blithering idiot spoiled brat drunken drug addict rich little daddie’s boy sociopath stand at a microphone and threaten your safety with someone else’s weapons, remember what you lost America, remember, and weep!