From Terry Gilliam’s landmark movie Brazil (1985):
T.V. Interviewer: How do you account for the fact that the bombing campaign has been going on for thirteen years?
Mr. Helpmann: Beginners’ luck.
It wasn’t beginners’ luck. Fiction has become reality.
Charles Lane writes in the Washington Post:
Whether designating an American citizen as an “enemy combatant” subject to military confinement, denying coverage under the Geneva Conventions to detainees at Guantanamo Bay, or using the National Security Agency to eavesdrop on domestic communications, Bush has said that the Constitution and a broadly worded congressional resolution passed three days after Sept. 11, 2001, empower him to wage war against terrorists all but unencumbered by judicial review, congressional oversight or international law.
The government has used one very severe case of terrorism to arrogate to itself unprecedented powers. It used to be that conservatives were inherently mistrustful of the government and were loathe to cede it powers. Here’s another quote from Brazil.
Sam Lowry: I only know you got the wrong man.
Jack Lint: Information Transit got the wrong man. I got the right man. The wrong one was delivered to me as the right man, I accepted him on good faith as the right man. Was I wrong?
That scene calls to mind the case of Jose Padilla.
On November 22, 2005,
CNN’s front page broke the news that [Jose] Padilla had finally been indicted
on charges he “conspired to murder, kidnap and maim people overseas.” [8]
Many news sources correlated the indictment’s timing as avoidance of an
impending Supreme Court hearing on the Padilla case: “the
administration is seeking to avoid a Supreme Court showdown over the
issue”. [9] [10] [11]
None of the original allegations put forward by the U.S. government
three years ago, the claims that held Padilla in the majority in
solitary confinement throughout that period, were part of the
indictment: “Attorney General Alberto Gonzalesannounced Padilla is being removed from military custody and charged
with a series of crimes” and “There is no mention in the indictment of
Padilla’s alleged plot to use a dirty bomb in the United States. There
is also no mention that Padilla ever planned to stage any attacks
inside the country. And there is no direct mention of Al-Qaeda. Instead
the indictment lays out a case involving five men who helped raise
money and recruit volunteers in the 1990s to go overseas to countries
including Chechnya, Bosnia, Somalia and Kosovo. Padilla, in fact, appears to play a minor role in the conspiracy. He is accused of going to a jihad training camp in Afghanistan but the indictment offers no evidence he ever engaged in terrorist activity.”
Kafka warned us about this, Orwell warned us, Gilliam warned us. Now it is up to the Supreme Court to protect us.
The case is Hamdan v. Rumsfeld , No. 05-184. And, ironically, the defendent was a chauffer for Usama bin-Laden.
In oral arguments Tuesday, an attorney for Salim Ahmed Hamdan will ask the justices to declare unconstitutional the U.S. military commission that plans to try him for conspiring with his former boss to carry out terrorist attacks.
Significant as that demand is, its potential impact is much wider, making Hamdan’s case one of the most important of Bush’s presidency. It is a challenge to the broad vision of presidential power that Bush has asserted since the terrorist attacks of Sept. 11, 2001.
In blunt terms, Hamdan’s brief calls on the court to stop “this unprecedented arrogation of power.” Just as urgently, the administration’s brief urges the court not to second-guess the decisions of the commander in chief while “the armed conflict against al Qaeda remains ongoing.”
In Bush’s world, Oceania has always been at war with Eurasia, and it always will be. We will never be able to second-guess the commander in chief so-long as our war with Iraq al-Qaeda continues. We will see how the Court rules on this case. John Roberts has to recuse himself because he ruled on the case as an appeals judge. So, there is a real possibility of a 4-4 outcome.
The Court would do well to remember what Simone Weil said about totalitarianism:
The real stumbling-block of totalitarian regimes is not the spiritual need of men for freedom of thought; it is men’s inability to stand the physical and nervous strain of a permanent state of excitement, except during a few years of their youth.
Bush’s fear-mongering power grab must be reversed and repudiated. The idea that Americans will long submit to this tyranny is misguided, and the stability of our society can not be safeguarded by caving into Bush’s permawar legal reasoning. Quite the opposite.
I would like to know how people would have reacted if 9/11 had initially been claimed as an organized crime or mafia hit. Would the justification of all govt actions since still exist?
It’s the only answer. It doesn’t matter that Cheney would be worse. Unlimited power in the hands of the chief executive means the end of democracy and it has to be stopped. Any other solution leaves Bush’s power grab as a precedent for a future President. What he is claiming is unconstitutional.
the reason he was selected in the first place is for his sheer expendability. He does not have a pleasing persona, even to many who voted for him and would do so again.
It’s not that people object so much to the policies, an increasing number of them simply don’t like Bush.
Whether Cheney would be worse or the same, I think you would find many people agree with you, they don’t care.
Naturally, the victims of the policies, both in and outside the US have the opposite opinion, and would tend to wish an end to the policies, regardless of who presents them on TV.
It’s not the impeachee who is important, it’s the charges and the process. Even if impeachment is unsuccessful, Congress and the Judiciary need to retake their role in American government. I could care less about Bush, this claim of Presidential infallibility needs be destroyed at all costs regardless of who is making the claim. It would be just as dangerous if it was Clinton or FDR claiming to be all-powerful.
Just as the old saying about civil liberties once removed, are seldom (voluntarily) reinstated, power, once obtained, is seldom voluntarily relinquished.
That will require more than figurehead change, whether by means of impeachment or joint action of Diebold and the supreme court, or “election,” as some folks call it 🙂
I agree that the integrity of the process and the office is what’s important. Rep Conyers appears to be interested in doing that and it would target all guilty participants.
Televised, possibly on the networks, as well as the cable news channels, because it is an election year, and some of the speeches are sure to result in some very impressive check-writing activity!
What we need are the criminal trials that involve govt agency employees that are bridges between govt and organized crime. That would be very educational.
Couple of notes.
On Hamdan: he wasn’t a “chauffeur” for Osama, he worked in Osama’s motor pool and while he did do some driving, he spent most of the time maintaining and repairing engines. He is a simple man with a borderline intelligence, can barely read and has a 4th grade education. He is not charged with any sort of terroristic act or fighting of any kind, nor is he even a “card carrying” member of Al-Qaeda. He did work for Osama and at Osama’s camp since 1996, which he freely admits, and was doing so primarily to save money to live in Yemen with his wife and kid.
On Hamdan’ trial: One of the things often overlooked is that Congress is supposed to organize and set the rules for holding war time military tribunals. Yet in this case, not only the rules but the charges, the level of proof necessary to convict and even most of the defense lawyers are all being provided by the U.S. military.
It’s just another example of BushCo saying he has the impunity to bypass Congress.
Pax
So far, it appears he does. Congress doesn’t seem to have much desire for accountability.
you are right. Calling a chauffer was laziness on my part. Of course, I was merely reflecting the laziness in the WP piece, but that’s no excuse.
The Guantanomo “trials” are an utter farce. The Military prosecutes, defends and judges, and claims no one has the authority to review their handiwork.
One wonders why they even bother with a trial at all, since they aren’t bothering to broadcast them.
The latest edition of “The Pocket Part” — a companion to the Yale Law Journal is now up and online at:
http://www.thepocketpart.org.
It’s entire content is devoted to the theme of “The Most Dangerous Branch?”, and highlights the difficulties and complexities — and the history — of theser disputes between the three branches of our government, particularly in times of war and when the President invokes his constitutionally-granted powers as Commander-in-Chief. I urge everyone to read all the commentaries there for a historical and legal perspective on these issues. There’s great stuff here. And a superb juxtaposition of two quotes, in the article by Harold Honhju Koh:
“… Richard Nixon’s remark: “If the President does it, it’s not illegal.” But the more fitting quip may well be Henry Kissinger’s: “The illegal we do immediately. The unconstitutional takes a little longer.”
Koh argues that the reason that the ‘unconstitutional takes a little longer” really means that in order for the Executive to prevail in its claims, the public has in the past deferred to the Congress and ultimately the Courts to decide these issues: and Congress’ acquiescence to the Executive’s claims of authority is the real cause of the erosion of Congress’ own power.
Indeed, it’s the abnegation of responsibility by both the Courts and the Congress which makes for constitutional crises: in these cases, it appears it takes three to tango…
very much for providing that link. I think Professor Brooks’ response to Dean Koh and the current constitutional crisis has to be one of the most pragmatic that I’ve yet read:
I wonder if her criticism/suggestions with respect to legal academic specialization and “turgid, jargon-laden law review prose” will be taken up by legal scholars.
Oh, my and indeed.
This site is indeed a goldmine for cogent analysis, references and discussion on these issues.
As the Yale Law School is sponsoring a series of conferences and dicussions on this issue in late March, I hope that transcripts and comments will be published online — hopefully very soon.
John Roberts has to recuse himself because he ruled on the case as an appeals judge. So, there is a real possibility of a 4-4 outcome.
If there’s a tie vote, the decision of the lower court remains in place, effectively giving Roberts the 5th vote to uphold the tribunals & remove the detainees from the reach of the courts.
Executions aren’t too far off in time . . .
Boo — did you ever get my email?
In a Newsweek article, Scalia is quoted making remarks in Germany that bear directly on Hamdan, thoug he nevermentions the case by name. Michael Ratner of the Center for Constitutional Rights (who represents several Gitmo detainees)thinks it is grounds for recusal. Of course, Scalia won’t recuse himself — the decision is his alone to make.