Sunday, July 26, 2009

Is this law?


        Yesterday the New York Times ran a front page story on how “GI”s might be used in the United States.  I got the Denver version of the paper, printed and sent out early.  Luckily. some  editor finally caught the error (or the reporters protested enough) and a later headline read: “Bush weighed using military in arrests.”  The issue was not one of ordinary soldiers – the earlier edition had a flagrant, pro-tyranny headline; it was about the use of the army, in violation of the Constitution and the posse commitatus act,  inside the United States.    

        The story is frightening.  Vice President Cheney and his assistant David Addington wanted to use the army here  against suspected terrorists.  John Yoo wrote another memo. (there is a satirical group, “the Yes Men,” which deceives important business sometimes;  one cannot, however, satirize John Yoo).   The unending “war on terror” would revive the government powers of the Civil War.

         To use the military in the United States would make the government fully a police state. The proposal lets out Cheney’s secret.  He was not just for “commander in chief” or “unitary executive” or even authoritarian power.  He went immediately to the most extreme forms of it.

       Even Bush and my student Condoleeza Rice could not quite accept this measure.  It would cast the government too extremely against the people.  It would make clear and too abruptly that these rulers had contempt for democracy and had thrown it aside.

       In any case, the Government could send the police to arrest the Lackawanna 6.  They got convictions (of a sort) in ordinary courts.  Glenn Greenwald and others have emphasized how effective ordinary legal proceedings are in such cases.  They are mainly right.  But there is a defect in this reasoning: much of the proceedings against accused terrorists have turned out to be trumped up and false.  The government can get convictions when it has a case.  It cannot get convictions – or it has to charge people with different, minor crimes (for instance, not having a passport in order) – in others.  Given hysteria and racism toward Arabs and Arab-Americans, every protection of law and every bit of intelligence we possess must go into upholding the rule of law.  Otherwise, even the law (we have two million prisoners as a result of  our  ordinary “legal” proceedings)  will not protect us. It will jail innocents; it will puff itself up and call press conferences and strut.  It will never seek out or find  the dangerous. We have  tortured and murdered in secret prisons people picked up off the street; Osama Bin Laden is at large.

      The Yoo memo supposedly licensed the indefinite  detention of Jose Padilla in a brig in West Virginia for 3 1/2 years and his torture.  One of Padilla’s lawyers said that he has become a “chair,” incapable of participating in his own defense.  He suffers at least post traumatic stress, and probably something worse – he is apparently very concerned to protect the United States from any enemies.  Padilla is an American citizen.  When courts finally intervened, he got a trial.  It was not about planting a dirty bomb, which Attormey General Ashcroft had proclaimed in one of his “important” hastily called press conferences after Padilla was arrested at Chicago airport.  One wonders how a prisoner who was treated like this and is in this reported mental state can have been convicted of something and sent to prison by a “court.”  Perhaps a mental hospital would have been more appropriate.   Is this law?

        Greenwald’s excellent point – that Obama could accomplish everything reasonable against terror by adhering to the law and not invoking preventive detention and “state secrets” – is right, as is his point that law is something we will have to pressure him from below to adhere to.  As a constitutional lawyer, Obama said the right things during the campaign, but to avoid prosecuting Bush and Cheney, his Justice Department now emulates Bush on state secrets, on secrecy more generally (Eric Holder did, however, fight to release the torture memos just before the current turn became so sharp), and even on executive privilege. Hopefully, the courts will continue to block these illegal measures.

       Authoritarianism has been but a breath away here in the United States.  The political elite had turned against American values - as Obama so eloquently named them  in the campaign - and nearly extinguished them.  If we do not move back toward democracy (the election of Obama is a great hope) and the rule of law, we will very likely continue to do things (not act sufficiently against global warming, wage more and more destructive wars) which will have graver consequences for humanity than even a period of authoritarianism or tyranny domestically.

       This morning I asked each of us to imagine ourselves Henry Louis Gates.  Apparently the police officer who arrested Gates was a serious, ordinary officer, one charged with instructing other officers not to be abusive.  Like the New York Times headline and its belated correction, this fact about him should be even more disturbing.  Ordinary police conduct is authoritarian.  Ordinary courts are no longer courts.  There is still justice and many decent officers and lawyers here.  Nonetheless, the kinship of where we are and authoritarianism is, sadly, plain to see.

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