Suffering and Death in a World of Empty Gesture, Form and Symbol (I): Among the Living Dead
[This discussion continues:
"Thus the World Was Lost" -- with some thoughts about how to wage this battle, where responsibility for the current catastrophe lies, and excerpts from They Thought They Were Free
Duly Elected U.S. Congress Passes "Law for Removing the Distress of the People and the Homeland" -- a review of how we came to be here, and just how incomprehensibly terrifying it is]
During my two-month hiatus from blogging, the result of various infirmities of the body and a few of the soul, I have continued to watch the ongoing and increasing wreckage of the world, and of the United States. It is a genuinely terrifying spectacle, especially when one recognizes that the worst is yet to come. As I have reflected on the horrors of our world and their causes, and as I have considered the near-impossibility of getting through to most people and convincing them to give a damn and to offer meaningful opposition to our rapid descent into the bowels of history and of hell, I have repeatedly come back to one overall theme.
We live in a world founded on lies. Our entire national debate is made up of a series of intricate, interwoven myths, lies and tales fabricated by propagandists. Such propagandists are to be found in all parts of the political spectrum. Today's conservatives and other assorted defenders of the current administration, and of its foreign policy in particular (the most loathsome of which are the self-identified, phony "libertarians," who have debased that term beyond the point of recognition -- it now appears that anyone to the left of Hitler may be regarded as a "libertarian," if his paeans to untrammeled militarism and genocide contain the occasional reference to "American values" and "individual rights"), constantly appeal to "American exceptionalism" and our nation's "founding principles," even as they systematically destroy all the values that once, very briefly, made the United States unique.
The liberals and progressives believe in American and Western "exceptionalism" just as passionately, and they are inexorably led to the same policies, informed by identical underlying fundamentals. Nowhere is this more apparent than in the realm of foreign policy. Liberals may denounce the "incompetence" of the administration's catastrophe in Iraq, but they remain incapable of recognizing or identifying the war on Iraq and the current occupation as profoundly immoral. They are unable to say what much of the rest of the world knows to be true: that the attack on Iraq represented an utterly unjustified act of aggression against a country that did not threaten us. It was, if you will, a war crime. It was hardly the first time that the United States government has committed such crimes.
Liberals recognize the condescension and paternalism inherent in Bush's Wilsonian notion of making the world "safe for democracy." They cannot or are unwilling to see that they exhibit the same paternalism and narcissism themselves (see here, too). No serious historian or commentator disputes the Wilsonian roots of Bush's foreign policy; I suppose I should be rude and remind you that Wilson was, of course, a Democrat. This identity in basic foreign policy prescriptions leads all national politicians to the same threatening pronouncements about Iran: it is "unacceptable" for Iran to pursue a nuclear program, unless it does so in accordance with our demands. We will "not allow" Iran to have nuclear weapons. Bush and his henchmen all say this; so do Hillary Clinton, Mark Warner, John Kerry and every other Democrat.
Be clear about this dynamic. There is no argument grounded in history, morality or political theory that justifies one country forcing the rest of the world to conduct itself according to that country's dictates, regardless of actual threats -- that is, there is no argument that makes it right. We indulge ourselves in such absolute demands because we can -- because we can enforce our demands militarily. For the moment, no other nation can oppose us. We can obliterate all of them, and they know it. The United States has only the power that accrues to the biggest bully on the block. The rest of the world knows it; we refuse to acknowledge this obvious truth.
Among other sources, two stand out with regard to the extent to which they distort and deform our national discussion, such as it is. One arises from the founding principles of the United States, and one arises from the current administration. As already noted briefly, everyone and politicians of all stripes appeal to "American values" when they are defending their particular beliefs or programs. Similarly, when people wish to condemn some practice in the strongest possible terms, they call it "unAmerican." An essential part of this elaborate charade is that none of these terms is ever defined. Since everyone employs them, we can be absolutely certain of one thing: such terms can mean anything, which means they signify nothing. They are completely empty gestures, designed to evoke an emotional response. They relieve the speaker and the listener of the unwelcome and difficult task of responsible thought. We have just witnessed this mechanism promiscuously employed in connection with the abominable military tribunals bill passed by the Senate yesterday: liberals and others opposed to the bill repeatedly said that torture is "unAmerican." Once again, reality will make an unwelcome appearance here: for at least the last 50 years, unimaginable brutality and torture have been as "American" as Mom and apple pie. The full truth is much worse than this statement alone implies, as I will be discussing in an upcoming installment of this series. It is the refusal to acknowledge this truth and all its implications that, in significant part, led to legislation that permits the president -- any president -- to torture at his discretion, and that immunizes all those responsible for their acts of revolting barbarism.
Our debates are also dangerously distorted by a ludicrous notion, one which even a minimal understanding of history and of cultural dynamics would cause to implode immediately (although it serves very nicely for narrower partisan purposes): the idea that the Bush administration represents a fundamental rupture in our history, that Bush and his gang have corrupted our "national character" in a unique and unprecedented way. Let me be very clear on this point: in certain significant respects, I unquestionably do regard the current regime as dangerous in ways that are unprecedented. I have detailed the reasons for this assessment in many essays over the last several years. But it is crucial to recognize that, in the deepest sense, the Bush administration is only cashing in on the corruption that had gone before, and that made this regime possible in the first instance. In the absence of foreign conquest, an authoritarian regime only comes to power because a society makes it possible and acquiesces to the assertion of such power. Remember that tens of millions of Americans voted for Bush in the last election, even after the vicious nature of his mode of governance was unmistakably clear. And it is not as if millions of Americans are protesting in any significant way our destruction of Iraq, or making known their opposition to the coming attack on Iran. Moreover, with less than a handful of exceptions, the entire governing class, together with its enthusiastic enablers in our media, share the beliefs that make a still wider and ungraspably destructive war inevitable.
I will be considering all these themes in detail in this series of essays. In addition, I will be examining still one more time one of the central mythologies that continues to dominate most Americans' world view: the mythology and glorification of war itself. I recently watched Steven Spielberg's Saving Private Ryan, and I will watch it again this weekend in connection with this series. (For various reasons, I had not seen the film in its entirety before.) It is one of the most profoundly vicious films I have ever seen. The entire film is nothing but an endless series of vacuous gestures and symbols, the sum of which carries one unmistakable message: endless suffering, destruction and grisly death are noble and glorious, even when endured for an end which is arbitrary and meaningless. It enshrines obedience as the primary virtue, even and especially when it is obedience for no justifiable reason whatsoever. And to give one's life in obedience to a senseless purpose represents the highest morality; it is nothing less than glorious. The film glamorizes and glorifies violence and death: it is, quite simply, war pornography.
That the film received great accolades and honors, and that liberals and conservatives alike heap unstinting praise on it, tells you a great deal about the state of our culture, and of our nation's soul -- and all of it is horrifying. Because Saving Private Ryan combines a number of extremely pernicious and dangerous myths, I will examine the film at some length. In the meantime, and as a powerful antidote to the war propaganda represented by that film, I strongly recommend The Americanization of Emily. I have discussed that film, and Paddy Chayefsky's miracle of a screenplay, at some length. It is illuminating to watch the two films, one after the other; I found the exercise very instructive, and you may as well. Spielberg swallows every lie about the alleged nobility and glory of war ever told, and embeds them still more deeply in our cultural life; Chayefsky exposes them for the life-destroying lies that they are.
Let us return to current events, and to the latest manifestation of our descent into hell. As indicated above, I will deal with one aspect of the Military Commissions Act separately: its sanctification of torture. My previous series of essays on torture is summarized in this post. Here, I want to focus on the other monumentally appalling aspect of this bill: its abolition of the right of habeas corpus. It is one thing to spit on our own Constitution and the most fundamental animating principle of our country's founding; it is another to defecate on the cornerstone of modern civilization and on a political, cultural and jurisprudential tradition that dates back to 1215. Both are unutterably disgusting.
The scope and full meaning of this monstrous act require emphasis. You should read a recent Jacob Hornberger article in its entirety: "Decimating the Constitution with Military Tribunals." Here are just a few excerpts:
BY ITS LANGUAGE, THE MILITARY COMMISSIONS ACT APPLIES TO EVERYONE, INCLUDING ALL AMERICAN CITIZENS -- WHICH MEANS IT APPLIES TO YOU.
This point is developed by Bruce Ackerman:
In this installment, I must still focus on one additional issue. I realize this is a lengthy essay, but this abysmally historic moment requires careful attention. The final issue is a damnable and unforgivable one: THERE WAS NO SERIOUS OR MEANINGFUL OPPOSITION WHATSOEVER TO THE MILITARY COMMISSIONS ACT. The comprehensive, unceasing attack on the actual founding principles of the United States began over a century ago, as I will discuss in more detail soon. Very few people are willing to recognize how deep the corruption goes, and how deeply embedded in our system of government it is. We are now in the advanced stages of corporate statism -- that is, a system where business and government (i.e., the nominally private and public spheres) are intertwined to such an extent that it is close to impossible to separate them any longer. In countless ways, all of us are "living by permission": we must seek government approval to pursue a profession, we must comply with government regulations when we conduct business, and even when we simply want to engage in recreation. (For some background on these points, see my essay, "The Waiting Game.") Government intrudes into every area of our lives -- including, if certain people had their way, sexual acts between consenting adults, the books we are permitted to read, and the films we are allowed to watch (and such prohibitions are far from unknown in our history).
In this kind of system -- in our kind of system -- almost everyone is on the take, and in on the graft. [To clarify: as discussed in what follows, I mean this in a sense much broader than the mere monetary "rewards" of office that may first spring to mind.] It is sometimes said, and I say it myself, that anyone who seeks political office, particularly on the state or national level, is disqualified by that very fact. The observation, which is almost always true, speaks to the widespread and endemic nature of the corruption involved. I think there are a few politicians who are free of corruption -- but they are very, very few. They are so rare that they are unable to make a difference. All the others are in thrall to the existing system: it is that system that provides their enormously comfortable livings, with all the perks of political office and power (all of which adds up to a lifestyle completely unknown to the majority of Americans over whom they rule). It is that system that daily feeds them the aphrodisiac of power over the lives of others. They tell themselves that they are making our lives "better." On extremely rare occasions (and usually only when they refrain from action), they do. Most of the time, they cause untold suffering and hardship -- and, as their stance with regard to our current foreign policy demonstrates, they actively support or passively acquiesce in action that results in the mass murder of hundreds of thousands of entirely innocent people.
Anyone who craves such power is irredeemably corrupt. Our history over the last hundred years demonstrates that the Democrats and Republicans are equally corrupt. They all feed off the system -- and they all feed off us. None of them wants to dismantle the system that supports and makes possible the lives to which they have become accustomed. For them, the system is life itself. In this kind of system -- in our kind of system -- there is no longer any battle over fundamental principles. The only struggles are over who controls the levers of state power. The only struggles are over who will rule. As a result, they will fight each other over derivative issues, but only to the extent they believe this will aid in their own ascension to power. The system itself is sacrosanct.
In terms of its original vision, our country has been dying for many decades. But to destroy habeas corpus is to rip the heart out of a body that is still clinging to life. If this legislation remains unaltered, we as a nation are a corpse still capable of automatic, meaningless motion and speech -- but the body will collapse soon enough. It is a body deprived of the vitality of life, and there is no longer anything to sustain it. Insofar as the principles that make civilization possible are concerned, we are among the living dead. Now, we all breathe the stench of death itself. The stark, undeniable fact about this latest legislative atrocity is that the Democrats could have stopped it. If they had given a damn, they could have filibustered or stalled it by some other means. Surely all those rules of procedure must be good for something. Unforgivably and damnably, they chose not to. [See "Thus the World Was Lost" for a more detailed discussion of this critical point -- and about what the Democrats should do now, especially with regard to Iran.]
The depth and comprehensiveness of this betrayal, of this abomination, cannot be overstated. What is still more unforgivable, to a degree that I myself find difficult to grasp, is that the Democrats have known this particular battle was coming for more than three years. Yet they revealed that they were totally unprepared. They reacted as if it were a complete surprise, as if these developments could not have been predicted by anyone.
By the fall of 2002, it was entirely clear to any perceptive observer that the Bush administration would attack Iraq. Yet almost all the Democrats granted Bush the authorization he wanted for his unholy war. I have previously identified some of the more notable additional betrayals by the Democrats. It is an impressive list -- impressive, that is, in the annals of abject cowardice: the reprehensible Patriot Act, to which the Democrats acceded not once, but twice; the lack of serious opposition to the Roberts and Alito nominations, to say nothing of the nomination of Gonzales to be Attorney General; and, hardly least and contrary to the explicit language of the Constitution, ceding the power to declare war to the executive. Of course, Democrats want to preserve that last prerogative, so that Democratic presidents can use it for the Democrats' own wars of choice, as they have in the past, with disastrous results.
With regard to the destruction of habeas corpus, and to demonstrate that the Bush administration has made its intentions entirely clear for several years, I will revisit two earlier essays of mine. The first, dated May 22, 2005, is entitled: "Understanding the Significance of Guantanamo: The Symbol of Omnipotent Power." Permit me to remind you of the warning offered here:
The second essay is one that has not been online for over a year, due to technical problems with my archives, moving the blog, etc. It was first published on January 1, 2004. (If you are of a suspicious turn of mind and think I may have created this post only now to demonstrate my prescience or for some other nefarious reason, here are two links to the essay when it appeared: one at TalkLeft, and one at The Sideshow. My very grateful thanks to Jeralyn and Avedon for noting it, and for considering these observations to be of some moment.)
I reprint the essay from almost three years ago in its entirety, to demonstrate how entirely predictable this battle was -- and how utterly unprepared for it the Democrats were, despite the fact that they were on repeated notice. Keep in mind that subsequent developments proved that almost all of Berenson's key "facts" about Padilla turned out to be entirely untrue:
********************
FROM THE HORSE'S MOUTH: THE PATH TO DICTATORSHIP
January 1, 2004
We have now been informed as to Bush's "reasoning" with regard to cases such as the Padilla one -- by none other than Bradford A. Berenson, "a Washington lawyer, who was associate White House counsel to President Bush."
Mr. Berenson illuminates these issues as follows:
But the key to this "logic" can be found in two passages. First:
And consider this:
Remember this, too: if this idea were to be established and accepted, it would provide the framework -- in principle -- for an absolute dictatorship. No, that dictatorship would not arrive overnight, but history demonstrates that dictatorships can arrive slowly, by degrees and by increasingly authoritarian steps. It need not happen all at once. But under this "reasoning" and in principle, every United States citizen could be imprisoned for a lifetime. End of story.
The only requirement is that the President declare you an "enemy combatant." He doesn't have to prove it; in fact, he doesn't have to divulge any of the grounds for his judgment. It's just his word -- and your life.
And we're protecting "freedom" here, and spreading "democracy" across the globe? Welcome to The Twilight Zone. Or 1984. You have a very wide range of choices as to literary references. One wonders what those in the administration and certain of their supporters read -- or think about.
********************
Even before this entry from January 1, 2004, I had written a couple of posts about the Padilla case, which I may republish as I have time. During that period, not many people were writing about the case, or about the issues it raised. Hardly any Americans even knew Padilla's name. Many more do today -- now that it is probably too late. I recall receiving a few emails in response to that essay and similar ones. In general, my emailers said I was being unduly pessimistic. I was an "alarmist." I wonder what they would say today, or if they remain determined to blind themselves to the principles involved.
On the subject of the non-opposition from the Democrats, even on an issue that is for once of genuinely transcendent importance, I have a few final comments. In addition to these observations from Jim Henley, with which I agree wholeheartedly, I reprise these thoughts from an essay about why Alito had to be filibustered, if the Washington Democrats had understood what was at stake:
And, I would submit, if you genuinely understand and care about the principles that gave rise to this nation, they should not be any concern of yours.
Left unchanged, the Military Commissions Act is certainly our country's death knell, in time. Yet even with these unfolding horrors, there is still one more shoe to drop -- and it may well drop before November. That is the coming attack on Iran. As with every other issue of literally earth-altering significance, the Democrats are completely unprepared; still worse, by their actions and statements, they are ensuring that such an attack is inevitable, and that there will be virtually no opposition of any consequence. The Democrats have certainly offered none to date. But we will undoubtedly hear many fine speeches from them about how we "should have given diplomacy more of a chance" and strewn with other meaningless gutter language -- after Bush's announcement of the bombing runs that have already begun, allegedly to eliminate an "intolerable" threat to "civilization." As with this latest legislation and every other issue of immense significance, the Democrats will show up only after the fact, when it is far too late to avert catastrophe. And do keep in mind one other terrifying fact: this particular catastrophe may be the last.
I will have more on that and other subjects within the next several days.
"Thus the World Was Lost" -- with some thoughts about how to wage this battle, where responsibility for the current catastrophe lies, and excerpts from They Thought They Were Free
Duly Elected U.S. Congress Passes "Law for Removing the Distress of the People and the Homeland" -- a review of how we came to be here, and just how incomprehensibly terrifying it is]
During my two-month hiatus from blogging, the result of various infirmities of the body and a few of the soul, I have continued to watch the ongoing and increasing wreckage of the world, and of the United States. It is a genuinely terrifying spectacle, especially when one recognizes that the worst is yet to come. As I have reflected on the horrors of our world and their causes, and as I have considered the near-impossibility of getting through to most people and convincing them to give a damn and to offer meaningful opposition to our rapid descent into the bowels of history and of hell, I have repeatedly come back to one overall theme.
We live in a world founded on lies. Our entire national debate is made up of a series of intricate, interwoven myths, lies and tales fabricated by propagandists. Such propagandists are to be found in all parts of the political spectrum. Today's conservatives and other assorted defenders of the current administration, and of its foreign policy in particular (the most loathsome of which are the self-identified, phony "libertarians," who have debased that term beyond the point of recognition -- it now appears that anyone to the left of Hitler may be regarded as a "libertarian," if his paeans to untrammeled militarism and genocide contain the occasional reference to "American values" and "individual rights"), constantly appeal to "American exceptionalism" and our nation's "founding principles," even as they systematically destroy all the values that once, very briefly, made the United States unique.
The liberals and progressives believe in American and Western "exceptionalism" just as passionately, and they are inexorably led to the same policies, informed by identical underlying fundamentals. Nowhere is this more apparent than in the realm of foreign policy. Liberals may denounce the "incompetence" of the administration's catastrophe in Iraq, but they remain incapable of recognizing or identifying the war on Iraq and the current occupation as profoundly immoral. They are unable to say what much of the rest of the world knows to be true: that the attack on Iraq represented an utterly unjustified act of aggression against a country that did not threaten us. It was, if you will, a war crime. It was hardly the first time that the United States government has committed such crimes.
Liberals recognize the condescension and paternalism inherent in Bush's Wilsonian notion of making the world "safe for democracy." They cannot or are unwilling to see that they exhibit the same paternalism and narcissism themselves (see here, too). No serious historian or commentator disputes the Wilsonian roots of Bush's foreign policy; I suppose I should be rude and remind you that Wilson was, of course, a Democrat. This identity in basic foreign policy prescriptions leads all national politicians to the same threatening pronouncements about Iran: it is "unacceptable" for Iran to pursue a nuclear program, unless it does so in accordance with our demands. We will "not allow" Iran to have nuclear weapons. Bush and his henchmen all say this; so do Hillary Clinton, Mark Warner, John Kerry and every other Democrat.
Be clear about this dynamic. There is no argument grounded in history, morality or political theory that justifies one country forcing the rest of the world to conduct itself according to that country's dictates, regardless of actual threats -- that is, there is no argument that makes it right. We indulge ourselves in such absolute demands because we can -- because we can enforce our demands militarily. For the moment, no other nation can oppose us. We can obliterate all of them, and they know it. The United States has only the power that accrues to the biggest bully on the block. The rest of the world knows it; we refuse to acknowledge this obvious truth.
Among other sources, two stand out with regard to the extent to which they distort and deform our national discussion, such as it is. One arises from the founding principles of the United States, and one arises from the current administration. As already noted briefly, everyone and politicians of all stripes appeal to "American values" when they are defending their particular beliefs or programs. Similarly, when people wish to condemn some practice in the strongest possible terms, they call it "unAmerican." An essential part of this elaborate charade is that none of these terms is ever defined. Since everyone employs them, we can be absolutely certain of one thing: such terms can mean anything, which means they signify nothing. They are completely empty gestures, designed to evoke an emotional response. They relieve the speaker and the listener of the unwelcome and difficult task of responsible thought. We have just witnessed this mechanism promiscuously employed in connection with the abominable military tribunals bill passed by the Senate yesterday: liberals and others opposed to the bill repeatedly said that torture is "unAmerican." Once again, reality will make an unwelcome appearance here: for at least the last 50 years, unimaginable brutality and torture have been as "American" as Mom and apple pie. The full truth is much worse than this statement alone implies, as I will be discussing in an upcoming installment of this series. It is the refusal to acknowledge this truth and all its implications that, in significant part, led to legislation that permits the president -- any president -- to torture at his discretion, and that immunizes all those responsible for their acts of revolting barbarism.
Our debates are also dangerously distorted by a ludicrous notion, one which even a minimal understanding of history and of cultural dynamics would cause to implode immediately (although it serves very nicely for narrower partisan purposes): the idea that the Bush administration represents a fundamental rupture in our history, that Bush and his gang have corrupted our "national character" in a unique and unprecedented way. Let me be very clear on this point: in certain significant respects, I unquestionably do regard the current regime as dangerous in ways that are unprecedented. I have detailed the reasons for this assessment in many essays over the last several years. But it is crucial to recognize that, in the deepest sense, the Bush administration is only cashing in on the corruption that had gone before, and that made this regime possible in the first instance. In the absence of foreign conquest, an authoritarian regime only comes to power because a society makes it possible and acquiesces to the assertion of such power. Remember that tens of millions of Americans voted for Bush in the last election, even after the vicious nature of his mode of governance was unmistakably clear. And it is not as if millions of Americans are protesting in any significant way our destruction of Iraq, or making known their opposition to the coming attack on Iran. Moreover, with less than a handful of exceptions, the entire governing class, together with its enthusiastic enablers in our media, share the beliefs that make a still wider and ungraspably destructive war inevitable.
I will be considering all these themes in detail in this series of essays. In addition, I will be examining still one more time one of the central mythologies that continues to dominate most Americans' world view: the mythology and glorification of war itself. I recently watched Steven Spielberg's Saving Private Ryan, and I will watch it again this weekend in connection with this series. (For various reasons, I had not seen the film in its entirety before.) It is one of the most profoundly vicious films I have ever seen. The entire film is nothing but an endless series of vacuous gestures and symbols, the sum of which carries one unmistakable message: endless suffering, destruction and grisly death are noble and glorious, even when endured for an end which is arbitrary and meaningless. It enshrines obedience as the primary virtue, even and especially when it is obedience for no justifiable reason whatsoever. And to give one's life in obedience to a senseless purpose represents the highest morality; it is nothing less than glorious. The film glamorizes and glorifies violence and death: it is, quite simply, war pornography.
That the film received great accolades and honors, and that liberals and conservatives alike heap unstinting praise on it, tells you a great deal about the state of our culture, and of our nation's soul -- and all of it is horrifying. Because Saving Private Ryan combines a number of extremely pernicious and dangerous myths, I will examine the film at some length. In the meantime, and as a powerful antidote to the war propaganda represented by that film, I strongly recommend The Americanization of Emily. I have discussed that film, and Paddy Chayefsky's miracle of a screenplay, at some length. It is illuminating to watch the two films, one after the other; I found the exercise very instructive, and you may as well. Spielberg swallows every lie about the alleged nobility and glory of war ever told, and embeds them still more deeply in our cultural life; Chayefsky exposes them for the life-destroying lies that they are.
Let us return to current events, and to the latest manifestation of our descent into hell. As indicated above, I will deal with one aspect of the Military Commissions Act separately: its sanctification of torture. My previous series of essays on torture is summarized in this post. Here, I want to focus on the other monumentally appalling aspect of this bill: its abolition of the right of habeas corpus. It is one thing to spit on our own Constitution and the most fundamental animating principle of our country's founding; it is another to defecate on the cornerstone of modern civilization and on a political, cultural and jurisprudential tradition that dates back to 1215. Both are unutterably disgusting.
The scope and full meaning of this monstrous act require emphasis. You should read a recent Jacob Hornberger article in its entirety: "Decimating the Constitution with Military Tribunals." Here are just a few excerpts:
Given all the glorification being bestowed on three U.S. senators for displaying "principle" in standing against President Bush’s plan to amend the Geneva Convention to permit torture of detainees, followed by their quick compromise abandoning any semblance of principle, it is easy to lose sight of something much bigger: The military tribunals that the president and the Congress are set to approve will constitute the most radical, dangerous, and disgraceful transformation in the U.S. criminal-justice system since our nation’s inception.To underscore the momentous nature of the particular juncture at which we find ourselves, I emphasize the primary point by putting it in bold, capital letters:
...
The military tribunals that Congress is now set to enact at the behest of President Bush effectively toss those legal principles into the ashcan of the "war on terrorism." No habeas corpus, grand-jury indictments, due process of law, speedy and public trials, trial by jury, and protection from unreasonable searches and seizures, incompetent evidence, coerced testimony, and cruel and unusual punishments. The military tribunals will constitute one of the most fundamental altering of our constitutional order since the founding of our nation. And it’s being done without even the semblance of a constitutional amendment.
...
The truth is that the "war on terrorism" rhetoric has been a sham from the beginning -- a sham to enable federal officials to do what they've been trying to do for decades, especially in another sham war -- the "war on drugs" -- emasculate the Bill of Rights to enable federal officials to run roughshod over people -- and not just foreigners. The military-tribunal legislation is just the culmination of decades of federal officials' mocking and ridiculing the "constitutional technicalities" whose only real purpose, U.S. officials have long claimed, is to let "guilty" people go free.
That's in fact why President Bush and the Pentagon set up their torture camp in Cuba rather than in the United States -- to avoid the constraints of the U.S. Constitution and the Bill of Rights, which they obviously hold in disdain. After all, what other explanation could there be for their incessant attempts to circumvent America's federal-court system?
...
[N]o one should forget the Padilla doctrine. Even though Jose Padilla, an American citizen, is in federal court now, the president and the Pentagon have made it perfectly clear that they now have the power to arrest any American for terrorism and send him to the military for punishment, bypassing the federal-court system. In fact, there's little doubt that if Padilla is acquitted in federal court, the feds intend to yank him back into military custody as an "enemy combatant" in the "war on terrorism," despite the bar on double jeopardy in the Bill of Rights.
Why are the feds fighting so hard for those military tribunals? Because the tribunals will enable them to directly control both the proceeding and the outcome of the proceedings. They can ensure that the defendants won't describe too extensively the torture and sex abuse to which they have been subjected while in captivity. They can restrict access by the press to both the defendants and the proceedings. They can ensure that the defendants will be more easily convicted, given that their right to counsel will be limited and that hearsay evidence and coerced testimony, some of which will be kept secret from the accused, will be able to be used to convict them. They can keep a short leash on the military officials presiding over the proceedings, something they cannot do with an independent federal judge. They can ensure that a jury of ordinary people will not interfere with what the prosecutors are seeking, as the jury in the Zacharias Moussaoui case did in sentencing him to life in prison instead of granting prosecutors' request to inflict the death penalty on him -- or as the jury did when it acquitted several terrorism defendants in Detroit.
The military tribunals will ensure that those in the executive branch, not those in the judicial branch, will be the final deciders of who is guilty of terrorism and who isn't and how these "terrorists" will be punished. This despite the fact that the federal "war on terrorism" dragnet has netted innocent people in the process -- innocent people who have been tortured, sexually abused, and even murdered by U.S. personnel or their duly authorized foreign agents.
BY ITS LANGUAGE, THE MILITARY COMMISSIONS ACT APPLIES TO EVERYONE, INCLUDING ALL AMERICAN CITIZENS -- WHICH MEANS IT APPLIES TO YOU.
This point is developed by Bruce Ackerman:
BURIED IN THE complex Senate compromise on detainee treatment is a real shocker, reaching far beyond the legal struggles about foreign terrorist suspects in the Guantanamo Bay fortress. The compromise legislation, which is racing toward the White House, authorizes the president to seize American citizens as enemy combatants, even if they have never left the United States. And once thrown into military prison, they cannot expect a trial by their peers or any other of the normal protections of the Bill of Rights.Consider Ackerman's point about "future mass seizures" an indication of some of the nightmares that lie in our future. I no longer have any doubt at all that, after another attack in the U.S. on the scale of 9/11 (or worse), we will see round-ups of Muslim- and Arab-Americans, along with anyone else who appears suspiciously "swarthy" (and anyone else at all who has incurred the displeasure of some government bureaucrat). Such round-ups may likely be quickly followed by seizures of "dissident" Americans, those we have repeatedly been told are, in fact, "on the other side." On the applicability of this bill to U.S. citizens, also see Jack Balkin (and here on more general considerations).
This dangerous compromise not only authorizes the president to seize and hold terrorists who have fought against our troops "during an armed conflict," it also allows him to seize anybody who has "purposefully and materially supported hostilities against the United States." This grants the president enormous power over citizens and legal residents. They can be designated as enemy combatants if they have contributed money to a Middle Eastern charity, and they can be held indefinitely in a military prison.
...
[T]he bill also reinforces the presidential claims, made in the Padilla case, that the commander in chief has the right to designate a U.S. citizen on American soil as an enemy combatant and subject him to military justice. Congress is poised to authorized this presidential overreaching. Under existing constitutional doctrine, this show of explicit congressional support would be a key factor that the Supreme Court would consider in assessing the limits of presidential authority.
This is no time to play politics with our fundamental freedoms. Even without this massive congressional expansion of the class of enemy combatants, it is by no means clear that the present Supreme Court will protect the Bill of Rights. The Korematsu case --upholding the military detention of tens of thousands of Japanese Americans during World War II -- has never been explicitly overruled. It will be tough for the high court to condemn this notorious decision, especially if passions are inflamed by another terrorist incident. But congressional support of presidential power will make it much easier to extend the Korematsu decision to future mass seizures.
In this installment, I must still focus on one additional issue. I realize this is a lengthy essay, but this abysmally historic moment requires careful attention. The final issue is a damnable and unforgivable one: THERE WAS NO SERIOUS OR MEANINGFUL OPPOSITION WHATSOEVER TO THE MILITARY COMMISSIONS ACT. The comprehensive, unceasing attack on the actual founding principles of the United States began over a century ago, as I will discuss in more detail soon. Very few people are willing to recognize how deep the corruption goes, and how deeply embedded in our system of government it is. We are now in the advanced stages of corporate statism -- that is, a system where business and government (i.e., the nominally private and public spheres) are intertwined to such an extent that it is close to impossible to separate them any longer. In countless ways, all of us are "living by permission": we must seek government approval to pursue a profession, we must comply with government regulations when we conduct business, and even when we simply want to engage in recreation. (For some background on these points, see my essay, "The Waiting Game.") Government intrudes into every area of our lives -- including, if certain people had their way, sexual acts between consenting adults, the books we are permitted to read, and the films we are allowed to watch (and such prohibitions are far from unknown in our history).
In this kind of system -- in our kind of system -- almost everyone is on the take, and in on the graft. [To clarify: as discussed in what follows, I mean this in a sense much broader than the mere monetary "rewards" of office that may first spring to mind.] It is sometimes said, and I say it myself, that anyone who seeks political office, particularly on the state or national level, is disqualified by that very fact. The observation, which is almost always true, speaks to the widespread and endemic nature of the corruption involved. I think there are a few politicians who are free of corruption -- but they are very, very few. They are so rare that they are unable to make a difference. All the others are in thrall to the existing system: it is that system that provides their enormously comfortable livings, with all the perks of political office and power (all of which adds up to a lifestyle completely unknown to the majority of Americans over whom they rule). It is that system that daily feeds them the aphrodisiac of power over the lives of others. They tell themselves that they are making our lives "better." On extremely rare occasions (and usually only when they refrain from action), they do. Most of the time, they cause untold suffering and hardship -- and, as their stance with regard to our current foreign policy demonstrates, they actively support or passively acquiesce in action that results in the mass murder of hundreds of thousands of entirely innocent people.
Anyone who craves such power is irredeemably corrupt. Our history over the last hundred years demonstrates that the Democrats and Republicans are equally corrupt. They all feed off the system -- and they all feed off us. None of them wants to dismantle the system that supports and makes possible the lives to which they have become accustomed. For them, the system is life itself. In this kind of system -- in our kind of system -- there is no longer any battle over fundamental principles. The only struggles are over who controls the levers of state power. The only struggles are over who will rule. As a result, they will fight each other over derivative issues, but only to the extent they believe this will aid in their own ascension to power. The system itself is sacrosanct.
In terms of its original vision, our country has been dying for many decades. But to destroy habeas corpus is to rip the heart out of a body that is still clinging to life. If this legislation remains unaltered, we as a nation are a corpse still capable of automatic, meaningless motion and speech -- but the body will collapse soon enough. It is a body deprived of the vitality of life, and there is no longer anything to sustain it. Insofar as the principles that make civilization possible are concerned, we are among the living dead. Now, we all breathe the stench of death itself. The stark, undeniable fact about this latest legislative atrocity is that the Democrats could have stopped it. If they had given a damn, they could have filibustered or stalled it by some other means. Surely all those rules of procedure must be good for something. Unforgivably and damnably, they chose not to. [See "Thus the World Was Lost" for a more detailed discussion of this critical point -- and about what the Democrats should do now, especially with regard to Iran.]
The depth and comprehensiveness of this betrayal, of this abomination, cannot be overstated. What is still more unforgivable, to a degree that I myself find difficult to grasp, is that the Democrats have known this particular battle was coming for more than three years. Yet they revealed that they were totally unprepared. They reacted as if it were a complete surprise, as if these developments could not have been predicted by anyone.
By the fall of 2002, it was entirely clear to any perceptive observer that the Bush administration would attack Iraq. Yet almost all the Democrats granted Bush the authorization he wanted for his unholy war. I have previously identified some of the more notable additional betrayals by the Democrats. It is an impressive list -- impressive, that is, in the annals of abject cowardice: the reprehensible Patriot Act, to which the Democrats acceded not once, but twice; the lack of serious opposition to the Roberts and Alito nominations, to say nothing of the nomination of Gonzales to be Attorney General; and, hardly least and contrary to the explicit language of the Constitution, ceding the power to declare war to the executive. Of course, Democrats want to preserve that last prerogative, so that Democratic presidents can use it for the Democrats' own wars of choice, as they have in the past, with disastrous results.
With regard to the destruction of habeas corpus, and to demonstrate that the Bush administration has made its intentions entirely clear for several years, I will revisit two earlier essays of mine. The first, dated May 22, 2005, is entitled: "Understanding the Significance of Guantanamo: The Symbol of Omnipotent Power." Permit me to remind you of the warning offered here:
For necessary background, you might begin with Hornberger's article explaining in detail why the writ of habeas corpus is the fundamental right for the political system originally envisioned by the founders of the United States. As our Supreme Court expressed it in 1969, the writ of habeas corpus is "the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action."And read the warning I offered at the conclusion of that essay:
With that central point fixed firmly in our minds, consider this excerpt from Hornberger's article about the Jose Padilla case. ...
[T]hese are among the reasons I consider Bush unquestionably to be the worst and most dangerous president of my lifetime -- and perhaps in all of American history. I only pray that irreversible damage does not occur before Bush leaves office. But I have to admit, very unhappily, that I am not prepared to place a bet on that proposition -- not any longer. The indisputable desire of this administration for absolute power over every single one of us cannot be denied. Bush and his defenders may refuse to acknowledge them, and our media may fail to discuss them, but those are the facts -- if one is willing to face them, and to admit what they mean.Not many people paid much attention to that essay, or put much credence in my argument. Perhaps more will do so now.
Whether Bush and his enablers will admit it or not, in fact the policies they seek to implement would make the United States itself into one gigantic Guantanamo: where any one of us can be detained indefinitely merely upon the word or desire of one person, with no charges ever filed against us, and where we can be abused or tortured, and perhaps even murdered, at will. And no one and nothing would be able to stop or even question them. That's the future they want so desperately -- and I suggest that you always keep it in mind and never, ever forget it.
The second essay is one that has not been online for over a year, due to technical problems with my archives, moving the blog, etc. It was first published on January 1, 2004. (If you are of a suspicious turn of mind and think I may have created this post only now to demonstrate my prescience or for some other nefarious reason, here are two links to the essay when it appeared: one at TalkLeft, and one at The Sideshow. My very grateful thanks to Jeralyn and Avedon for noting it, and for considering these observations to be of some moment.)
I reprint the essay from almost three years ago in its entirety, to demonstrate how entirely predictable this battle was -- and how utterly unprepared for it the Democrats were, despite the fact that they were on repeated notice. Keep in mind that subsequent developments proved that almost all of Berenson's key "facts" about Padilla turned out to be entirely untrue:
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FROM THE HORSE'S MOUTH: THE PATH TO DICTATORSHIP
January 1, 2004
We have now been informed as to Bush's "reasoning" with regard to cases such as the Padilla one -- by none other than Bradford A. Berenson, "a Washington lawyer, who was associate White House counsel to President Bush."
Mr. Berenson illuminates these issues as follows:
"How can the President of the United States detain a U.S. citizen on American soil and hold him without charge and without a lawyer, perhaps for years?" This is the question that apparently boggled the judicial mind in the Second Circuit's recent decision directing that Jose Padilla be turned loose by the U.S. military or surrendered to civilian prosecutors in the criminal justice system. Given the near certainty of further review by the full Second Circuit or the Supreme Court, the question remains important.If all this is so starkly clear to Mr. Berenson, then one wonders (among other things) why it is apparently so difficult actually to charge Padilla with a crime. It sounds as if he ought to be charged with a number of crimes, assuming Berenson knows whereof he speaks.
It also has an easy answer. The key fact is not that Jose Padilla is a U.S. citizen. It is that Padilla, a k a Abdullah al-Muhajir, was an al Qaeda agent who worked directly with terrorist mastermind Abu Zubaydah to plan a dirty-bomb attack on a major American city. He was captured in Chicago-O'Hare airport on his way back from Pakistan to scout potential targets. He was, in short, an active enemy fighter making war on the U.S. and its citizens, just as the 19 hijackers who attacked New York, Washington, and Pennsylvania were.
But the key to this "logic" can be found in two passages. First:
The president's power as commander in chief to do what is necessary to protect the nation in time of war is, as it must be, exceptionally flexible and robust. He can engage and subdue the enemy in any way he sees fit. There is no judicial check on his authority in this vital and sensitive area because there cannot be: As the Framers expressly recognized in the Federalist Papers, the "decision, activity, secrecy, and dispatch" that are the hallmarks of unitary executive power are "essential to the protection of the community against foreign attacks."Allow me to translate this: "[a]t the point of apprehension," we may not know that the person is a terrorist at all -- or that he is guilty of any crime whatsoever. In fact, he may be perfectly innocent.
Under the laws of war, the legitimate use of force has always included the power to capture and detain enemy combatants for the duration of the conflict, without charges and without lawyers, for the purpose of incapacitating them, gleaning actionable intelligence, and protecting the nation's security. This power is no less essential when applied to terrorists captured on our shores, even if they happen to be U.S. citizens. As the Supreme Court recognized more than 50 years ago in unanimously upholding President Roosevelt's capture on U.S. soil of a U.S. citizen Nazi saboteur, "citizens who associate themselves with the military arm of the enemy . . . and enter this country bent on hostile acts are enemy belligerents" and may be treated as such.
...
In practical terms, this means that citizen terrorists may be entirely beyond the government's reach. Never mind the kinds of serious problems that have thus far impeded the successful criminal prosecution of Zacarias Moussaoui, in many cases, no traditional criminal case could be brought at all against an al Qaeda agent found in the U.S. At the point of apprehension, we may not know what a terrorist is planning, his plans may not yet have ripened into prosecutable crimes, or the evidence we have against him may be derived from intelligence sources that cannot meet the normal standards of admissibility in a criminal courtroom.
And consider this:
Granting immunity from military detention to American agents of al Qaeda captured in the U.S. is thus a potentially crippling disservice to the war effort. If left undisturbed, the Second Circuit ruling would leave exceptionally dangerous individuals in our communities and reduce our ability to prevent further attacks on U.S. soil. It also creates shockingly perverse incentives for al Qaeda to do precisely what we are most desperate to prevent: recruit U.S. citizens to carry out acts of terrorism here.Keep in mind that the government keeps repeating that the "war on terror" will go on for an indefinite period of time -- and that it may well go on for as long as we live. But if Mr. Berenson, and I assume the administration, had their way, any United States citizen could be apprehended, taken into custody, and held for the rest of his life -- with no charges being filed, no recourse to an attorney, and with no hope of ever being set free, until and unless the President happens to change his mind.
Remember this, too: if this idea were to be established and accepted, it would provide the framework -- in principle -- for an absolute dictatorship. No, that dictatorship would not arrive overnight, but history demonstrates that dictatorships can arrive slowly, by degrees and by increasingly authoritarian steps. It need not happen all at once. But under this "reasoning" and in principle, every United States citizen could be imprisoned for a lifetime. End of story.
The only requirement is that the President declare you an "enemy combatant." He doesn't have to prove it; in fact, he doesn't have to divulge any of the grounds for his judgment. It's just his word -- and your life.
And we're protecting "freedom" here, and spreading "democracy" across the globe? Welcome to The Twilight Zone. Or 1984. You have a very wide range of choices as to literary references. One wonders what those in the administration and certain of their supporters read -- or think about.
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Even before this entry from January 1, 2004, I had written a couple of posts about the Padilla case, which I may republish as I have time. During that period, not many people were writing about the case, or about the issues it raised. Hardly any Americans even knew Padilla's name. Many more do today -- now that it is probably too late. I recall receiving a few emails in response to that essay and similar ones. In general, my emailers said I was being unduly pessimistic. I was an "alarmist." I wonder what they would say today, or if they remain determined to blind themselves to the principles involved.
On the subject of the non-opposition from the Democrats, even on an issue that is for once of genuinely transcendent importance, I have a few final comments. In addition to these observations from Jim Henley, with which I agree wholeheartedly, I reprise these thoughts from an essay about why Alito had to be filibustered, if the Washington Democrats had understood what was at stake:
I am not naive or unrealistic: the Democrats may well lose in the end. But when the stakes are this high -- and here, the stakes encompass everything that matters with regard to the future of our country -- you must fight, even if you lose. If the battle is waged with an understanding of the profound importance of the issues involved, at the very least the public will be more aware of the nature of the struggle by the time it is over. As a result, more people will be prepared to fight the next battle more effectively. Up until now, the Democrats have employed the opposite strategy: each surrender makes them progressively weaker, thus rendering them more incapable of fighting when the next crisis arises.And so it has come to pass: save for a few exceedingly rare exceptions, the Democrats as a party -- i.e., as an institution firmly embedded in the prevailing state system of growing authoritarianism -- and those who support them are not any concern of mine any longer.
...
When you are asked to accede to that which you know to be deeply immoral and wrong, and to be ultimately destructive of what once made the United States the great nation it was -- and if you care about honor, decency, your own life and the lives of your fellow Americans -- then you must say no, even if you are almost certain that you will lose.
A very powerful "No" could provide us with more time, time that is desperately needed to right our nation's course. It might save us -- and at the very least, those who say "No" will save their own souls and consciences. If the Democrats in Washington are unwilling or unable to act in this manner, they will have damned themselves. They will no longer be any concern of mine -- nor, I would submit, should they be a concern for anyone who understands the nature of this battle and who gives a damn.
...
If enough people said "No," we might still avoid the fate that seems more inevitable every day. The famous and now cliched statement is fully applicable here: "The only thing necessary for the triumph of evil is for good men to do nothing." Today, the Democrats do nothing, or as close to nothing as humanly possible. Because the Democrats still provide the illusion of opposition -- but only an illusion, without any substance or meaning behind it -- they allow people to convince themselves that we actually have had a debate that mattered. Of course, we never have such a debate any longer: we didn't have one about the invasion of Iraq, we are not having one now about the occupation of Iraq, and it appears that we may well not have one about the next Supreme Court nominee. But the fact that people can pretend that we have deliberated about these momentous decisions is an especially dangerous lie -- a lie made possible by the Democrats' performance.
If the United States should finally end up in the dustbin of discarded, decayed, corrupt civilizations, future historians should not wonder why. This is why: we turned our backs on what we had once stood for when we were sufficiently scared, when it seemed "expedient" to adopt the methods of those we said were our enemies, and when standing for justice, rights, and the dignity and worth of the single, lonely individual mattered the most -- and when the future of the world possibly hung in the balance.
And almost no one in public life had the courage to say that single word and mean it, even to his last breath if that was what this uniquely important battle demanded:
No.
And, I would submit, if you genuinely understand and care about the principles that gave rise to this nation, they should not be any concern of yours.
Left unchanged, the Military Commissions Act is certainly our country's death knell, in time. Yet even with these unfolding horrors, there is still one more shoe to drop -- and it may well drop before November. That is the coming attack on Iran. As with every other issue of literally earth-altering significance, the Democrats are completely unprepared; still worse, by their actions and statements, they are ensuring that such an attack is inevitable, and that there will be virtually no opposition of any consequence. The Democrats have certainly offered none to date. But we will undoubtedly hear many fine speeches from them about how we "should have given diplomacy more of a chance" and strewn with other meaningless gutter language -- after Bush's announcement of the bombing runs that have already begun, allegedly to eliminate an "intolerable" threat to "civilization." As with this latest legislation and every other issue of immense significance, the Democrats will show up only after the fact, when it is far too late to avert catastrophe. And do keep in mind one other terrifying fact: this particular catastrophe may be the last.
I will have more on that and other subjects within the next several days.
posted by Arthur Silber at 3:25 PM
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