September 30, 2006

Impenetrable Fog on the Road to Hell: "Who Knows?"

In my lengthy post yesterday about the unending horrors contained in the Military Commissions Act, I repeatedly emphasized one major point: the public record conclusively establishes that, ever since a few months after 9/11, the Bush administration's most fervent wish and ultimate goal has been and remains to exercise dictatorial power over everyone, including all American citizens. One of the primary mechanisms for achieving such power is the designation of targeted individuals as "unlawful enemy combatants." Under the administration's procedures, no reason ever need be provided as to why a person has been identified as an "unlawful enemy combatant." Any individual so identified can be held indefinitely -- in principle, for the rest of his lifetime -- in the absence of any charges whatsoever, without recourse to a lawyer, and without any means to challenge his imprisonment. The Padilla case made indisputably clear that the administration sought to apply such absolute power to American citizens. See the earlier essay for many more details.

Most of us hopefully remember the manner in which the first version of the Patriot Act was passed in record time -- and how we soon learned that most members of Congress hadn't read many of its provisions, or even knew what those provisions contained. In the following months, stories appeared with some regularity about how a government agency was using a hitherto unknown law enforcement mechanism that was buried somewhere in the bowels of the Patriot Act -- and almost no one had even been aware of the mechanism's existence.

It's a hell of a way to run a government -- particularly when fundamental rights and liberties are at stake. The critical issue is that this manner of proceeding is typical of government, especially as it becomes more and more bloated and complex, and when legislation often runs to hundreds of pages. How could anyone possibly untangle or keep track of it all? No one can -- and that is precisely the point. Government of this kind far too often becomes a license for power-hungry government officials and sundry bureaucrats to run amok and wreak havoc on the lives of entirely innocent people. At worst, it becomes the road to tyranny.

In yesterday's essay, I underscored that "the writ of habeas corpus is the fundamental right for the political system originally envisioned by the founders of the United States." With regard to the Military Commissions Act, you would think it might be of some importance to our legislators to make unequivocally clear whether the destruction of habeas corpus applies to U.S. citizens or not.

You would, of course, be wrong. In most other circumstances, I would be the last person to recommend that you consult The Corner on any substantive issue at all. I will make an exception here. If you go to The Corner and scroll down about a third of the way, you will come across a series of posts trying to determine whether this legislation does in fact apply to U.S. citizens (most of those posts have "Clarity Please" in the title). The conclusion, as the noted sage, Mr. Rumsfeld, might put it, is simply: "Who knows?"

One post reprints an email, which contains this passage:
Look, I know that this stuff is hard to keep track of, and that you will be inclined to blow off my email. Please don't. This stuff matters. If nothing else, this debate should prove the absolute insanity of passing a bill that fundamentally alters essential and American rights when the public, and even highly educated people such as yourself, can't even figure out what's in it. All in order to provide "clarity"!

Via Marty Lederman, here is the final version of this abomination. As detailed in my earlier essay, I remain convinced that the critical provisions of this bill do apply to American citizens, as Jack Balkin explains.

That is what the Bush administration has wanted from the beginning. Now they've got it.

And unless this legislation is fundamentally altered, we are all headed straight into hell.