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The Lie of Law: Courts Bow to State's Raw Power

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I.
It is often forgotten how "legal" the Nazi regime in Germany really was. It did not take power in a violent revolution, but entered government through the entirely "legal" procedures of the time. The "legal" vote of the "legally" elected Reichstag gave Adolf Hitler the powers to rule by decree, thus imparting strict "legality" to the actions of his government.

Indeed, there were several cases when those who felt the government had overstepped the bounds of law in a particular instance actually took the Nazi regime to court, and won. Why? Because the government was bound by "the rule of law." And the fact is, almost the entire pre-Nazi judicial system of the German state remained intact and operational throughout Hitler's reign. The "rule of law" carried on.

Of course, as the Nazi regime plowed forward with its racist, militarist, imperialist agenda, this "rule of law" became increasingly elastic, countenancing a range of actions and policies that would have been considered heinous atrocities only a few years before. This trend was greatly accelerated after the Regime -- claiming "self-defense" following an alleged "invasion" by a small band of raiders -- launched a war which soon engulfed the world.

Naturally, in such unusual and perilous circumstances, jurists were inclined to give the widest possible lee-way to the war powers of the state. After all, as one prominent judge declared, the war had pushed the nation "past the leading edge of a new and frightening paradigm, one that demands new rules be written. War is a challenge to law, and the law must adjust."

-- No, wait. I must apologize for my mistake. That last quote was not, in fact, from a German jurist during the Nazi regime, but from a ruling issued this week by the United States Court of Appeals for the District of Columbia Circuit -- one of the highest courts in the land. The quoted opinion -- written by the legally appointed Judge Janice Rogers Brown -- was part of a sweeping ruling that greatly magnified the powers of the government to seize foreigners and hold them indefinitely without charges or legal appeal.

The court denied the appeal of Ghaleb Nassar al-Bihani, who has been held in captivity for more than eight years. What was his crime? He served as a non-combatant clerk for a unit on one side of the long-running Afghan civil war. This war was fought largely between factions of violent extremists; Bihani had the misfortune to be serving in the army of the "wrong" faction when the United States intervened on behalf of the opposing extremists in 2001. Jason Ditz summarizes the case well at Antiwar.com:

Bihani was a cook for a pro-Taliban faction fighting against the Northern Alliance before the 2001 US invasion, and his unit surrendered during the initial invasion.

The Yemeni citizen is accused of "hostilities against the United States" even though he arrived in Afghanistan nearly six months before the US invasion. Not only did his unit never fight against American forces, he was a cook who doesn't appear to have ever participated in any combat at all. Despite this, he was declared an enemy combatant.

Let's underscore the salient fact: Bihani never took up arms against the United States, was involved in no combat against the United States (or anyone else, apparently), played no part in any attack on the United States. Yet the court ruled that the United States can arbitrarily declare Bihani an "enemy combatant" and hold him captive for the rest of his life.

But the eminent judges did not stop there in their entirely "legal" ruling. As the New York Times reports, they went to declare that "the presidential war power to detain those suspected of terrorism is not limited even by international law of war." And later: "the majority's argument [is] that the president's war powers are not bound by the international laws of war."

Think of that. Let it sink in. The president's war powers cannot be constrained by the international laws of war. Whatever the Leader (no points for translating this term into German) decides to do in the course of a war is thus rendered entirely "legal." He cannot be accused of international war crimes because such things do not apply to him.

With this ruling -- which is all of a piece with many more that have preceded it -- we are well and truly "past the leading edge of a new and frightening paradigm." What is most frightening, of course, is the obscene philosophy of machtpolitik -- the craven kowtowing to the demands of brute force -- that is embodied in Judge Brown's chilling words: "War is a challenge to law, and the law must adjust."

Again, remember the context of this ruling. It deals with the Leader's power over foreign citizens in lands that the Leader's armies are occupying. The judicial "reasoning" expressed by Judge Brown could apply, without the slightest alteration, to the Nazi regime's various programs of mass killing and "indefinite detention" of "enemy" foreigners in occupied lands.

The "resettlement" of Eastern Europe -- in order to provide for the "national security" of the German people and the preservation of their "way of life" -- did indeed require a pathbreaking advance into a "new paradigm" on the part of the law. The exigencies and challenges of the war demanded, as Judge Brown would put it, that "new rules be written."

And so they were. Under the duly, officially, formally constituted German "law" of the time -- as interpreted and applied by obsequious jurists in the mold of Judge Brown and her fellow war power expander, Judge Brett Kavanaugh -- there was little or nothing that was "illegal" in the vast catalogue of Nazi wartime atrocities, including the Holocaust itself. The perpetrators were "only following orders," which had been issued by "legal" entities, acting through "legal" processes, under the direction of the "legal" executive authority, whose unrestrained war powers had been established and upheld by the "rule of law."

Now this legal philosophy -- the primacy of raw, unaccountable power -- is being openly established by the highest courts of the United States. President Barack Obama, whose legal minions fought so ferociously to deny the appeal of the non-combatant captive, has been an ardent proponent and practitioner of this philosophy since his first days in office. His administration has proclaimed that the torturers of the Bush administration will not be prosecuted, because they were just following orders -- orders which had been issued by legal entities, acting through legal processes, under the direction of the legal executive authority, whose unrestrained war powers had been established and upheld by the "rule of law."

II.
It was not always thus. A few years ago, when writing of the "constitutional and moral issues raised by Bush's liberty-gutting 'unitary executive' dictatorship" (which Obama has enthusiastically continued and expanded), I ran across a Supreme Court ruling from December 1866 -- more than 140 years ago: Ex Parte Milligan. In this ruling, which grew out of the wartime excesses of the Lincoln Administration, the Court -- dominated by five Lincoln appointees -- was unequivocal:

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Chris Floyd is an American journalist. His work has appeared in print and online in venues all over the world, including The Nation, Counterpunch, Columbia Journalism Review, the Christian Science Monitor, Il Manifesto, the Moscow Times and many (more...)
 

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Let me see, a treaty has been held, time out of mi... by James Hadstate on Thursday, Jan 7, 2010 at 8:37:03 AM
Thank you for this important article that should b... by daveys on Thursday, Jan 7, 2010 at 11:18:44 AM