Whatever one thinks of traditional American democracy and the Constitution, the Bush regime is clearly departing from them, and establishing a whole new set of governing norms in which arbitrary executive decree and fascistic measures become the law of the land. And they have already gone quite far in hammering this into place.
Thursday's 5-3 Supreme Court decision in the case of Hamdan v. Rumsfeld was a clear setback in the legal arena for the Bush regime's attempts to radically remake society. Amidst widespread exposure of and worldwide public opinion mounting against the daily torture, inhumane conditions, and lack of basic legal rights of detainees at Guantanamo Bay, the Supreme Court ruled that the Bush regime cannot simply try detainees in military tribunals. The Court based its decision principally on the fact that Congress had not authorized these tribunals, in addition to the fact that the tribunals do not meet the requirements of Common Article 3 of the Geneva Conventions, in which detainees must be treated humanely and given a trial "affording all the judicial guarantees which are recognized as indispensable by civilized people". While the decision does not require that detainees be given all the legal rights in American courts, it does take issue with Bush's military tribunals for not giving the defendant the right to attend the trial, as well as the hearsay evidence, unsworn testimony, and evidence obtained through coercion the prosecution is allowed to use.
Not a Pendulum Swing Back to Normal
Hamdan v. Rumsfeld does have potentially widespread legal implications, it does not prevent the President from detaining whomever he wants, nor does it shut down the detention center at Guantanamo Bay. And already, Bush and his allies in Congress are working to hold their kangaroo courts in such a way that meets the Court's decision.
In a joint statement opposing the Supreme Court's ruling, Republican Senators Lindsey and Jon Kyl promised to "pursue legislation in the Senate granting the Executive Branch the authority to ensure that terrorists can be tried by competent military commissions." Bush's response was also to push for Congress to pass a law allowing for military tribunals that conform to the Supreme Court's decision.
What's worse is how the national political dialogue becomes one of accepting torture, detention without trial, and the whole logic of the "war on terrorism" while at best raising a few petty criticisms. No one in Congress or on the Supreme Court bench has stood up and unequivocally opposed the numerous war crimes this regime has committed, and when criticisms are made the concern comes down to "American credibility" abroad or whether the policy in question will work to ensure US military domination. When this reactionary political dialogue in the halls of power sets the terms of debate among the people, it only leads to a quiet acceptance of crimes that would otherwise shock anyone's moral conscience.
Remaking the Judiciary
While many look at the Hamdan v. Rumsfeld decision as a restoration of the balance of powers, when you step back and look at what's going on in the federal judiciary, as well as in this case, the reality is to the contrary.
Catherine Crier's How the Right is Wronging American Justice documents how the federal judiciary is being taken over by judges bent on establishing a theocracy in the US. Bush consults with powerful and well-funded Christian fundamentalist organizations and leaders about his judicial appointments. The result has been to stack the courts with those who claim that America should be a religious country by law, regardless of what the Constitution or the actual history says. Crier, a former Republican judge, warns, "Be Afraid. Be Very Afraid."
Along with making a narrow and hateful breed of Christian fundamentalism the law of the land, Bush's appointments to the federal judiciary also stand out for their willingness to allow his administration to get away with torture (literally), and arrogate increased power to the executive branch. Samuel Alito, for example, advanced a whole theory called the "unitary executive", in which power is concentrated in the executive branch at the expense of the other two branches.
Looking at Hamdan v. Rumsfeld in particular, the decision narrowly passed by one vote; Scalia, Thomas, and Alito dissented, while Roberts absented himself because he had already ruled in this case in favor of the Bush administration as an appeals court justice. The Supreme Court has been deeply divided in many recent decisions, and one more Bush appointee could mean all the difference. Displaying the bitter conflict on the bench, Justice Thomas did what he has never done in his 15 years on the Supreme Court: read his dissenting opinion aloud from the bench.
Stepping back, it is important to understand that the Constitution does not guarantee some timeless way in which the law will always be, but can be ripped up, ignored, amended, transformed, or re-interpreted depending on the interests of those in power at any given time. While there has been an established rule of law in the US since its founding, this itself has undergone profound change in the past 200 years. Slavery was once upheld, and discrimination against non-whites and women used to be codified as law. The way in which laws have been interpreted or carried out has never been fair and equal. But as society has undergone political, economic, and social changes, so too have the governing norms and laws. Any major progressive changes in the legal arena were not made at the behest of whoever is sitting on the bench, but were forced on those in power by massive social upheaval and resistance from below.
The changes in the legal arena and judiciary under the Bush regime are sweeping, and threaten to not only turn back the clock on any progress forced by resistance movements, but also rip up the rule of law going back hundreds of years. And while there is debate within the halls of power over just how far and fast to take this, there is no opposition to the whole direction this is going in. Just this month, 49 Senators voted for an amendment banning gay marriage; this would be the first time since the slavery existed and women were not allowed to vote that discrimination was written into the Constitution. And the Senate was short by only one vote of an amendment banning flag-burning, which would amount to writing restrictions on free speech into the Constitution.