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."
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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