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:

Constitutional protections not only apply "equally in war and peace" but also – in a dramatic extension of this legal shield – to "all classes of men, at all times, and under all circumstances." No emergency – not even open civil war – warrants their suspension. Even in wartime, the President's powers, though expanded, are still restrained: "he is controlled by law, and has his appropriate sphere of duty, which is to execute, not to make, the laws."

As I noted earlier in the piece:

It was a decisive ruling against a government that had far overreached its powers, stripping away essential liberties in the name of national security. The Justice who authored the majority opinion was a Republican, an old friend and political crony of the president who had appointed him. Even so, his ruling struck hard at the abuses set in train by his patron. He stood upon the law, he stood upon the Constitution, even in the aftermath of a shattering blow that had killed more than 600,000 Americans and almost destroyed the nation itself.

This is what the Court decided:

"The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism, but the theory of necessity on which it is based is false; for the government, within the Constitution, has all the powers granted to it, which are necessary to preserve its existence."

The author was Justice David Davis, an Illinois lawyer appointed by Abraham Lincoln after helping run the campaign that gave his old colleague the presidency in the fateful 1860 election. (Davis was also, by a strange quirk of history, the second cousin of George W. Bush's great-grandfather.) By the time the Court issued its ruling, Lincoln was dead, but the after-effects of his ever-expanding suspension of civil liberties during wartime were still roiling through the courts, and through America's fractured society.  The Milligan ruling was, in the words of legal scholar John P. Frank, "one of the truly great documents of the American Constitution," a "bulwark" for civil liberties, expansive and exacting in the Constitutional protections it spelled out.

The ruling acknowledged that there are times when the writ of habeas corpus may have to be suspended in an area where hostilities are directly taking place – but even this power, they noted, was highly circumscribed and specifically delegated to Congress, not the president. Lincoln exceeded this authority on numerous occasions, increasing the scope of his powers until the entire Union was essentially under martial law, and anyone arbitrarily deemed guilty of never-defined "disloyal practices" could be arrested or silenced – in the latter case by having their newspaper shut down, for instance. (Lincoln would sometimes – but not always – seek ex post facto Congressional authorization for these acts.) Some parts of the Union that the Lincoln administration thought particularly disloyal were officially put under martial law -- such as southern Indiana, where anti-war agitator Lambdin Milligan and four others were accused of a plot to free Confederate prisoners, and were summarily tried and sentenced to death by a military tribunal.

It was this case that the Court – five of whom were Lincoln appointees – overturned in such a decided fashion.

As noted, that ruling was made in a nation still reeling from a savage, titanic war fought on its own territory. Even in the midst of such turmoil, the idea that "the laws must adjust" to the exigencies of war -- even the extremity of ruinous civil war -- was considered anathema, even to conservative jurists with close ties to the government.

But no longer. Although, unlike a civil war, even the worst terrorist attack imaginable would pose no existential threat to the nation, today the merest whisper of the possibility of a limited terrorist incident shakes the United States to its foundations -- and people willingly line up to be stripped naked by machines, while courts crawl on their bellies before the terrible majesty of unrestrained executive power.

Be assured: the "rule of law" means nothing, protects nothing, sustains nothing. It can always be twisted and stretched by cowards, courtiers and power-seekers. Arthur Silber, as he does so often, cuts to heart of the matter in this powerful essay from 2009, "Concerning the State, the Law, and Show Trials":

The law is not some Platonic Form plucked from the skies by the Pure in Heart. Laws are written by men, men who have particular interests, particular constituencies, particular donors, and particular friends. ... Laws are the particular means by which the state implements and executes its vast powers. When an increasingly authoritarian state passes a certain critical point in its development, the law is no longer the protector of individual rights and individual liberty. The law becomes the weapon of the state itself -- to protect, not you, but the state from threats to its own powers. We passed that critical point some decades ago. The law is the means by which the state corrals its subjects, keeps them under control, and forbids them from acting in ways that the overlords might perceive as threatening. In brief, today, in these glorious United States, the law is not your friend.

Indeed it is not. In our "low dishonest" century, the "rule of law" has become the "lie of Authority" that Auden speaks of. It will not save us. What matters -- as always -- is moral courage in the face of power's encroachments. Sometimes this can be found within an institutional framework, as in the Supreme Court's bold expansion of legal rights to all people, "at all times, and under all circumstances" back in 1866; and of course it can be found in the lives and actions of individuals, acting singly or in concert. Auden again:

Defenseless under the night
Our world in stupor lies;
Yet, dotted everywhere,
Ironic points of light
Flash out wherever the Just
Exchange their messages:
May I, composed like them
Of Eros and of dust,
Beleaguered by the same
Negation and despair,
Show an affirming flame. 

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Comments (15)

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scott douglas said:

	... There is a chance...a faint hope? (Oh, am I finished before I've begun?) No. I'm OK: The Supreme Court may yet overturn this bullshit on appeal... But it is more frightening evidence of the severity of our rapid drift toward unabashed Totalitarianism. Clearly, 'Someone' has cut the anchor rope; and the reef is very close now...
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January 06, 2010
Votes: +11

Sean O'Neil said:

	... Mr Floyd -- Excellent analysis that people need to bear in mind... the piecemeal, "legal" methods by which totalitarian governments work their magic, and the way in which many people find themselves being "Good Germans" when asked to confront the government's totalitarian drift. PS: 4th para 2d sentence seems to have been hacked...
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January 06, 2010
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Sean O'Neil said:

	Another thought... The President's "war powers" have not even been invoked! What a shitty opinion that will probably pass muster at the SCOTUS review.
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January 06, 2010
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Bill Jones said:

	Minor typo Para 4 line 3 "he war placed the nation "
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January 06, 2010
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Chris Floyd said:

	... Sean, Bill, thanks very much for spotting the typo. I appreciate it.
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January 06, 2010
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Bill Jones said:

	Mr Floyd You seem to about one step ahead of Mr Greenwald who also seems to be exploring this same path.
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January 06, 2010
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john kelley said:

... "A sort of soul-blindness had me. Plainly I could see that we were being hemmed in; that the great net of that giant Warfare had us in its toils." (from 'A Dream of Armageddon', by H.G.Wells) ___________ Yes, The USA will have its final(?)major war. With Iran. The USA will have its final(?) ultra-right administration. It's in the cards (and perhaps in the stars as well). I hope John Lennon will excuse my amendment to his words,... War is almost over.

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January 06, 2010
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Harpfool said:

	Petraeus 2012 The Big O is just laying the groundwork for Petraeus. That's when all this comes to fruition. Rumour has it "Dave" was recently seen modelling stick-on "Great Dictator" moustaches in a Washington fancy dress shop. He was quoted as saying "I just want to see if it makes me look more regal."
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January 06, 2010
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Sean O'Neil said:

	... I gotta say, I like harpfool's sense of humor.
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January 07, 2010
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Art James, bebop-o, GoodCelery! said:

Chris spiel bad today two? I love this ... ` I don't know where? This is part plagiarism. I read a poem somewhere. ` ` never even noticed the missspieling then-- it was a old love letter! ` I used spiel. It was spell. misspelling. ` Thanks. These critters are undeveloped. Villains. Perdition. Corpses. Wailings. Walk dead. They are waiting. Despair. Death. ` Lookout! Gloster said in King Lear` ` As flies to wanton boys, are we ... They kill us for sport. (swat dead) ` I say`They/them sort of ilk are slime. Hog sop. Putrid. Psycho. Devil owned.

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January 07, 2010
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john kelley said:

	A day in the life Click on over to Big Dan's Big Blog, Thursday January 7th, scroll down to '3 children a day...'. There's a photo of five Afghani girls. Paste that on your desktop!
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January 07, 2010
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Martin White said:

Bears Repeating The analogy here is precisely apt. Observations like these have been made before, but they must be made again. 1. Watching a professional hockey game on TV, the direct military insertions were mind-boggling - a stealth bomber flyover, an Olympic coach unveiling a flag of the US hockey team that he said was used in the invasion of Iraq, the puck dropped by a camouflaged soldier - even in a country that is said by polls to have been in the majority against the recent wars and invasions, the public is saturated with this absurd glorification of the US military during sports contests. 2. Glossy magazines have, over the past couple of years, teemed with seemingly solicited pro-US military articles in bizarre contexts. Wired magazine, Esquire, Details, Outside magazine of all places, Ode - an obvious campaign to sway the armchair liberal consumer. 3. What were our counterparts in Nazi Germany, for they are our counterparts, saying about their elite leaders? What was the state and maneuver of their anti-war, or war-uninterested, or war-averse public? Nazi Germany had all of the failed social institutions that we have today - the courts, the newspapers, the corporate ownership of commerce, the military-industrial state, the private grumblings, the commmingled churches. Nothing in that society brought down the hegemonic state-corporate alliance - it was only military overreach on Russia, on its own part, that caused the cracks to spread in the giant edifice of destruction. So there is our destiny. Like CF, I advocate no violence against this structure, and pay my taxes. Voting in this system is pure chicanery, but we do have, so far, the ability to utter some truths without a bullet to the back of our heads. Our trade unionists have not been slaughtered, our ethnic minorities not gassed, but the failures of our time are no less than theirs. Because I have done this a few times, I know that this is likely to be ignored. There is no shame in that.

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January 07, 2010
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NonEntity said:

	The Myth of the Rule of Law Chris, You are one of the rare people I almost always enjoy reading and generally agree with. This particular post reminded me of a paper written by John Hasnas of Geo. Mason University called "The Myth of the Rule of Law." It's a magnificent paper and for some reason is no longer on the web proper. I had to go to "the way back machine" to find it. Check it out! - NonE
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January 08, 2010
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NonEntity said:

	The Myth of the Rule of Law (URL) Your board previewed my post with the link working, but posted it with no link, so the link to the article "The Myth of the Rule of Law" is here:
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January 08, 2010
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NonEntity said:

	The Myth of the Rule of Law (URL #2) Okay, let me try this... assemble from parts: (I've added random spaces to the link. Remove all of the spaces and the link should be good.) http : //web.archive.org /web/ 20001109191800 / http: //mason .gmu .edu /~jhasnas /MythWeb .htm
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January 08, 2010
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