High Water Everywhere: Court Ruling Won't Stem the Terror War Flood

The recent Supreme Court decision restoring habeas corpus rights for Terror War captives in Guantanamo Bay is a welcome development, of course. It is a stern rebuke to a key provision of the odious Military Commissions Act (MCA), which officially surrendered American liberty to presidential tyranny. But this sinister and shameful law  still remains in force; what's more, the Supreme Court ruling does not address the Act's core principle: the president's arbitrary power to declare anyone an "enemy combatant" and dispose of them as he pleases – even killing them. Thus the most likely effect of this carefully circumscribed ruling will be that the gulag's darkest operations are merely moved deeper into the shadows.

The Supreme Court decision deals exclusively with the captives being held at the American military base on Guantanamo Bay.The majority opinion takes great pains to delineate the special historical circumstances surrounding the base's existence, especially the fact that the United States has excercised unbroken and unchallenged de facto sovereignty over the territory for more than 100 years. While Cuba retains nominal sovereignty, by treaty the United States represents the sole legal authority on the 45-square mile patch of land and sea. Thus the Court's conclusion: "We hold that [the habeas corpus clause] of the Constitution has full effect at Guantanamo Bay." Later, the majority opinion is even more explicit on the limitations of the ruling: "Our decision today holds only that the petitioners before us [all of them Guantanamo detainees] are entitled to seek the writ."

Furthermore, the justices uphold the kangaroo-court Combatant Status Review Tribunals (CSRT) established by the MCA. In these tribunals, as Andy Worthington notes, the captive has no legal representation, and no right to challenge – or even see – "secret evidence" presented by his captors to determine his "enemy combatant" status. The justices also declare that, in general, any habeas corpus hearings for Guantanamo captives should be put off until after these Kafkaesque tribunals are completed. And the majority ruling explicitly states that it takes no opinion on the law that allows the President to arbitrarily detain captives at Guantanamo in the first place.

Thus while the ruling may have some eventual effect on the operations of the Guantanamo camp – an intended showcase that has long turned into a  PR headache that Washington would like to be rid of in any case -- there appears to be nothing in the decision to stop the Bush Regime from stuffing Terror War captives into any of the innumerable other holding pens it operates around the world, or renditioning them to the tender mercies of cooperative foreign governments, or, as noted above, simply killing them, as has been done in a number of cases that George W. Bush has openly bragged about.

This despite the fact that large numbers of those who have poured into the Terror War gulag over the years have been completely innocent, as the McClatchy news service has been detailing in a remarkable new series. Indeed, at one point, the International Red Cross determined that between 70-90 percent of the thousands being held by the Americans in Iraq were innocent of any crime, much less terrorism or insurgent activity. And the treatment meted out to these captives has been brutal, often bestial, sometimes fatal, as we've reported here (and elsewhere) for years. Again, another story in the McClatchy series gives an excellent roundup of some of the most egregious known cases – and the lack of any real punishment even for the murder of detainees.

There is a good reason for this lack of justice, as McClatchy notes: George W. Bush deliberately created a fog of lawlessness to cover the tortures that he and his top minions – the "National Security Principals" – ordered, with full knowledge that these actions were crimes subject to the death penalty under U.S.  law. McClatchy:

In February 2002, President Bush issued an order denying suspected Taliban and al Qaida detainees prisoner-of-war status. He also denied them basic Geneva protections known as Common Article Three, which sets a minimum standard for humane treatment…Bush's order made it hard to prosecute soldiers for breaking such rules under the military's basic law, the Uniform Code of Military Justice, in large part because defense attorneys could claim that troops on the ground didn't know what was allowed.

Under these circumstances, it is indeed a waste of time to try to prosecute the small fry and cannon fodder sent to do the Bush Regime's dirty work. The chief criminal responsibility clearly lies with those in the highest reaches of power who created the gulag system. They have admitted – even bragged – of their  detailed knowledge and approval of the systematic tortures practiced, at their orders, in the gulag. Their own legal advisors confirmed that the scheme exposed the "Principals" to prosecution for capital crimes. It is clear beyond dispute that if law exists, then George W. Bush, Dick Cheney, Don Rumsfeld and the other "Principals" have broken it.

But what if law does not exist? What if it is just a convenient fiction, or perhaps an article of faith, given force only as long as its adherents (or a sufficient number of them) act as if it had some independent existence? What if those on the commanding heights of power refused to acknowledge this article of faith, refused to believe that it should – or could -- put any compelling restraint on their actions? What would happen then?

(Continued after the jump)

We have seen what would happen. We have seen it for years, we are seeing it now – and we have almost certainly not seen the worst of it yet. As I noted in 2006, after the passage of the Military Commissions Act:

The measure sets forth clearly that the designation of an "enemy combatant" is left solely to the executive branch; neither Congress nor the courts have any say in the matter. When this new law is coupled with the existing "Executive Orders" authorizing "lethal force" against arbitrarily designated "enemy combatants," it becomes, quite literally, a license to kill -- with the seal of Congressional approval.

How arbitrary is this process by which all our lives and liberties are now governed? Dave Niewert at Orcinus has unearthed a remarkable admission of its totally capricious nature. In an December 2002 story in the Washington Post, then-Solicitor General Ted Olson described the anarchy at the heart of the process with admirable frankness:
"[There is no] requirement that the executive branch spell out its criteria for determining who qualifies as an enemy combatant," Olson argues.
 "'There won't be 10 rules that trigger this or 10 rules that end this,' Olson said in the interview. 'There will be judgments and instincts and evaluations and implementations that have to be made by the executive that are probably going to be different from day to day, depending on the circumstances.'"
In other words, what is safe to do or say today might imperil your freedom or your life tomorrow. You can never know if you are on the right side of the law, because the "law" is merely the whim of the Leader and his minions: their "instincts" determine your guilt or innocence, and these flutterings in the gut can change from day to day. This radical uncertainty is the very essence of despotism -- and it is now, formally and officially, the guiding principle of the United States government.

As we've seen, the recent Supreme Court decision deals solely with the question of habeas corpus rights for Guantanamo detainees. The majority opinion insists that the rest of the Military Commission Act is not affected in any way by the ruling. It stands – just as it has stood throughout the entire 18 months that the Democrats have controlled Congress. They have not challenged the arbitrary power of the executive – nor the president's license to kill. As I noted in that earlier piece:

And underlying this edifice of tyranny is the prerogative of presidential murder. Perhaps the enormity of this monstrous perversion of law and morality has kept it from being fully comprehended. It sounds unbelievable to most people: a president ordering hits like a Mafia don? But that is our reality, and has been for five years [now seven years]. To overcome what seems to be a widespread cognitive dissonance over this concept, we need only examine the record -- a record, by the way, taken entirely from publicly available sources in the mass media. There's nothing secret or contentious about it, nothing that any ordinary citizen could not know -- if they choose to know it.

I laid out some of the details in an even earlier piece, from 2005 (see the original for the supporting links):

On September 17, 2001, George W. Bush signed an executive order authorizing the use of "lethal measures" against anyone in the world whom he or his minions designated an "enemy combatant." This order remains in force today. No judicial evidence, no hearing, no charges are required for these killings; no law, no border, no oversight restrains them. Bush has also given agents in the field carte blanche to designate "enemies" on their own initiative and kill them as they see fit.

The existence of this universal death squad– and the total obliteration of human liberty it represents – has not provoked so much as a crumb, an atom, a quantum particle of controversy in the American Establishment, although it's no secret. The executive order was first bruited in the Washington Post in October 2001. I first wrote of it in my Moscow Times column in November 2001. The New York Times added further details in December 2002. That same month, Bush officials made clear that the dread edict also applied to American citizens, as the Associated Press reported.

The first officially confirmed use of this power was the killing of an American citizen in Yemen by a CIA drone missile on November 3, 2002….

From the 2006 piece:

However, there is simply no way of knowing at this point how many people have been killed by American agents operating outside all judicial process. Most of the assassinations are carried out in secret: quietly, professionally. As a Pentagon document uncovered by the New Yorker in December 2002 revealed, the death squads must be "small and agile," and "able to operate clandestinely, using a full range of official and non-official cover arrangements to ... enter countries surreptitiously."

What's more, there are strong indications that the Bush administration has outsourced some of the contracts to outside operators. In the original Post story about the assassinations - in those first heady weeks after 9/11, when administration officials were much more open about "going to the dark side," as Cheney boasted on national television - Bush insiders told the paper that "it is also possible that the instrument of targeted killings will be foreign agents, the CIA's term for nonemployees who act on its behalf.

I ended the 2005 piece on Bush's global death squad with a passage that I've quoted a few times since then. But I want to reference it again here, because I think it captures what is perhaps the quintessence of our times: the bipartisan Establishment rising to applaud an open admission of murder by a lawless leader conducting an endless war of terror, aggression and torture. It was

one of the most revolting scenes in recent American history: Bush's State of the Union address in January 2003, delivered to Congress and televised nationwide during the final frenzy of war-drum beating before the assault on Iraq. Trumpeting his successes in the Terror War, Bush claimed that "more than 3,000 suspected terrorists" had been arrested worldwide – "and many others have met a different fate." His face then took on the characteristic leer, the strange, sickly half-smile it acquires whenever he speaks of killing people: "Let's put it this way. They are no longer a problem."

In other words, the suspects – and even Bush acknowledged they were only suspects – had been murdered. Lynched. Killed by agents operating unsupervised in that shadow world where intelligence, terrorism, politics, finance and organized crime meld together in one amorphous, impenetrable mass. Killed on the word of a dubious informer, perhaps: a tortured captive willing to say anything to end his torment, a business rival, a personal foe, a bureaucrat looking to impress his superiors, a paid snitch in need of cash, a zealous crank pursuing ethnic, tribal or religious hatreds – or any other purveyor of the garbage data that is coin of the realm in the shadow world.

Bush proudly held up this hideous system as an example of what he called "the meaning of American justice." And the assembled legislators…applauded. Oh, how they applauded! They roared with glee at the leering little man's bloodthirsty, B-movie machismo. They shared his sneering contempt for law – our only shield, however imperfect, against the blind, brute, ignorant, ape-like force of raw power. Not a single voice among them was raised in protest against this tyrannical machtpolitik: not that night, not the next day, not ever.

And there is still no voice in the corridors of power crying out against this abomination. Not one.

So yes, the Supreme Court decision is very welcome; if it eases the suffering of one innocent person, it will have done a great thing. But it is only a pebble cast up against a raging sea of blood that has long broken down the floodwalls and is drowning the land.