I wrote a piece here a few days ago on a recent ruling by the Supreme Court, in which the justices agreed with the passionate plea of the Obama Administration to uphold -- and establish as legal precedent -- some of the most egregious of the Bush Administration's authoritarian perversions. This was the gist of the ruling:
The Supreme Court acquiesced to the president's fervent request and, in a one-line ruling, let stand a lower court decision that declared torture an ordinary, expected consequence of military detention, while introducing a shocking new precedent for all future courts to follow: anyone who is arbitrarily declared a "suspected enemy combatant" by the president or his designated minions is no longer a "person." They will simply cease to exist as a legal entity. They will have no inherent rights, no human rights, no legal standing whatsoever -- save whatever modicum of process the government arbitrarily deigns to grant them from time to time, with its ever-shifting tribunals and show trials.
One of the attorneys involved in the case rightly likened the ruling to the infamous 1857 Dred Scott decision, in which the Court declared that any person of African descent brought to the United States as a slave -- or their descendants, even if they had been freed -- could never be citizens of the United States and were not protected by the Constitution. They were non-persons under the law; sub-humans.
I noted the grim irony that this principle of non-personhood had now been reintroduced into the law of the land by our first African-American president. (But this is only to be expected, given the law of opposites that so often governs American politics: only a lifelong Red-baiter like Nixon could make an opening to Communist China; only a supposed liberal like Bill Clinton could gut the federal welfare system. And only an African-American president could reintroduce the principle of slavery and get away with it. No doubt it will be a woman president who finally re-imposes a total ban on abortion.)
My piece was picked up by a few other sites, where it attracted some criticism for being too "extreme," too shrill, too panicky and exaggerated. After all, some critics said, this case involves foreigners rounded up in the context of a military conflict. (An undeclared, open-ended, borderless, lawless conflict, but still.) And while one might consider the captives treatment a bit too rough or unjust, it is still a far leap to conclude that the Supreme Court ruling implies some kind of general attack on the liberties of real, honest-to-god American citizens!
Ah, what bliss it must be, to dwell in such sweet ignorance. The many decisions by the Supreme Court and lower courts upholding the federal government's authoritarian power to strip Terror War captives of inherent and inalienable legal rights are part of a larger framework that applies both in theory and in practice to everyone -- American citizens included. What we are seeing is the construction of a new "social contract," the open codification of a new relationship between the individual and the state, in which all powers and rights reside solely in the latter, which can bestow them or withhold them at will, arbitrarily, unaccountable. In contrast, it is the individual who must be totally accountable to the state. The state is bound by no law, but the individual is subject to them all -- including "secret laws" and decrees and executive orders of which he or she has no knowledge.
The state has always tended toward the imposition of this feudal condition, of course -- hence the many balks and bafflements to state power that have been attempted over the years. But now the exaltation of state power over any claim of individual rights is being openly declared, avidly pursued, and judicially ratified.
And yes, Virginia, it all applies to American citizens as well. Chris Hedges demonstrates this clearly in a devastating piece on the case of American citizen Syed Fahad Hashmi. Below is an excerpt, but you should read the whole piece:
Syed Fahad Hashmi can tell you about the dark heart of America. He knows that our First Amendment rights have become a joke, that habeas corpus no longer exists and that we torture, not only in black sites such as those at Bagram Air Base in Afghanistan or at Guantánamo Bay, but also at the federal Metropolitan Correctional Center (MCC) in Lower Manhattan. Hashmi is a U.S. citizen of Muslim descent imprisoned on two counts of providing and conspiring to provide material support and two counts of making and conspiring to make a contribution of goods or services to al-Qaida. As his case prepares for trial, his plight illustrates that the gravest threat we face is not from Islamic extremists, but the codification of draconian procedures that deny Americans basic civil liberties and due process....
Hashmi, who if convicted could face up to 70 years in prison, has been held in solitary confinement for more than 2½ years. Special administrative measures, known as SAMs, have been imposed by the attorney general to prevent or severely restrict communication with other prisoners, attorneys, family, the media and people outside the jail. He also is denied access to the news and other reading material. Hashmi is not allowed to attend group prayer. He is subject to 24-hour electronic monitoring and 23-hour lockdown. He must shower and go to the bathroom on camera. He can write one letter a week to a single member of his family, but he cannot use more than three pieces of paper. He has no access to fresh air and must take his one hour of daily recreation in a cage. ...
“My brother was an activist,” Hashmi’s brother, Faisal, told me by phone from his home in Queens. “He spoke out on Muslim issues, especially those dealing with the wars in Iraq and Afghanistan. His arrest and torture have nothing to do with providing ponchos and socks to al-Qaida, as has been charged, but the manipulation of the law to suppress activists and scare the Muslim American community. My brother is an example. His treatment is meant to show Muslims what will happen to them if they speak about the plight of Muslims. We have lost every single motion to preserve my brother’s humanity and remove the special administrative measures. These measures are designed solely to break the psyche of prisoners and terrorize the Muslim community. These measures exemplify the malice towards Muslims at home and the malice towards the millions of Muslims who are considered as non-humans in Iraq and Afghanistan.”
...“Most of the evidence is classified,” Jeanne Theoharis, an associate professor of political science at Brooklyn College who taught Hashmi, told me, “but Hashmi is not allowed to see it. He is an American citizen. But in America you can now go to trial and all the evidence collected against you cannot be reviewed. You can spend 2½ years in solitary confinement before you are convicted of anything. There has been attention paid to extraordinary rendition, Guantánamo and Abu Ghraib with this false idea that if people are tried in the United States things will be fair. But what allowed Guantánamo to happen was the devolution of the rule of law here at home, and this is not only happening to Hashmi.”
The case against Hashmi revolves around the testimony of Junaid Babar, also an American citizen. Babar, in early 2004, stayed with Hashmi at his London apartment for two weeks. In his luggage, the government alleges, Babar had raincoats, ponchos and waterproof socks, which Babar later delivered to a member of al-Qaida in south Waziristan, Pakistan. It was alleged that Hashmi allowed Babar to use his cell phone to call conspirators in other terror plots.
“Hashmi grew up here, was well known here, was very outspoken, very charismatic and very political,” said Theoharis. “This is really a message being sent to American Muslims about the cost of being politically active. It is not about delivering alleged socks and ponchos and rain gear. Do you think al-Qaida can’t get socks and ponchos in Pakistan? The government is planning to introduce tapes of Hashmi’s political talks while he was at Brooklyn College at the trial. Why are we willing to let this happen? Is it because they are Muslims, and we think it will not affect us? People who care about First Amendment rights should be terrified. This is one of the crucial civil rights issues of our time. We ignore this at our own peril.”
Babar, who was arrested in 2004 and has pleaded guilty to five counts of material support for al-Qaida, also faces up to 70 years in prison. But he has agreed to serve as a government witness and has already testified for the government in terror trials in Britain and Canada. Babar will receive a reduced sentence for his services, and many speculate he will be set free after the Hashmi trial. Since there is very little evidence to link Hashmi to terrorist activity, the government will rely on Babar to prove intent. This intent will revolve around alleged conversations and statements Hashmi made in Babar’s presence. Hashmi, who was a member of the New York political group Al Muhajiroun as a student at Brooklyn College, has made provocative statements, including calling America “the biggest terrorist in the world,” but Al Muhajiroun is not defined by the government as a terrorist organization. Membership in the group is not illegal. And our complicity in acts of state terror is a historical fact.
There will be more Hashmis, and the Justice Department, planning for future detentions, set up in 2006 a segregated facility, the Communication Management Unit, at the federal prison in Terre Haute, Ind. Nearly all the inmates transferred to Terre Haute are Muslims. A second facility has been set up at Marion, Ill., where the inmates again are mostly Muslim but also include a sprinkling of animal rights and environmental activists...
I have been writing about this since November 2001, when George W. Bush's authoritarian claims over the liberty -- and lives -- of every human being on earth were first coming to light. (And not in dogged investigative reports, but in open, laudatory stories in the mainstream media.) It is very simple: all the government has to do is declare, arbitrarily, with no due process, that you -- yes, you, Mister and Ms American Citizen -- are a terrorist, or suspected terrorist, or an enemy combatant, and you can be stripped of your legal personhood, plunged into a gulag, confined indefinitely, plunged into isolation -- or killed.
I agree that this is a very upsetting situation, and not very pleasant to think about. But pretending that it is not a reality will not make it go away.