Friday, June 13, 2008

Imperial Impunity

It would seem in post-Nazism and post-coldwarism that a giant of democracy and a foremost proponent of the Rule of Law would show leadership to the world by how it protects and preserves humanity and decency and the fine art of jurisprudence, particularly in the way in which it deals with those accused and waiting for their day in court. The common folk call it "Due Process." Some in the legal profession, be they lawyer or judge, used to do so, too, but not now. No sham can be honored with the word "Due" in front of the word "Process."

Many of us who grew up as children in WWII, too young to be patriotic all the way and march in parades, sing songs of war and go off to Europe or Asia to defeat the enemy, as our older teenage brothers did, often heard stories of that enemy, hoping that their capture would be effected by American troops. Americans were kind, gave chocolate bars to kids, bartered cigarettes for silk stockings, laughed a lot, even though dirty, scummed with the mud of battle, weary, yet deadly in a firefight, awesome with power of machine and weapon that simply could not be beaten.

And, my God, they were brave, brave beyond the calculated assessment of the hardened, professional, battle-proven, best and bravest of Japan and Germany. They thought American kids off the streets and the farms were amateurs. And yet, and yet, as the war grew on and on, it became evident, even to us youngsters and our parents, awash as we were in daily propaganda Dr. Goebbels would have given his eye-teeth, both arms and eyes for, we poured out our instinctive respect and love for our troops.

I learned this after the war, in a scholastics' rec room in Tokyo, listening to Bob Arrowsmith tell stories of his paratrooper days in the Pacific theatre, and Franz Schaffenberger talk of Mass for the troops by a German Jesuit prior to the Battle of the Bulge. I sat there, 25 years old, staring at two men just a few years older than I, who had been there, done that, in the bloodiest war of history. I was touching courage and decency and honor in each of them. I knew, in the early years of my own adulthood, schooling done, that I would never understand "war."

Please do not misunderstand me. I am not glorifying war. War is hell. Period. But, down on the ground, up in the air, on the seas, it was not always fought by inhuman monsters. Nor were wars won by torture of captured enemies. Even in the slaughter of the innocents, as in modern warfare, with pattern bombing, submarine sinkings, Coventry, Nanking, Hiroshima, Nagasaki, there is something called human decency which forbids the torture and killing of those who fought against our troops and were captured when their side lost. I'm pretty sure it is accurate to say that America did not have Abu Ghraib prisons in WWII, Korea, Viet Nam, Panama, Granada, the great wars in which we onlookers were no long kids too young to serve, but grown-ups, still swallowing the patent obfuscations of reality that our government sent out daily as the "gospel truth" about what is going on over there.

Today, our observations are those of the title in one of Thomas Merton's masterpieces – Conjectures of a Guilty Bystander. In our battle to squash Iraq, for a presidential emotive justification, or worse, a neoconical reason, and in those other skirmishes where we hope to wipe out the fanatics of Al Qaeda, we have "become accustomed to her face," the face of degrading, humiliating water boarding and plain, old-fashioned executions. Not by them. By us. And we Americans are demeaned. Democracy is but a buzz word. The Rule of Law was abrogated. We never noticed their passing.

All the above sounds good, reads well. But, it is a close one. Like 9 - 7, in the bottom of the ninth, with two men on, two outs, and the slugger of the team at bat. The pitcher is tired. Or, it's 4th and 1 in the Super Bowl, the losing team on its own 45, 24 - 21, a few more yards for a field goal try, 30 seconds on the clock. But it could be what the ultras jeer it is: just pie in the sky, or Lucy in the sky with diamonds. Because the United States Supreme Court's decision about the denial of Habeas Corpus to Guantanamo detainees was 5 – 4. The New York Times lead editorial on June 13, 2008 was "Justice 5, Brutality 4." That editorial is so insightful, that I copy it here below. The "Brutal Four" are Chief Justice Roberts, and his first team members, Justices Scalia, Thomas, Alito.

If you are concerned with my language, because you know I am a retired lawyer, know that I spoke this way when active in the practice of law. I do not like and fear Neocons, even if they wear judicial robes. Particularly, if they wear those robes in a court of last resort, which is the source of their Imperial Impunity. And I will so speak and write until I die, not even huffing that my opponents can then wrench the keyboard from my cold, dead hands, because I give it to one of my friends, who picks it up to go join the thousands of others whose keyboards tingle in tune together. We are being heard. We are being read. Time we should have been, but that's our own procrastination and apathy, isn't it? On which, they used to count and rely with Imperial Impunity.

May God preserve us from brutality, doing it rather than receiving it, for Jesus didn't duck the crucifixion at the high hands of Imperial Impunity and high priests who knew not what they were doing.

Also, and finally, a new phrase, you may have notice, has emerged to describe our country and its current administration: Imperial Impunity. That is why it's the title of this piece, thanks to its creator Tom Engelhardt, of TomDispatch at Truthout. The article in which it appeared is " 'E' for Expeditionary: One Man's Online Journey Through Bush's Alphabet Soup." At:

I think this acknowledgment is very important, because it is also a two-word description of the politics of the Vatican, its pope, its curia, and its cardinals, the top guns who are not accountable to anyone but God, so they say. We hope that is so, with great millstones biblically, but want basic responsibility from our leaders, based on tolerance, justice and accountability, now. Collegiality is no panacea, because the two Colleges – of Cardinals and of Bishops – have been selectively packed with look-alikes, walk-alikes, talk-alikes, one by one, since 1978, by Popes John Paul II and Benedict XVI.

That makes Bishop Geoffrey Robinson such a rarity that his own brothers must try to hush him up. So far, cardinalitial croziers and episcopal feet, dancing choreographically, are pounding sand.

Imperial Impunity is no Church.


June 13, 2008


Justice 5, Brutality 4

For years, with the help of compliant Republicans and frightened Democrats in Congress, President Bush has denied the protections of justice, democracy and plain human decency to the hundreds of men that he decided to label "unlawful enemy combatants" and throw into never-ending detention.

Twice the Supreme Court swatted back his imperial overreaching, and twice Congress helped Mr. Bush try to open a gaping loophole in the Constitution. On Thursday, the court turned back the most recent effort to subvert justice with a stirring defense of habeas corpus, the right of anyone being held by the government to challenge his confinement before a judge.

The court ruled that the detainees being held in Guantánamo Bay, Cuba, have that cherished right, and that the process for them to challenge their confinement is inadequate. It was a very good day for people who value freedom and abhor Mr. Bush's attempts to turn Guantánamo Bay into a constitutional-rights-free zone.

The right of habeas corpus is so central to the American legal system that it has its own clause in the Constitution: it cannot be suspended except "when in cases of rebellion or invasion the public safety may require it."

Despite this, the Bush administration repeatedly tried to strip away habeas rights. First, it herded prisoners who were seized in Afghanistan, and in other foreign countries, into the United States Navy base at Guantánamo Bay and claimed that since the base is on foreign territory, the detainees' habeas cases could not be heard in the federal courts. In 2004, the court rejected that argument, ruling that Guantánamo, which is under American control, is effectively part of the United States.

In 2006, the court handed the administration another defeat, ruling that it had relied improperly on the Detainee Treatment Act of 2005 to hold the detainees on Guantánamo without giving them habeas rights. Since then, Congress passed another law, the Military Commissions Act of 2006 that tried — and failed horribly — to fix the problems with the Detainee Treatment Act.

Now, by a 5-to-4 vote, the court has affirmed the detainees' habeas rights. The majority, in an opinion by Justice Anthony Kennedy, ruled that the Military Commissions Act violates the Suspension Clause, by eliminating habeas corpus although the requirements of the Constitution — invasion or rebellion — do not exist.

The court ruled that the military tribunals that are hearing the detainees' cases — the administration's weak alternative to habeas proceedings in a federal court — are not an adequate substitute. The hearings cut back on basic due process protections, like the right to counsel and the right to present evidence of innocence.

It was disturbing that four justices dissented from this eminently reasonable decision. The lead dissent, by Chief Justice John Roberts, dismisses habeas as "most fundamentally a procedural right." Chief Justice Roberts thinks the detainees receive such "generous" protections at their hearings that the majority should not have worried about whether they had habeas rights.

There is an enormous gulf between the substance and tone of the majority opinion, with its rich appreciation of the liberties that the founders wrote into the Constitution, and the what-is-all-the-fuss-about dissent. It is sobering to think that habeas hangs by a single vote in the Supreme Court of the United States — a reminder that the composition of the court could depend on the outcome of this year's presidential election. The ruling is a major victory for civil liberties — but a timely reminder of how fragile they are.


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