It is obviously not news to honest observers that the United States has only had a nominal democracy for quite some time--through much of its history because of legal disenfranchisement of tens of millions, but in more recent decades in virtue of the system of legalized bribery that drives the electoral and legislative processes; unbridled gerrymandering by both parties which ensures that representatives choose their voters rather than voters choosing their representatives in one of the two branches of Congress; and a winner-take-all system which results in the two viable parties differing only on details, rarely on matters of substantive importance to the welfare of human beings here or abroad.
Against the background of this sorry democratic farce, there were some of the trappings we associate with democratic and free societies--for example, a moderately independent judiciary and periodic legal protection--sometimes at the margins sometimes at the center--of dissent and disagreement. More recently, the independence of the judiciary has been under attack, as we have had occasion to note before, but, to the best of our current knowledge, we have not yet had a resurgence of the "secret police" pursuing political dissidents, as we did during the J. Edgar Hoover era and, more recently, during the Kennedy Administration, when that great "liberal" Robert Kennedy used the Attorney General's office, and the FBI, for unrestrained political persecution.
So the record had been mixed, even before Bush & his bestiary of madmen, but describing the U.S. as a nominally democratic society seemed to make some sense. Yet even that status officially ended last week. The legislation known as "the Military Commissions Act of 2006" (usefully described by Professor Balkin here)--approved by what might be called, euphemistically, "the supine Congress" and which is sure to be signed by the alleged President (on orders from the actual President, Dick Cheney)--is the stuff of totalitarian societies, pure and simple. (As Stephen Griffin (Law, Tulane) observes, the law should really be called the "Military Dictatorship Act," because that is what it actually is, all the bullshit to one side. Or as philosopher Matt Burstein wrote to me: "these fuckers read Kafka and Orwell as a god-damned manual, not as a critique!")
The full fascist impact of this legislation won't be felt immediately, of course, but its contours are so clear as to admit of no whitewashing: the Dear Leader, i.e., the executive, now has the right to disappear anyone, without having to answer to any other branch of government, except, perhaps, officials who serve at the pleasure of the executive. Hitler and Stalin and Mao had versions of this power; so, too, now does George W. Bush. If there is a pertinent difference, it is that the public culture in the U.S., at least currently, is still mildly resistant to capacious exercise of this power, at least against the proverbial "white folks" and other right-thinking and right-looking Americans.
Bill Edmundson has already touched on aspects of these developments, as has Jessica Wilson, but let us quote some other observers. Bruce Ackerman (Law, Yale) sent me the following piece he wrote for the Los Angeles Times on September 28, 2006:
BURIED IN THE complex Senate compromise on detainee treatment is a real shocker, reaching far beyond the legal struggles about foreign terrorist suspects in the Guantanamo Bay fortress. The compromise legislation, which is racing toward the White House, authorizes the president to seize American citizens as enemy combatants, even if they have never left the United States. And once thrown into military prison, they cannot expect a trial by their peers or any other of the normal protections of the Bill of Rights.
This dangerous compromise not only authorizes the president to seize and hold terrorists who have fought against our troops "during an armed conflict," it also allows him to seize anybody who has "purposefully and materially supported hostilities against the United States." This grants the president enormous power over citizens and legal residents. They can be designated as enemy combatants if they have contributed money to a Middle Eastern charity, and they can be held indefinitely in a military prison.
Not to worry, say the bill's defenders. The president can't detain somebody who has given money innocently, just those who contributed to terrorists on purpose.
But other provisions of the bill call even this limitation into question. What is worse, if the federal courts support the president's initial detention decision, ordinary Americans would be required to defend themselves before a military tribunal without the constitutional guarantees provided in criminal trials.
Legal residents who aren't citizens are treated even more harshly. The bill entirely cuts off their access to federal habeas corpus, leaving them at the mercy of the president's suspicions.
(The respects in which the Military Dictatorship Act of 2006 does apply to citizens as well is usefully described, once again by Professor Balkin, here.)
Attorney Marty Lederman, one of our most experienced and knowledgeable practitioners in this area:
The most striking thing about the bill--perhaps more than all of its substantive provisions--is that in case after case (e.g., defining "unlawful enemy combatants"; deciding whether commissions must abide by statutory standards; defining less-than-"grave" breaches of Common Article 3; deciding what process detainees will receive in lieu of habeas; etc.) it would (i) delegate virtually unbridled discretion to the Executive; and (ii) then attempt to foreclose any meaningful judicial review of the President's decisions (no matter how far those decisions might stray from remaining legal limits, such as treaty obligations), and purport to eliminate any precedential effect of other legal authorities that might cabin the Executive's discretion (e.g., international interpretations of Geneva; prior court decisions concerning the courts-martial system).
In other words, the principal theme and effect of this legislation is to systematically abdicate and destroy existing legislative and judicial checks and balances.
Attorney Glenn Greenwald:
Issues of torture to the side (a grotesque qualification, I know), we are legalizing tyranny in the United States. Period. Primary responsibility for this fact lies with the authoritarian Bush administration and its sickeningly submissive loyalists in Congress. That is true enough. But there is no point in trying to obscure the fact that it's happening with the cowardly collusion of the Senate Democratic leadership, which quite likely could have stopped this travesty via filibuster if it chose to (it certainly could have tried).
And herewith Senator Feingold of Wisconsin, one of the minority who voted against fascism:
[T]his legislation would permit an individual to be convicted on the basis of coerced testimony and hearsay, would not allow full judicial review of the conviction, and yet would allow someone convicted under these rules to be put to death. That is simply unacceptable. We would not stand for another country to try our citizens under those rules, and we should not stand for our own government to do so, either.
Not only that, this legislation would deny detainees at Guantanamo Bay and elsewhere-people who have been held for years but have not been tried or even charged with any crime-the ability to challenge their detention in court. Among its many flaws, this is the most troubling-that the legislation seeks to suspend the Great Writ of habeas corpus....
Habeas corpus is a fundamental recognition that in America, the government does not have the power to detain people indefinitely and arbitrarily. And that in America, the courts must have the power to review the legality of executive detention decisions....
As a group of retired judges wrote to Congress, habeas corpus "safeguards the most hallowed judicial role in our constitutional democracy--ensuring that no man is imprisoned unlawfully."
This bill would fundamentally alter that historical equation. Faced with an executive branch that has detained hundreds of people without trial for years now, it would eliminate the right of habeas corpus.
Under this legislation, some individuals, at the designation of the executive branch alone, could be picked up, even in the United States, and held indefinitely without trial and without any access whatsoever to the courts. They would not be able to call upon the laws of our great nation to challenge their detention because they would have been put outside the reach of the law.
That is unacceptable, and it almost surely violates our Constitution. But that determination will take years of protracted litigation....
Some have suggested that terrorists who take up arms against this country should not be allowed to challenge their detention in court. But that argument is circular--the writ of habeas allows those who might be mistakenly detained to challenge their detention in court, before a neutral decision-maker. The alternative is to allow people to be detained indefinitely with no ability to argue that they are not, in fact, enemy combatants. Unless any of my colleagues can say with absolute certainty that everyone detained as an enemy combatant was correctly detained--and there is ample evidence to suggest that is not the case--then we should make sure that people can't simply be locked up forever, without court review, based on someone slapping a "terrorist" label on them.
There is another reason why we must not deprive detainees of habeas corpus, and that is the fact that the American system of government is supposed to set an example for the world, as a beacon of democracy. And this provision will only serve to harm others' perception of our system of government.
A group of retired diplomats sent a very moving letter explaining their concerns about this habeas-stripping provision. Here is what they said: "To proclaim democratic government to the rest of the world as the supreme form of government at the very moment we eliminate the most important avenue of relief from arbitrary governmental detention will not serve our interests in the larger world...."
They have reservations not because they sympathize with suspected terrorists. Not because they are soft on national security. Not because they don't understand the threat we face. No. They, and we in the Senate who support the Specter amendment, are concerned about this provision because we care about the Constitution, because we care about the image that American presents to the world as we fight the terrorists. Because we know that the writ of habeas corpus provides one of the most significant protections of human freedom against arbitrary government action ever created. If we sacrifice it here, we will head down a road that history will judge harshly and our descendants will regret....
I am also very concerned about the definition of unlawful enemy combatant that is included in this legislation, and about the corresponding issue of the jurisdiction of the military commissions.
This legislation has been justified as necessary to allow our government to prosecute Khalid Sheikh Mohammed and other dangerous men recently transferred to Guantanamo Bay. Yet if you look at the fine print of this legislation, it becomes clear that it is much, much broader than that. It would permit trial by military commission not just for those accused of serious terrorist crimes, but also individuals, including legal permanent residents of this country, who are alleged to have "purposefully and materially supported hostilities" against the United States or its allies.
This is extremely broad, and key terms go undefined. And by including hostilities not only against the United States but also against its allies, the bill allows the U.S. to hold and try by military commission individuals who have never engaged, directly or indirectly, in any action against the United States.
Not only that, but the bill would also define as an unlawful enemy combatant subject to trial by military commission, anyone who "has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense." This essentially grants a blank check to the executive branch to decide entirely on its own who can be tried by military commission.
If we are going to establish military commissions outside of our traditional military and civilian justice systems, at a minimum we should explicitly limit their application to the worst of the worst, those who pose a serious threat to our country. We shouldn't leave it up to just one branch of government to make these incredibly important decisions....
Even more disturbing is that the bill appears to permit individuals to be convicted, and even sentenced to death, on the basis of coerced testimony. According to the legislation, statements obtained through cruel, inhuman, or degrading treatment, as long as it was obtained prior to December 2005 when the McCain amendment become law, would apparently be admissible in many instances in these military commissions.
Now, it is true that the bill would require the commission to find these statements have sufficient reliability and probative value. But why would we go down this road of trying to convict people based on statements obtained through cruel, inhuman, or degrading interrogation techniques? Either we are a nation that stands against this type of cruelty and for the rule of law, or we are not. We can't have it both ways.
The idea that coerced statements can be used as long as they were obtained long enough ago is appalling. It seems to assume that there was a lack of clarity in the law prior to December 2005. In fact, there was great clarity, until this Administration decided to invent a narrow definition of torture that had never been used or accepted anywhere in the civilized world. The McCain amendment was needed to get this Administration to return to the law. It was a repudiation of the legal theories of the infamous Bybee memo, which the Administration even said it was withdrawing once it was publicly revealed. Its enactment should not now be used as a dividing point before which evidence obtained through cruel and inhuman treatment can be used in court.
At times of great adversity, the strength of a nation's convictions is tested and its true character revealed. If we sacrifice or qualify our principles in the face of the tremendous challenge we face from terrorists who want to destroy America, we will be making a terrible mistake. If we cloak cruel or degrading interrogations done in the name of American safety with euphemisms like "alternative techniques," if we create arbitrary dates for when differing degrees of morality will apply, we will have betrayed our principles and ourselves....
In closing let me do something I don't do very often--and that is quote John Ashcroft. According to the New York Times, at a private meeting of high-level officials in 2003 about the military commission structure, then-Attorney General Ashcroft said: "Timothy McVeigh was one of the worst killers in U.S. history. But at least we had fair procedures for him." How sad that this Congress would seek to pass legislation about which the same cannot be said.
Columnist Molly Ivins--right here in good 'ole Austin, Texas--cuts to the chase:
Fellow citizens, this bill throws out legal and moral restraints as the president deems it necessary—these are fundamental principles of basic decency, as well as law.
I’d like those supporting this evil bill to spare me one affliction: Do not, please, pretend to be shocked by the consequences of this legislation. And do not pretend to be shocked when the world begins comparing us to the Nazis.
Some hip-hoppers started comparing Bush's America to the Nazis and fascists some time ago; but what are we to say to them now? That we only have one concentration camp in operation? (At least one that we actually know about!) That the dictatorial powers granted the executive are not race-specific? All this seems to be true. But it misses the actual point, as Molly Ivins, like everyone else who is awake, surely knows. In free and democratic societies, my right and your right to remain outside the state's detention centers does not depend solely on the judgment of the state's executive. It really is that simple. And the legislation passed last week eviscerates that right fully. All that stands between us and the worst tyrannies in human history are the non-legal norms of the background public culture and the possibility that the courts may at some point strike down portions of this legislation. How long these forces may provide protection from tyranny is hard to predict. But in a genuinely democratic society, with robust commitment to the rule of law, we shouldn't have to engage in this guessing-game.
So the fake "war on terror" has now laid the foundation for a genuine totalitarian tyranny in the United States. We are now fully on the path of what my colleague Kate Litvak aptly called "Stalinist creep-up":
It's the return of 'troikas' -- detentions without court warrants, interrogations without assistance of counsel, trials by puppet courts, all the while the currently unincarcerated crowd believes that this could only happen to criminals.
The Democrats have largely been craven in their cowardice on these issues, but to the extent there is resistance, it is coming from them. If they do not prevail decisively in the November elections, then I see little chance that democracy will be restored to the United States.