Column No. 116 Steven Jonas, MD, MPH - July 27, 2006
The Supreme Court decision in the Hamdan case concerned the Bush Administration’s use of specially designed “military commissions,” not previously defined by U.S. law or the U.S. Uniform Code of Military Justice, at the prison camp at Guantanamo. The rules of these “commissions” deny the accused of any element of due process under either the U.S. Constitution or the Geneva Conventions concerning the treatment of prisoners of war, of which the U.S. is a signatory. The Supreme Court told the Bush Administration that it must abide by the Geneva Conventions, for they are part of the Constitution (see Article VI). The Court said that the President cannot decide on the advice of his Counsel (now the Attorney General) that those Conventions are "quaint" and then choose to ignore them at whim. Nor can Congress draft rather loosely some piece of legislation appearing to give the President the power to do so. Congress must abide by the Constitution too. A victory for progressives and the fight to preserve Constitutional Democracy in our beloved country? Not so fast.
Paraphrasing the title of a famous 1966 British film starring the then debonair romantic lead Michael Caine (this brilliant actor still represents the height of the debonair, even when playing the butler in Batman Returns) and Shelley Winters, “What’s it all about, Alfie?” Well, with the Georgites it is well known by now that, as Little Miss Buttercup sings to Captain Corcoran in Act II of the Gilbert and Sullivan operetta “H.M.S. Pinafore,” “Things are Seldom What they Seem.” On July 11, 2006, the Deputy Defense Secretary told the Senate Judiciary Committee that from now on the DOD is going to comply with both the Supreme Court decision in Hamdan and the Geneva Conventions as written (The New York Times, "White House Says Terror Detainees Have Basic Geneva Rights," July 12, 2006, p. A20.) No more of those nasty (and they are nasty) Military Commissions. Ah yes. But then at the same hearing, one Daniel Dell'Orto, the DOD principal deputy general counsel says "We would ask this body to render its approval for the system as currently configured" (same ref.). And on July 13 the Times reported that "Administration Prods Congress To Curb the Rights of Detainees" (NYT, July 13, 2006, p. 1).
As The Times noted in its lead editorial of July 16, 2006 entitled “The Real Agenda”: “This whole sorry story has been on vivid display since [Hamdan]. . . . For one brief, shining moment, it appeared that the administration realized it had met a [Constitutional] check that it could not simply ignore. . . . But by week’s end it was clear that the president’s idea of cooperation was purely cosmetic. At hearings last week, the administration made it clear that it merely wanted Congress to legalize President Bush’s illegal actions . . . . As for the Geneva Conventions, [the] administration . . . . want[s] to scrap the international consensus that no prisoner may be robbed of basic human dignity. . . . The most embarrassing moment came when Bush loyalists argued that the United States could not follow the Geneva Conventions because Common Article Three, which has governed the treatment of wartime prisoners for more than half a century, was too vague. Which part of ‘civilized peoples,’ ‘judicial guarantees’ or ‘humiliating and degrading treatment’ do they find confusing?”
Then on July 17, 2006, in his Times column entitled “The Definition of Tyranny,” Bob Herbert had this to say: “Congress is dithering. . . .as the administration of George W. Bush systematically trashes such fundamental American values as justice, due process, respect for human rights and submission to the rule of law. . . . In the kangaroo courts that the administration concocted to try detainees at Guantánamo Bay, Cuba, a defendant could be prevented from seeing the evidence against him, would not have the right to attend his own trial and would not have the right to appeal the sentence to a civilian court. . . . The court’s decision brought into sharp relief the importance of one of the most fundamental aspects of American government, the separation of powers. Checks and balances. Mr. Bush has tried to scrap the very idea of checks and balances. . . . Justice John Paul Stevens, who wrote the majority opinion in the Hamdan case, referred to a seminal quote from James Madison. The entire quote is as follows: ‘The accumulation of all powers, legislative, executive and judiciary, in the same hands, whether of one, a few or many, and whether hereditary, self-appointed or elective, may justly be pronounced the very definition of tyranny.’ ”
But then one must go on to ask, why are the Georgites so intent on getting around the Geneva Conventions? Is it because doing so will help "fight terror" most effectively? There is no evidence of that coming from the Georgites. Is it that they have a bunch of highly dangerous folks, most of whom could be easily proven guilty of high crimes as well as misdemeanors down at Gitmo? Well, no. It has been leaked on more than one occasion from a variety of sources that the vast majority of the unfortunates being held at Gitmo are guilty of nothing more than being in the wrong place at the wrong time. Is it thus that the Georgites know that if these folks were granted a fair trial most of them would have to be released and the DOD would have egg all over its face? Well, yes. But that is still not the reason, in my view. Their spin machine, lead by the Privatized Ministry of Propaganda, could handle that one, one, two, and three.
What the Georgites are now in the process of doing is confirming their position that as long as the President says that he is "fighting terrorism" he can do whatever he wants to whomever he wants to whenever he wants to do it. The legislation on how to handle Gitmo-type prisoners as so far drafted supposedly meets the Supreme Court's Hamdan requirements. But it doesn’t (Center for American Progress: The Progress Report, July 18, 2006, “NATIONAL SECURITY: The Specter of Compromise”). In classic Georgite fashion it says that it is abiding by the Geneva Conventions, while it is violating them. It says that the President will abide by the limits on his power prescribed by Article II of the Constitution, when it does anything but.
Thus it confirms the President's claim that he can violate the Constitution whenever he pleases to do so under some totally imaginary "Commander-in-Chief" powers. (In Article II, the Founders were very explicit about what the President's powers were and were not to be. If they had wanted to say that in his role as Commander-in-Chief he could violate any provision of the Constitution he wanted to as long as he deemed it necessary, they would have just given him that power. They didn't. Hey, who is an "Original Constructionist" now?) By the time the matter gets back to the Supreme Court, first of all Roberts will be voting, and second of all it is highly likely that at least one of the liberals will have been replaced, for one reason or another. And then the Georgites will have their equivalent of the Hitlerite Enabling Act of 1933 which gave that person the power to over-ride the German Constitution whenever he pleased to do so.
And so, well beyond Gitmo and violating the Geneva Conventions provisions of the Constitution explicitly, why are the Georgites trying so hard to get around the Constitutional system of checks and balances? And why do the Georgites want to do away with the most central element in the Constitution concerning how governing is to be conducted and how government should operate? Why are they, in Bob Herbert’s words, absolutely intent on establishing tyranny right here at home? To deal with "terrorism?" Well, as pointed out above, hardly. To have the President’s “hands untied” so that he can deal directly and most effectively and efficiently with such major national problems as the uncontrolled export of US capital and with it US jobs, the Hurricane Katrinas, the rapid degradation of our domestic environment, global warming, massive government corruption? Well, hardly.
In fact, there is an increasing amount of opposition among Americans of whatever political stripe, except Right-wing Christian Fundamentalism, to all the major Georgite policies, on the War, on the economy, on the environment, on global warming, on corruption, on the very nature of government and its functions. Especially if the Georgites continue to steal elections, that opposition could become seriously organized, it could become seriously militant, it could become seriously dangerous to the continued existence of Georgite authoritarianism. As Winston Churchill once said: “The power of the executive to cast a man into prison without formulating any charge known to the law, and particularly to deny him the judgment of his peers, is in the highest degree odious, and the foundation of all totalitarian government whether Nazi or Communist" (courtesy of International Clearinghouse, emailtom@coxnet, 7-12-06). And you thought that you weren't labelable as a "terrorist," didn't you? See you in the camps, folks. And that's what it's all about, Alfie.
Author’s note: This column is based in part on a Comment of mine that appeared on BuzzFlash, on July 14, 2006, under the same title (http://www.buzzflash.com/jonas/06/07/jon06012.htm).