*Note: Here is the column I spoke of a few days ago, giving a broader context to Bush's nomination of John Roberts to the Supreme Court. (More on Roberts here.) A version of this piece will be printed in the July 22 edition of The Moscow Times. This version was first posted at Counterpunch.org.*
The United States long ago ceased to be anything like a living, thriving republic. But it retained the legal form of a republic, and that counted for something: as long as the legal form still existed, even as a gutted shell, there was hope it might be filled again one day with substance.
But now the very legal structures of the Republic are being dismantled. The principle of arbitrary rule by an autocratic leader is being openly established, through a series of unchallenged executive orders, perverse Justice Department rulings and court decisions by sycophantic judges who defer to power – not law – in their determinations. What we are witnessing is the creation of a "Commander-in-Chief State," where the form and pressure of law no longer apply to the president and his designated agents. The rights of individuals are no longer inalienable, nor are their persons inviolable; all depends on the good will of the Commander, the military autocrat.
George W. Bush has granted himself the power to declare anyone on earth – including any American citizen – an "enemy combatant," for any reason he sees fit. He can render them up to torture, he can imprison them for life, he can even have them killed, all without charges, with no burden of proof, no standards of evidence, no legislative oversight, no appeal, no judicial process whatsoever except those that he himself deigns to construct, with whatever limitations he cares to impose. Nor can he ever be prosecuted for any order he issues, however criminal; in the new American system laid out by Bush's legal minions, the Commander is sacrosanct, beyond the reach of any law or constitution.
This is not hyperbole. It is simply the reality of the United States today. The principle of unrestricted presidential power is now being codified into law and incorporated into the institutional structures of the state, as Deep Blade Journal reports in an excellent compendium of recent outrages against liberty.
For example, on July 15, a panel of federal appellate court judges upheld Bush's sovereign right to dispose of "enemy combatants" any way he pleases, the Washington Post reports. In a chilling decision, the judges ruled that the Commander's arbitrarily designated "enemies" are non-persons: neither the Geneva Conventions nor American military and domestic law apply to such garbage. Bush is now free to subject anyone he likes to the "military tribunal" system he has concocted – a brutal sham that some top retired military officials have denounced as a "kangaroo court" that will be used by tyrants around the world to "hide their oppression under U.S. precedent."
One of the kowtowing jurists on the appeals panel was none other than John G. Roberts. Four days after he affirmed Bush's autocratic powers, Roberts was duly awarded with a nomination to the Supreme Court. Now he will be sitting in final judgment on this case – and any other challenges to Bush's peremptory commands. This is what is known, in the tyrant trade, as "a safe pair of hands."
The ruling by Roberts and his fellow Republican jurists ignores the fact that the Geneva Conventions – which lay down strict guidelines for the handling of any person detained by military forces, regardless of the captive's status – have been incorporated into the U.S. legal code, as Deep Blade points out. They cannot be abrogated by presidential fiat. And anyone who commits a "grave breach" of the Conventions – by facilitating the killing, torture or inhuman treatment of detainees (e.g., stripping them of all legal status and subjecting them to rigged tribunals) – is subject to the death penalty under American law.
This is why the Bush Faction labored so mightily to advance the absurd fiction that the Geneva Conventions are somehow voluntary – while simultaneously promulgating the sinister Fuhrerprinzip of unlimited presidential authority. The fiction was a temporary sop to the crumbling legal form of the Republic, a cynical perversion of existing law to keep justice at bay until the Fuhrerprinzip could be firmly established as the new foundation of the state.
It doesn't matter anymore if the president's orders to suspend the Conventions, construct a worldwide gulag, torture captives, spy on Americans, fabricate intelligence and wage aggressive war are illegal under the "quaint" strictures of the old dispensation; the courts, packed with Bushist cadres, are now affirming the new order, the "critical authority" of the Commander, beyond law and morality, on the higher plane of what Bush calls "the path of action."
This phrase – with its remarkable Mussolinian echoes – was incorporated into the official "National Security Strategy of the United States," promulgated by Bush in September 2002. That document in turn was drawn largely from a manifesto issued in September 2000 by a Bush Faction group whose members included Dick Cheney, Don Rumsfeld, Paul Wolfowitz and Jeb Bush. Their plan, often detailed here, envisioned the transformation of America into a militarized state: planting "military footprints" throughout Central Asia and the Middle East, invading Iraq (even if Saddam Hussein was already gone), expanding the nuclear arsenal, massively increasing the defense budget – and predicating all these "revolutionary" changes on the hopes for "a new Pearl Harbor" that would "catalyze" the lazy American public into supporting the militarist agenda.
This agenda is designed, the group said, to establish "full spectrum dominance" over geopolitical affairs, assuring control of world energy resources and precluding the rise of "any potential global rival" that might threaten the unchecked wealth and privilege of the American elite. The rule of law could only be a hindrance to such a scheme; hence its replacement by the Fuhrerprinzip and the "path of action."
There has been virtually no institutional resistance to this open coup d'etat. It's now clear that the American Establishment – and a significant portion of the American people – have given up on the democratic experiment. They no longer wish to govern themselves; they want to be ruled, by "strong leaders" who will "do whatever it takes" to protect them from harm and keep them in clover. They have sold their golden birthright of American liberty for a mess of coward's pottage.
Annotated sources can be found here.