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From my essay, “Understanding the Significance of Guantanamo: The Symbol of Omnipotent Power,” written almost two years ago, in May 2005:

And that, in brief, is why Guantanamo is so crucial to the Bush’s administration’s goals in its war, a war that will be never-ending if it has its way: Guantanamo symbolizes the Bush administration’s desire for omnipotent power  for the administration to be able to do whatever it wants, with no oversight or interference by anyone, including the federal judiciary and including those restraints imposed by the Constitution itself.

In this manner, especially when coupled with the great danger represented by the Padilla case, the Bush administration seeks to place itself beyond all restraint derived from any source, and to make itself all-powerful. If it is successful, that will definitively and absolutely spell the end of liberty in America  and the rest is only a matter of time, and of details. In this sense, it is entirely appropriate that Guantanamo is located where another omnipotent dictator already holds sway.

Whether Bush and his enablers will admit it or not, in fact the policies they seek to implement would make the United States itself into one gigantic Guantanamo: where any one of us can be detained indefinitely merely upon the word or desire of one person, with no charges ever filed against us, and where we can be abused or tortured, and perhaps even murdered, at will. And no one and nothing would be able to stop or even question them. That’s the future they want so desperately  and I suggest that you always keep it in mind and never, ever forget it. In an act of profound, historic cravenness and betrayal, the Congress acceded to the administration’s desire for absolute power, with the passage of the Military Commissions Act. As I detailed in “Thus the World Was Lost,” the Democrats offered no serious opposition, until it was far too late, and despite the fact that all of us had been on notice for several years that this battle would soon arrive: There is no question that the Military Commissions Act, given the language it now contains, grants  in principle  full dictatorial powers to the executive. As I explained in the earlier essay, the executive and certain entities it controls can designate anyone, including any American citizen, as an “unlawful enemy combatant.” That person can then be imprisoned for the rest of his life, with no recourse whatsoever. Period.

The critical point is what, in principle, the grant of power includes. As noted, the grant is absolute: it includes everything. As I have pointed out, the determination of the Bush administration to achieve absolute power has been indisputably clear since shortly after 9/11. And this is hardly the first time that I and others have noted that the mechanisms for a complete dictatorship have now been put in place.

With proper preparation, and with the requisite understanding that freedom itself was imperiled, the Democrats could have achieved these aims. All of us would be forever in their debt. Surely liberty itself is worth such a battle, isn’t it? But the Democrats did none of these things, so the bill passed. Thus, they share in the guilt and responsibility. The guilt and responsibility that accrues to the Democrats is not as great as that of the Republicans, but it is surely great enough. And when your freedom, and that of your family and friends, and that of every single one of us, is destroyed in this manner, how do you even go about measuring degrees of guilt? How do you say this failure is worse than that one? The bill passed. They all failed, Republicans and Democrats alike. In principle, torture was enshrined and liberty was destroyed.

Some argue that the Supreme Court will find the act, or at least certain key provisions, unconstitutional. That, too, is a hope, but I myself am far from certain that the Court will rule in such a manner. In any event, we do not know what the ultimate outcome will be as far as the judicial system is concerned.

So we are confronted with one stark certainty, opposed by fragile and uncertain future hopes. We know the Military Commissions Act destroys liberty at its very foundation. We do not know if this fatal injury will ever be ameliorated. The Act should have been stalled at the very least. It was not.

Destroying the very basis of liberty is not an event that occurs every day. Mark the date. Historians may well have cause to note it. A brief word to those who think the “Restoring the Constitution Act” is an effective means of combatting the immense evil represented by the Military Commissions Act. When I first read about this proposed legislation, I thought it was an important step in the right direction. After considering it further, I have concluded this is precisely the wrong way to fight this battle.

Let me repeat: the Military Commissions Act destroys the ultimate foundation of liberty, and it transforms the great evil of torture into a State-sanctioned means for treating those designated as enemies of the State by the executive and those who do his bidding, on any basis they choose or on no basis at all. (On the second point and in connection with the hell on earth to which such a government sanction can lead in time, see my series On Torture, and especially Part I.) The Act is an abomination in its totality, and in every detail.

If we genuinely seek to walk the long road back to a constitutional republic, the Act must be repealed. It must be wiped from the books completely. Instead, the Democrats propose to enact another bill, “correcting” the errors in the first. Inevitably, this will lead to endless debates, in Congress, in the courts and everywhere else, about how the two bills should be construed in relation to each other. These debates and confrontations will go on for years  and all the while, the Military Commissions Act will remain the law of the land, a law that destroys the very concept of law in terms of what it had once meant.

You do not “fix” evils of this kind. You obliterate them as required. It is required here. At long last, let the Democrats understand the nature of this battle, as I discussed it in the earlier essay. Let them educate themselves, other members of Congress, and the American public. Let them attempt to mobilize Americans to demand that the Act be repealed, on a scale and in a manner that cannot be ignored. All our political leaders endlessly praise those who give their lives in defense of liberty, as they should when it is true. (It is not true in Iraq.) If they are sincere in that praise to any degree at all, can’t they fight a legislative battle to restore the basis of liberty? They are being asked to take up only intellectual arms. For God’s sake, they can do it sitting down the entire time.

But, you say, Bush will veto legislation repealing the Military Commissions Act. I initially note that Bush is equally likely to veto any attempt to “fix” that Act. But if the Democrats waged the necessary campaign and enlisted a significant part of the American public on their side, then let him. He will stand alone, revealed as the enemy of liberty and civilization that he is. To my knowledge, Bush has demonstrated no courage on any issue at all in the full course of his life. Since he and his cabal are after absolute power and do not have much time remaining to achieve their goal, I suppose he might surprise us all and reveal a ruthless determination, devoid of conscience and decency, in the pursuit of a dictator’s powers. Given the ends he seeks, “courage” is a word that grants far too much dignity and humanity to such tenacity. It is the dogmatic obstinacy of an authoritarian; it is the stubbornness of a rabid, homicidal dog, that wants to make absolutely certain its prey is dead. Here, the prey is your liberty, and mine, and that of every single one of us.

Repeal the Military Commissions Act. Wipe the evil out of existence. I also note, realizing this argument very rarely applies in politics, that it is the right thing to do  constitutionally, legally, and morally. And the world will know that some Americans still give a damn about what’s right. Moreover, as Chris Floyd notes, there is an important strategic purpose as well: “Bush will doubtless veto any move to tamper with his beloved MCA, but at least the ‘will of the Congress’ argument in favor of gulags and tyranny will no longer apply when the case finally reaches the Supreme Court.”

That may be crucial, especially in light of this news: Detainees being held at the prison camp at Guantnamo Bay, Cuba, have lost their bid for access to US courts to challenge their open-ended detention in the war on terror.

In an important ruling announced Tuesday, a divided federal appeals court panel here dismissed cases filed by 63 detainees raising fundamental legal challenges to various aspects of the Bush administration’s approach to the war.

The ruling applies to every pending or future case — in effect closing all but a few doors to the courthouse for those being held at Guantanamo.

“Federal courts have no jurisdiction in these cases,” the appeals court declared.

The ruling is expected to be quickly appealed — perhaps to the full US Circuit Court of Appeals for the District of Columbia — or directly to the US Supreme Court.

At the center of the appeals case was the assertion that the newly enacted Military Commissions Act of 2006 (MCA) was an unconstitutional suspension of the writ of habeas corpus. Lawyers for the detainees argued that their clients enjoyed a constitutional right to challenge their open-ended detention before a neutral judge. If the Bush administration’s position prevailed, they said, it would mean that terror suspects at Guantanamo could be tossed into a legal black hole.

Two of the three appeals-court judges disagreed. They ruled that Congress did not violate constitutional protections when it passed the MCA. The law was approved in part to overturn last summer’s decision by the Supreme Court in Hamdan v. Rumsfeld, which overturned the military commission process proposed by the administration. Congress later passed the MCA.

“Everyone who has followed the interaction between Congress and the Supreme Court knows full well that one of the primary purposes of the MCA was to overrule Hamdan. Everyone, that is, except the detainees,” writes Judge Raymond Randolph in an opinion joined by Judge David Sentelle.

Judge Randolph says the detainee arguments are “creative but not cogent.” He adds, “To accept them would be to defy the will of Congress.”

About 400 detainees are currently held at Guantanamo. According to MSNBC.com, 110 are labeled ready for release. Among the others, only several dozen are likely to face trial before special organized military commissions. For those remaining, there appears to be no end in sight to their detention.

Writing for the panel, Judge Randolph said that Congress could not have been clearer about its intent when it passed the Military Commission Act. The law says the repeal of habeas jurisdiction in Guantanamo cases applies in all cases without exception. “It is almost as if the proponents of these words were slamming their fists on the table shouting, “When we say ‘all,’ we mean all — without exception!” Note carefully where we are: a judge defends absolute authoritarian rule, and embraces naked evil  and he cloaks and seeks to disinfect it with allegedly neutral, dispassionate “legal argument” and theory. History has seen this phenomenon many times before; the twentieth century saw it repeatedly. Those parallels should disabuse you of the pathetic notion that this battle is anything like one over tax policy or Social Security, or that it can be fought in the same manner.

The Democrats (and a few Republicans) have the opportunity to fight for liberty once again. It is a considerable miracle that they, and we, even have another chance of this kind. Let us see what they do with it. History will long remember the final outcome of this struggle  and history is not forgiving. “Good intentions” count for nothing. Let them act.

And we must let them know, in no uncertain terms, what liberty and honor now demand of them.

February 23, 2007

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