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Beyond Chron
May 4, 2004

Copyright © 2004 by Marc Norton

So, who said that the appeals court in New York "went too far... [when] it reasoned that the President lacks authority to hold citizens as enemy combatants without express authorization from Congress. Checks and balances are undoubtedly critical, but that view suggests that if a citizen who was an Al Qaeda member were apprehended entering the country with a nuclear bomb, the President could not detain him as a combatant."

The New York court ruled that Jose Padilla should either be charged with a crime in a regular criminal court, or released. Padilla is a U.S. citizen of Puerto Rican ancestry who was grabbed when he got off a plane in Chicago, and has been held incommunicado for over two years. At the time of his detention, Attorney General John Ashcroft held a press conference and accused Padilla of plotting to set off some kind of radioactive "dirty bomb."

Nope, the quote about the New York court didn't come from an attorney for the Bush administration. It came from David Cole, the legal affairs correspondent for the Nation magazine, writing in the May 10, 2004 issue. (Yeah, it isn't May 10 yet, but magazines have their own inexplicable methods for determining dates.)

Cole's example about the hypothetical terrorist with a nuclear bomb is just plain silly. Not even the National Rifle Association claims that the second amendment covers nuclear bombs. Undoubtedly any putative terrorist caught with a nuke could easily be locked up for a long, long time under any number of criminal statutes, and it is extremely doubtful that he would be able to find a judge who would grant him bail. More on Cole later.


On April 28, the Supreme Court heard the cases of two U.S. citizens -- Padilla and Yaser Esam Hamdi -- who are being held as "enemy combatants" in a Navy brig in South Carolina. This followed the Court's April 20 hearing on the hundreds of "enemy combatants" being held in Guantanamo Bay.

Just as in the earlier hearing on the Guantanamo prisoners, the Court seemed divided on the issues surrounding Padilla and Hamdi. Notably, none of the Felonious Five -- the Court majority that illegally put Bush in the White House in 2000 -- came down very clearly on the side of Padilla or Hamdi. Justice Anthony Kennedy, one of the Felonious Five, said somewhat imperiously at one point, "What do you want to happen at this hearing? You get your hearing. Are we supposed to send a Gulfstream over with 10 people who witnessed the capture [of Hamdi in Afghanistan]?"

The Supreme Court has a weighty set of decisions to make, and make them they will. But the real powers-that-be have their own way of making and enforcing decisions. A lot of these decisions get made at informal gatherings, like the infamous January hunting trip Justice Antonin Scalia went on with Vice President Dick Cheney.

Sometimes, however, the ruling-class decision-making process is hidden in plain sight, as the old saying goes. Case in point -- the leaders of the empire have their own set of magazines, in which they very openly frame and debate the issues before them. Two of these rags are Foreign Affairs and The National Interest, both considerably to the right of the Nation. Both have had some interesting articles about "enemy combatants" in recent months.


Foreign Affairs is the periodical of the Council on Foreign Relations (CFR). Reviled by John Birch right-winger types as a group of conspirators promoting one-world government, it is in fact an elite group promoting old-fashioned U.S. imperial domination. They brag that their 3,400 current members include "nearly all past and present Presidents, Secretaries of State, Defense and Treasury, other senior U.S. government officials, renowned scholars, and major leaders of business, media, human rights, and other non-governmental groups." Not a group to be taken lightly. Their Honorary Chairman is none other than David Rockefeller. Skull and Bones is nothing compared to these guys.

The May/June issue of Foreign Affairs contains a piece by a Professor Ruth Wedgwood, who holds down a seat at the John Hopkins University School of Advanced International Studies. Wedgwood's thesis is that "war is in fact raging, and criminal law is too weak a weapon. That was the lesson the United States learned too late, on September 11, 2001, after a decade of arresting and trying terrorist suspects." Since ordinary criminal law is insufficient in wartime, what we need is a good dose of "preventive internment of enemy combatants during the conflict" without the "full-dress procedure of criminal trials."

Wedgwood argues that "the difficulties of relying on criminal law, especially on its cumbersome standards of proof, may not be self-evident to non-lawyers." All us obstreperous "non-lawyers" are just too hung up on that innocent-until-proven-guilty rhetoric. This is the same kind of disdain for procedural niceties that provoked Justice Kennedy to ask if they were supposed to commandeer a plane to fly over witnesses from Afghanistan.

Recognizing that there might be some objection from the peanut gallery to the revocation of the Bill of Rights, Wedgwood grants that the government should make "individualized assessments of captured combatants and gauge at regular intervals whether they have given up the fight and can be safely released." Defense Secretary Donald Rumsfeld, who recently declared that Guantanamo prisoners would get an "annual review" of their status, seems to be reading from the same playbook as Wedgwood.


An article in the spring issue of The National Interest develops this line in greater detail. The National Interest is a bit more ideological than Foreign Affairs. Henry Kissinger, a war criminal who needs no introduction, is the Co-Chairman of its Editorial Board. The board itself includes Zbigniew Brzezinski (Jimmy Carter's Kissinger), as well as neo-con luminaries like Richard Perle and Daniel Pipes.

Jonathan Kay, an editor of Canada's National Post, penned an article for the spring issue of The National Interest, called "Redefining the Terrorist." Kay starts from the proposition that "morally and as a matter of expediency, the indefinite detention of terror suspects and their assassination in certain circumstances is eminently defensible." In just one sentence, Kay manages to conflate morality and expediency, and detention and assassination. The targets of this moral expediency are not even "terrorists," but "terror suspects."

Kay goes on: "Thousands of lives are at stake, and the United States government is rightly more concerned with protecting them than with pleasing human rights activists... Islamism and those who embrace it must remain outside the social contract. To do otherwise is to participate in our own destruction. As important as these existential legal problems may be, they were pushed to the background in the immediate wake of 9/11."

Having cast aside any need to mollify those pesky, existential "human rights activists," much less anyone who embraces "Islamism," Kay then posits that the "central problem with fighting terrorism through the courts is the dilatory, procedurally circumscribed nature of criminal law, the high standard of proof it entails, and the extensive rights afforded the accused." To back up his thesis, he cites a previous article from The National Interest written by Wedgwood, our friend from the current Foreign Affairs issue. You can almost feel the backs being scratched.

But Kay has a solution for this problem, and it is not what you might think. First, he states that "the use of the 'enemy combatant' designation is a legal stop-gap, a vague classification that sells short America's reputation as a freedom-loving nation." We won't try to figure out how Kay, and his Kissinger/Brzezinski/Perle/Pipes mentors define "freedom-loving nation." Perception can be everything in politics, and certainly these guys want the world to perceive that the US is a freedom-lover. So, if the concept of "enemy combatants" is troublesome, what to do?

In the spirit of Wedgwood's "individualized assessments of captured combatants" and Rumsfeld's "annual reviews," Kay lays out a proposal for a "new legal standard for treating terrorism," which would be administered by "a new, specially constituted tribunal staffed by jurists with the expertise and security clearance to handle terrorism cases." This tribunal would "not judge the guilt or innocence of those brought before it," because "the concept of guilt and innocence does not properly apply to a suspected terrorist (who may have done nothing criminal, but who nonetheless can be shown to possess a generalized intent to perform acts of terror)."

This tribunal, relieved from the difficult task of separating the innocent from the guilty, would instead have the "sole function... to pass judgment on a suspect's proper classification -- criminal, soldier or terrorist." If judged a criminal, the suspect would be moved into the criminal injustice system (oops, criminal justice, sorry). If judged a lawful combatant, the suspect would be afforded the normal rights associated with the Geneva Conventions. Ah, but if judged a terrorist, the "government should be given wide discretion to interrogate and detain as it sees fit."

Kay doesn't leave it to our imagination to wonder what that "wide discretion" entails. It includes the "explicitly granted right to detain jihadists who have embraced terrorism -- even if they have not yet taken part in any attack or specific conspiracy," and the use of "aggressive interrogation methods." And all without bothering with the difficult question of guilt or innocence.

But, don't worry, Kay's tribunal would grant suspects "basic procedural rights... an explanation as to why he is being held," and "make details about individual cases known to family members if warranted." The tribunal would even "investigate exculpatory evidence."

These are not the ravings of a right-wing fanatic. Well, maybe they are, but they are the ravings of the kind of fanaticism that has gripped a significant section of the ruling class of modern-day imperialism -- the ones who are in power today. And Kay actually claims to be trying to cool their jets, to provide a legal framework as an alternative to the "enemy combatant" designation that is giving imperialism's foremost freedom-loving nation a bit of a problem. Kafka, meet Orwell.


When the Guantanamo, Padilla and Hamdi cases got sent to the Supreme Court, many human rights activists claimed that an important victory had been achieved, because the Bush administration's claim to unfettered power was going to be challenged in the highest court in the land. Not so, said Pepperdine University law professor Douglas W. Kimiec, who said that this was "a positive development" for the administration, according to the Los Angeles Times. Kimiec predicted that the Court will not "interfere with necessary military decision-making," but will "write a narrowly drawn opinion that affirms it in the new and perplexing circumstances on the war on terror."

Will the Supreme Court (or perhaps just a majority making up the Felonious Five), give Bush and company a free pass on "enemy combatants?" Maybe, maybe not.

But what we should perhaps fear even more is precisely the kind of affirmation "in the new and perplexing circumstances" that Kimiec is talking about, rejecting the appearance of unfettered power, but linking that power to some kind of Kay-like "tribunal," a Wedgwood-like "individualized assessment," or a Rumsfeld-like "annual review." In other words, Bush loses, but the imperial office of the Presidency is still granted the power to detain, torture and murder, as long as terrorism suspects get some kind of limited, face-saving access to some kind of "due process."

If that is the result, will our vaunted human rights activists declare victory or defeat?

Back to David Cole. Cole has done yeoman's work exposing the human rights abuses of the U.S. imperial state, especially its racist and national chauvinist manifestations. But, like any good liberal, he gets tripped up trying to maintain his credibility to the inside-the-beltway crowd. So, the New York appeals court "went too far." You can't really give people who might be hauling nuclear bombs around with them the same rights as regular human beings.

Of course, Cole qualifies himself. "Here's the rub," he says, "Who's to say that Hamdi and Padilla are enemy combatants at all? Thus far, we have only the President's word... A workable solution must acknowledge that the authorization to use military force against Al Qaeda and the Taliban implies the authority to detain their combatants for the duration of the conflict. But unless the President is to be afforded wholly unfettered power, the courts must assure that all detainees -- citizens and foreign nationals alike -- are given a fair hearing to determine their status."

Cole's "workable solution" sounds eerily like Kay, like Wedgwood, like Rumsfeld. Detainees deserve some kind of "fair hearing," some kind of "due process." But, if it is determined that they are combatants for Al Qaeda or the Taliban -- or presumably for other "terrorist" organizations like the Iraqi insurgents, or Hamas or the Palestine Liberation Organization -- go ahead, lock them up, "for the duration of the conflict," however long that might be. Undoubtedly, Cole doesn't see himself as keeping company with the Bushies, and his "due process" and Kay/Wedgwood/Rumsfeld's "due process" are probably much different. But Cole's attempt to give the devil his due leads all-too-easily to an uncomfortably common ground. If we evaluate what the Supreme Court is about to do through Cole's lens, it might truly be difficult to distinguish a victory from a defeat.

This is the terrain on which liberalism, the reactionaries in the Bush Administration, and the centrists in the Democratic Party all meet. None of them can get to the heart of the matter -- that the "war on terrorism" is not about fighting Al Qaeda, or the Taliban, or Saddam, or Hamas. It is about preserving the right of imperialism to be the hangman of any person, force, organization or nation that tries to escape from its grip. To that end, human rights and due process are just words, just slogans, just like the rhetoric about our great, "freedom-loving nation." Guilt? Innocence? Forget it. Whether you've got a nuclear bomb in your pocket, or just a bad attitude in your head, you are the enemy.

The Supreme Court is expected to rule on the Guantanamo, Padilla and Hamdi cases this summer, well before the election in November.

Some of Marc Norton's best friends are lawyers and human rights activists.

Also on Beyond Chron:
The Enemy Combatant Blues: Part One
April 23, 2004