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Enemy Combatants
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The Felonious Five Ride Again
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Enemy Combatant Blues: Part 1
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CounterPunch (print edition)
January 1, 2004

Copyright © 2004 Marc Norton
(I have made some minor revisions from the published version,
bringing it more in line with my original draft.)

In December, 2001, with the Pentagon and the World Trade Center still smoldering, Vincent Bugliosi, in an interview with the Nation, delivered an epitaph to a movement that he had helped to create, to impeach the "Felonious Five" of the Supreme Court, who had thrown thousands of uncounted Florida ballots into the trash, and illegally handed the 2000 election to a character named George W. Bush.

"Obviously," Bugliosi said, "September 11 dealt a solar plexus blow to this whole movement... But I think that in the dispassionate light of the future, history is going to be harsh on us. We already know the moral bankruptcy and the destitution of character of these five Justices. They have proven that. But if we Americans meekly allow what the Court did to stand, without demonstrating our absolute outrage... history is going to be harsh not just on the Supreme Court but on the American people for allowing this to happen without marching in the streets. History will say we should have been in the streets."

Two years later, this very same Supreme Court is once again poised to do Bush's bidding, to confirm Bush's authority to disappear anyone whom he chooses to declare an "enemy combatant," to violate the fundamental tenets of what passes for democracy in this land of the free, and to tear up the Constitution just as they tore up the uncounted ballots in Florida.


In January, 2001, the corporate media blocked out any real coverage of the largest counter-inaugural demonstrations in Washington DC since Vietnam War days. "Hail to the Thief" was the slogan of the day, even while Al Gore and his minions were obsequiously making their peace with the new regime. One almost expected Bush to deliver Richard Nixon's famous line, "I am not a crook," in his inaugural address.

In February, 2001, the Nation published Vincent Bugliosi's broadside, "None Dare Call It Treason," thrashing William Rehnquist, Sandra Day O'Connor, Antonin Scalia, Arthur Kennedy and Clarence Thomas for organizing the judicial coup that brought us the Bush regime. Bugliosi methodically dissected their absurd and indefensible ruling, which attempted to use the equal protection clause of the 14th Amendment to deny thousands of Florida voters the right to have their votes counted. The equal protection argument was so ridiculous that the Court had rejected this very same line of reasoning just three weeks before in an earlier Bush appeal.

Bugliosi is the former Los Angeles prosecutor who put away Charles Manson and then wrote a best-selling book about the case, Helter Skelter. Applying his legal and journalistic skills to the Florida fiasco, Bugliosi ignited a fire storm, drawing the largest outpouring of letters and emails in the Nation's long history. According to copy editor Judith Long, the magazine received "so much mail on the Bugliosi piece that I fear my computer is going to melt!! People are enraged and want to know what to do."

A grassroots movement began to form to call for the impeachment of the Felonious Five, powered by organizations such as Voter March. In May, the Nation published an expanded, book-length version of Bugliosi's piece, The Betrayal of America.

In June, an 82-year-old former Oregonian Congressman, Charles Porter, succeeded in getting the Oregon Democratic Party to publicly call for an "immediate investigation of the behavior of the US Supreme Court... for decisions in December that led to Americans being denied their right to choose a President of the United States." When the party posted this resolution on their website, it was "like the movie Network: 'I'm mad as hell, and I'm not going to take it anymore,'" according to Oregon state Democratic chairman Jim Edmunson. The party received hundreds of letters in response, with comments like "Thank God some Democrats found some cojones," and "I refuse to get over it."

By summer the pot was boiling, everywhere except inside the beltway. "The only people who haven't responded are the people who could do something about it." Edmunson said.

The National Lawyers Guild, an eclectic collection of lawyers located politically somewhere to the left of the American Civil Liberties Union, invited Bugliosi to address their scheduled late-September national convention, and to participate in a debate about taking up a national campaign to impeach the Felonious Five.


On September 11, 2001, a few suicide bombers and three airplanes somehow transformed Bush into a national figure of Churchillian and Orwellian proportions. Before September 11, the emperor had no clothes but the crown put on his head by the Supreme Court. He was a bumbling, cartoon-character of a President, barely able to utter a complete sentence, propped up by assorted political scallywags and their courtesans in the corporate media. After September 11, he was suddenly transformed into a political Atlas, bearing the load of the world and the empire on his strong back. The teleprompters started working again, and the chattering class could finally hear his pronouncements and imprecations.

Much of the left ran for cover. In December, 1999, the festival in Seattle had introduced a whole new generation of activists to the radicalizing effect of billy clubs, tear gas and other so-called non-lethal weaponry. In the wake of September 11, a huge anti-globalization rally planned for Washington DC in the Fall nearly fizzled, as most of the so-called leaders of the new movement baled out. Those who held the course were reviled for supposedly not honoring the dead and wounded in New York and Washington.

But not everybody could run for cover. Thousands of immigrants found themselves the object of a series of federal roundups, grabbed off the streets and held incommunicado for unknown periods of time in unknown places. The official total of those detained in the initial roundup rose to well over a thousand, when the Justice Department and the media stopped counting, at least publicly. Next, five thousand male immigrants from Middle Eastern countries were targeted by investigators for "voluntary interviews," in just the first of several such campaigns. The FBI started rummaging through foreign students' college records. FBI Director Robert Mueller, the representative of the same political ideology that opposes affirmative action quotas, set "specific numerical goals" for "terrorism investigations" based on the number of mosques in given communities. Talk of the need for torture of "terrorism suspects" became common-place. And then there was Guantanamo, "Special Registration," and plans for military tribunals.

Meanwhile, the cowards in Congress passed an omnibus-bill of gargantuan proportions, dubbed the Patriot Act, full of constitution-busting provisions, vetted by Bush's alter-ego Attorney General John Ashcroft. Tom Ridge, another of Bush's buddies, and the man who had signed Mumia Abu-Jamal's death warrant, was chosen to run the new federal office of Homeland Security.

To top it all off, Bush and company have asserted the right to declare any individual, citizen or non-citizen, an "enemy combatant," and strip them of all rights, including the right to speak to a lawyer or their family, or even to know what, if any, charges have been leveled against them. According to Bush's theory, "enemy combatants" can be held in limbo, essentially, forever.


It goes on and on, of course. Many books have been written, and many books will be written, about the transgressions of this age of empire. Now, two wars later, we have a whole lot more dead people, a whole lot more repression, the same unelected President, and the same Supreme Court.

In 2000, Supreme Court Justice John Paul Stevens, one of the dissenters from the Felonious Five, wrote "Although we may never know with complete certainty the identity of the winner of this year's presidential election, the identity of the loser is perfectly clear. It is the nation's confidence in [the Supreme Court] as an impartial guardian of the rule of law."

Steven's quote, all-but-forgotten, sounds quaint today. Confidence in the Supreme Court? Where have they been these last, long two years?

On January 12 of this bold new year, the Supreme Court unanimously let stand a legal challenge to the Bush administration's policy of keeping secret the names of hundreds and thousands of immigrants who were "detained" after September 11. This decision allows Bush and Ashcroft to continue withholding the names of immigrant "detainees," as well as other information related to their arrests, until hell freezes over.

"I am feeling kind of discouraged now," said Kate Martin, according to the Los Angeles Times. Martin is the director of the Center for National Security Studies, which brought the suit the Supreme Court spiked. "But," she continued, "Congress could remedy this by prohibiting secret deportation hearings." Any day now.

But the Supreme Court has much more on its plate. On January 9, just a weekend before issuing its non-decision on disappeared immigrants, the Court agreed to consider the case of Yaser Esam Hamdi, a US citizen who was grabbed in Afghanistan, declared an "enemy combatant," sent to Guantanamo, and then held incommunicado ever since in a Navy brig stateside. Oral arguments in Hamdi's case are expected to be heard in April, assuming that the Court is actually listening, with a ruling expected by July. The Hamdi case was filed by his father and a lawyer, Frank Dunham, who has never been allowed to meet with his client.

In case the point isn't clear, another citizen "enemy combatant" is Jose Padilla, a Bronx, New York-born Muslim of Puerto Rican descent, who was arrested in connection with an alleged plot to detonate a radioactive "dirty bomb" somewhere in the US. Padilla was grabbed in Chicago, not Afghanistan or Iraq, although he apparently did have the temerity to visit Pakistan. The evidence against him? Who knows. When Padilla was detained, Ashcroft held a press conference, and that was that for Padilla.

It is expected that the Supreme Court will be asked to make a ruling on the Padilla case. The often-liberal US Court of Appeals in New York has issued a ruling favorable to Padilla. Bush Administration lawyers are fast-tracking an appeal to the Supremes, hoping that the Court will overrule the New York decision, and affirm Bush's position on "enemy combatants," just as the Court overruled the Florida Supreme Court decision on those inconvenient ballots in Bush v. Gore.


According to some civil libertarian types, the Supreme Court decision to hear the Hamdi case is a setback for the Bush administration.

Not so, says Pepperdine University law professor Douglas W. Kmiec, who calls the Hamdi decision "a positive development" for the administration, according to the LA Times. He predicts 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."

But Deborah Pearlstein, of the Lawyers Committee on Human Rights, also quoted by the LA Times, says that the Court's move "sends a clear message that the president's power to detain U.S. citizens is subject to certain limits." Of course, the question is, what limits? Perhaps everything will turn out well, as long as no "enemy combatant" asks to have their vote counted in Florida.

Similarly, Steven R. Shapiro, the national legal director of the ACLU, thinks that Bush administration lawyers "will have a hard time selling [their view on enemy combatants] to the Supreme Court." Let's just hope Bush's lawyers don't use a 14th Amendment equal protection argument.

David Cole, a lawyer and prolific commentator, holds a more nuanced view. Writing in the Nation last December about the November decision of the Supreme Court to hear two cases challenging the detention of hundreds of foreign nationals at Guantanamo, he warns, "Be careful what you wish for."

As Cole points out, the lower courts had unanimously ruled for the Bush administration in the Guantanamo cases. The Supreme Court rarely reviews cases in such circumstances, so civil libertarians were encouraged. "But getting the Court to grant review and winning the cases are two very different matters," Cole continues. Cole then draws a parallel with Korematsu v. United States, where the Supreme Court upheld the internment of Japanese-American citizens and non-citizens during World War II. "The Guantanamo cases may go down in history as Korematsu II."


Bugliosi's views on "enemy combatants" are not known. As a former prosecutor, he might even be inclined to support he Bush administration view of the war on terror.

But it is a safe bet that Bugliosi would hasten to point out that the Supreme Court has been given a free pass to condone lawlessness in high places ever since Bush v. Gore. "History will say we should have been in the streets," he prophesied. If there had been a serious challenge to the judicial coup, Justice Steven's soliloquy on lost confidence in the Supreme Court might have still rung true, and there might have been a more-profound political challenge to the right of the Supreme Court and the Bush administration to assume the imperial authority to declare anyone and everyone an "enemy combatant."

"The bottom line is that nothing is more important in a democracy than the right to vote. Without it there cannot be a democracy," wrote Bugliosi. "And implicit in the right to vote, obviously, is that the vote be counted. Yet with the election hanging in the balance, the highest court in the land ordered that the valid votes of thousands of Americans not be counted."

Yet, when push came to shove, Gore, the Democrats, Congress and most of the left abandoned the battle and let the Supreme Court have the last word. Constitutional rights mean nothing if they are not enforced. Remember when thee were three branches of government? After September 11, the Voter March crowd and guys like Charles Porter found themselves alone. The National Lawyers Guild even disinvited Bugliosi from its convention.

To be sure, when the opposition to the Iraq war later erupted into public consciousness, every mention of the "unelected" President drew rousing cheers from crowds of thousands of people. But by then, it was just a throw-away line, not a political platform, no more serious than references to Ashcroft's propensity to cover up naked statues.

Even as the Supreme Court moves, in all its pomposity, to "limit" the Bush regime's ability to conduct endless war, the Bush regime is moving ahead at light speed to keep us all in line.

Immigrants and foreign tourists are now being routinely fingerprinted and photographed when they enter the US. The feds have drawn up a plan to classify all airline passengers into color-coded groups by feeding personal information into huge computer databases, so we can be classified green to go, yellow to be searched and questioned, or red to be barred from flight. Does anyone really think that the Homeland snoops will only use this information to figure out what airplanes we can get on?

The Homeland cops have also established quarantine zones around Bush, wherever he goes, where no anti-Bush signs are allowed, on paid of arrest. US Attorney Strom Thurmond Jr., the former Senator's legitimate (and white) offspring, is prosecuting Brett Bursey of South Carolina for holding up a "No War for Oil" sign during a Bush visit, even though he was standing next to a bunch of people holding up pro-Bush signs. Bursey is charged under a rarely enforced federal law regarding "entering a restricted area around the president of the United States."

An should we mention that the US is holding thousands of Iraqis in detention centers in Iraq, sort of a Guantanamo in-place, only many times as big? Or that Bush has established other secret locations around the world for holding other "enemy combatants" picked up from God-only-knows where? Or that, according to Robert Dreyfuss writing in The American Prospect, $3 billion of the $87 billion Iraq appropriation is going to fund a covert CIA paramilitary unit in Iraq, which will likely lead to a wave of extrajudicial killings, just like the Phoenix program in Vietnam?

Just can't wait until all this gets to the Supreme Court.