Knew he was dangerous...

Gonzales's does today what some of us thought he would be good at doing


Legal theorist shows the way for the republic to become an empire

When I wrote about The ``Enabling Act'' for the Bush dictatorship back in December, I commented that ``Congress and the American people are getting what we asked for in the days following September 11, 2001''. Boy, is this ever coming home to roost.

US Attorney General Alberto Gonzalez explained with a rhetorical question the inherent authorization for the NSA wiretapping program embodied by the Congressional Authorization for the Use of Military Force (AUMF) resolution of September 14, 2001 and later by the decision of the US Supreme Court in Hamdi v. Rumsfeld (decided June 28, 2004):

Gonzalez: If the detention of an American citizen who fought with Al-Qaida is authorized by the force resolution as an incident of waging war, how can it be that merely listening to Al-Qaida phone calls into and out of the country in order to disrupt their plots is not?

Indeed, the Supreme Court ruled in the Hamdi case that the AUMF did authorize detention when the president declares a citizen an enemy combatant. Justice Sandra Day O'Connor wrote for the Court in June 2004,

The threshold question before us is whether the Executive has the authority to detain citizens who qualify as ``enemy combatants.'' There is some debate as to the proper scope of this term, and the Government has never provided any court with the full criteria that it uses in classifying individuals as such. It has made clear, however, that, for purposes of this case, the ``enemy combatant'' that it is seeking to detain is an individual who, it alleges, was "`part of or supporting forces hostile to the United States or coalition partners'" in Afghanistan and who "`engaged in an armed conflict against the United States'" there. Brief for Respondents 3. We therefore answer only the narrow question before us: whether the detention of citizens falling within that definition is authorized.

The Government maintains that no explicit congressional authorization is required, because the Executive possesses plenary authority to detain pursuant to Article II of the Constitution. We do not reach the question whether Article II provides such authority, however, because we agree with the Government’s alternative position, that Congress has in fact authorized Hamdi’s detention, through the AUMF. [emphasis added]

Wow. According to Gonzales, the ``battlefield'' where ``enemy combatants'' fight and the Supreme Court has authorized ``detention'' now extends to the phone conversations of citizens on domestic soil. This is an expanding authority, not an encompassing authority as Gonzales would have us believe.

Even though the decision does not, contrary to what some rightwing commentators say, settle questions about the president's powers residing in Article II, this type of authority conferred by the Court in Hamdi clearly is now the more important aspect of the decision, rather than those rights Hamdi acquired--the right to a lawyer and a ``meaningful'' right to ``challenge'' to his detention. (The government has indeed attempted to render that latter aspect moot by transferring Hamdi to the criminal justice system.)

Very few in the civil liberties community recognized the weight of these rights awarded to the president. Elaine Cassel, writing in Counterpunch on June 29, 2004 was a notable exception:

On first glance, which is all the nightly news gave you, the Hamdi case looks like a win for lovers of freedom. Even Hamdi's public defender, Frank Dunham, said that they "won big." I disagree. And amazingly to this writer, so did Scalia, who was joined in his dissent by Justice Stevens. The majority opinion was written by Justice O'Connor, and we all know what that means-a tortured crafting of facts cobbled to law that tries to give everybody something. A little here, a little there. He is what we got: The Congress gave the President the authority to detain anyone involved with fighting with al Qaeda or the Taliban when it voted for war in Afghanistan. Hamdi was supposedly captured in Afghanistan. As long as the U.S. is fighting in Afghanistan (I guess that will be forever, don't you think?), Hamdi can be held WITHOUT BEING CHARGED WITH A CRIME. But, he gets a lawyer (a lawyer subject so special instructions by Ashcroft and Rumsfeld, an lawyer whose conversation with his client will be monitored and limited as Rumsfeld and Ashcroft see fit) and he can file a petition for writ of habeas corpus, challenging his detention. Ah, but the government gets the benefit of the doubt in such a hearing. It puts forth is conclusory affidavit, like the one cranky Judge Doumar in Richmond did not like one bit, and Hamdi gets to try-just try, if he can-to prove them wrong. Yes, the burden will be on Hamdi to prove the government's allegations against him to be wrong. Now that will be kind of difficult, won't it, since Hamdi has been incarcerated for going on three years, has no contact with anyone in the outside world, and will have a hell of a time coming up with the witnesses to refute the conclusion of the government that he was indeed fighting with the Taliban or al Qaeda against the U.S. Let's see, even if he knew people to subpoena to support an alibi-if he has one-federal marshals don't serve subpoenas in Afghanistan.

Scalia and Stevens joined in the call to either charge him with a crime-Scalia suggested treason-or have Congress suspend the writ of habeas corpus (Scalia contends that only Congress, not the President, can properly do this). But don't create some mechanism that allows the President to weasel out the result that the majority wanted-that is, to give Hamdi a lawyer, let him file his papers, but give him the burden of proving his "innocence." An insurmountable burden of proof.

These developments constitute the slow-motion redefinition of what it means to be an American citizen. Gonzales's arguments in favor of extensive warrantless wiretapping and who-knows-what future policies of spying and detention will be difficult to resist. The Republicans are all for it. If they use the Terror-War language of ``we do it to protect the American people'', the public seems to buy it. And the minority Democrats are practically useless. Some have made a few squeaks about the need for swearing in the slippery Attorney General and the undesirability of permanent war.

But no one--apart from a very brief mention by Senator Leahy about spying on Quakers--sees fit so far to put this in terms of the very real administration spying activity seemingly aimed at squashing of dissent within the empire. Oh, just now Senator Feinstein is making some good points about how ``no one knows'' on what basis the executive and NSA decides who is a target. (Indeed, Justice O'Connor wrote in the decision Gonzales cites as the president's authority that ``never provided any court with the full criteria that it uses in classifying individuals as [enemy combatants]''.)

Therein lies the crux of the matter. The president has taken 911, the September 14, 2001 AUMF resolution, and later the Hamdi decision to seize the right to declare anyone he sees fit to be a legitimate Terror-War target against whom anything goes--including warrantless wiretapping, secret evidence, warrantless extra-judicial detention, and indefinite imprisonment of non-citizens and citizens alike. He claims its all legal and the Republicans agree. Outvoted, meek, and ineffective at explaining or unwilling to explain the dangers in the face of seeming public approval, the Democrats are made to look like a bunch of terrorist-sympathizers despite protestations to the contrary. End of story?

We'll see. Will the outlandish legal theories promoted by Gonzales soon extend the ``battlefield'' to bloggers, like me, who see America slipping away and write about it in opposition to the president? Hell, I note from my referrer logs that visitors to websites in Arabic sometimes click on links to this site. Does that mean, as the president says, ``Al-Qaida is calling'' me and I'm a target for surveillance? Or worse? For the record, I declare my disgust for acts of terror whether committed by Al-Qaida, US client states, or the US itself.