The "rule of law" will never be anything more than what the human beings alive at the time in a given society make of it. It depends entirely on the character of those who fashion, interpret and uphold the law — and on the public's attitude toward it.The government of the United States has officially informed the courts of Her Majesty the Queen that Her Majesty's subjects may be kidnapped (and that was the precise term used by the government of the United States) by agents of the United States at any time — and there is not a bloody thing that Her Majesty can do about it.
And you thought "extraordinary rendition" was just for "terrorists"? No, the Bush Regime has decreed that this bounty extends to every human being on the face of the earth. (And yes, Virginia, it also applies to U.S. citizens kidnapped on U.S. soil — just ask Jose Padilla. No wait, you can't ask him; his mind has been destroyed by the years of torture and isolation that was inflicted on him before the Regime finally tried him on minor charges.)
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This week, The Times reported on a remarkable appearance before the UK's Court of Appeal by Alun Jones, QC, representing the American government. Jones told the slack-jawed jurists:
...that it was acceptable under American law to kidnap people if they were wanted for offences in America. "The United States does have a view about procuring people to its own shores which is not shared," he said.Of course, there is nowt surprising in any of this. As I have been reporting in various venues since November 2001, George W. Bush has long claimed the arbitrary right not only to kidnap and imprison anyone on earth he pleases, but also to have them killed, without charge or trial or any legal procedure. What's more, he has even delegated this literal license to kill to selected U.S. agents in the field, who have been given the green light to assassinate victims on their own initiative, without an OK from Washington.
He said that if a person was kidnapped by the US authorities in another country and was brought back to face charges in America, no US court could rule that the abduction was illegal and free him: "If you kidnap a person outside the United States and you bring him there, the court has no jurisdiction to refuse — it goes back to bounty hunting days in the 1860s."
As we've noted before, this remains one of the great unspoken scandals of the entire bloodsoaked reign of the Crawford Caligula. Brief glimpses of this imperial murder program were offered by Regime insiders in the first heady weeks after 9/11 (the "new Pearl Harbor" which that proto-Bush Administration, Project for the New American Century, openly pined for in election year 2000); the Bushists were eager to show that "the gloves are off," with CIA agents exulting, "We're killing people!" and Cheney himself muttering on national television about working "the dark side, if you will." So for a time you could find stories in the mainstream press where Regime officials boasted of "renditioning" captives to foreign toture chambers, and revealed secret executive orders asserting the president's arbitrary power over the liberty and life of the global population.
Then these stories dried up — probably about the time that Bush's own torture program took off in earnest, and the Administration began hiding what they fully realized were capital crimes under U.S. law. Now no one in the great, good, bipartisan media-political establishment ever mentions these Caesarian powers — except, oddly enough, Bush himself, who once boasted openly of the extrajudicial killings he had ordered: on national television, before Congress, in the State of the Union address just weeks before he ordered the act of aggression against Iraq. (For more on this, see "Fatal Vision: The Deeper Evil Behind the Detainee Bill.")
Given all this, a claim that a bunch of Limeys are fair game for kidnapping is actually pretty small beer for this crew.
The Times story has been making the rounds on the larboard side of the political blogosphere. For example, lawyer and blogger Scott Horton says Bush's kidnapping claims in the UK court are a ludicrous perversion of U.S. law:
This is not U.S. law, it is a Bush Administration hallucination as to U.S. law. The sort of nightmare that comes flowing freely from the pen of John Yoo or David Addington. The sort of nightmare which refuses to recognize the sovereignty of foreign states or the solemn commitments of U.S. governments over the last two centuries in treaties and conventions. The sort of nightmare that refuses to recognize the "law of nations" referred to by the Founding Fathers and incorporated into the Constitution.I hate to disagree with Horton, who is often astute in his analyses (and has done heroic work in exposing the political imprisonment of former Alabama governor Don Siegelman), but in this case, I think he's wrong. It looks like the Bushists are in fact correct in their claim: this extraordinary procedure has been upheld by the U.S. Supreme Court; it is "U.S. law." As the Times notes:
Alas, it is the attitude of a criminal who imagines himself busy enforcing the law, even as he holds himself above the law. It is the attitude which has brought our nation low in the world and threatens more damage still.
[Jones] cited the case of Humberto Alvarez Machain, a suspect who was abducted by the US government at his medical office in Guadalajara, Mexico, in 1990. He was flown by Drug Enforcement Administration agents to Texas for criminal prosecution. Although there was an extradition treaty in place between America and Mexico at the time — as there currently is between the United States and Britain — the Supreme Court ruled in 1992 that the Mexican had no legal remedy because of his abduction.And if you go back to that 1992 ruling — written by Chief Justice William Rehnquist, the old vote-suppressing partisan hack foisted on the Court as a bitter joke by Richard Nixon — you will indeed find the supreme arbiters of law in the United States overturning a series of lower court rulings and affirming the right of government agents — or even bounty hunters hired by the government — to kidnap people from foreign countries and bring them to trial in the United States. Rehnquist cites an 1882 case, Kerr v. Illinois, as the chief precedent, and notes that it was upheld again in 1952:
This Court has never departed from the rule announced in [Kerr] that the power of a court to try a person for crime is not impaired by the fact that he had been brought within the court's jurisdiction by reason of a 'forcible abduction.' No persuasive reasons are now presented to justify overruling this line of cases. They rest on the sound basis that due process of law is satisfied when one present in court is convicted of crime after having been fairly apprized of the charges against him and after a fair trial in accordance with constitutional procedural safeguards. There is nothing in the Constitution that requires a court to permit a guilty person rightfully convicted to escape justice because he was brought to trial against his will.Even Rehnquist recognized that Machain "may be correct that [his] abduction was 'shocking'…and that it may be in violation of general international law principles." But as anyone who has opened their eyes for more than ten seconds during the past century will have observed, "general international law principles" mean absolutely nothing when a powerful state wishes to have its way.
Rehnquist — and now Bush — relies on the ludicrous fig-leaf argument that because such abductions are not specifically prohibited by extradition treaties, then they are "legal." This is of course using the letter of the law to strangle its spirit -- and its plain, common-sense meaning: any extradition treaty that allows one party to pluck the other's citizens from their own soil and haul them back to a foreign land for trial is a bitter sham. But again, this is the way of the world: might makes right, and "law" is bent to accommodate the interests of the powerful.
It would be nice to believe, with Horton, that this current claim of the Bush Regime is some kind of nightmarish perversion of U.S. law, some terrible falling away from a former golden age, when the United States never failed to "recognize the sovereignty of foreign states [and] the solemn commitments of U.S. governments over the last two centuries in treaties and conventions." [You might want to ask, say, the Iraqis — or the Cherokee — about this sometime.] It would be nice to believe that "the rule of law" would somehow save us, if it could only be "restored." But the fact is, the Bush Regime could go back and find a precedent in "law" for almost all of their atrocities; and indeed, almost every depredation in American history — slavery and Jim Crow, military incursions, covert actions, the dispossession and ethnic cleansing of Native Americans, etc. — have been regarded as "legal." (Dred Scott, anyone? Or how about Bush v. Gore?)
Yes, we should continue to pursue the vision of law as an impartial arbiter, a vessel of justice, equality and comity, and a brake upon the unrestrained exercise of raw power. It is a worthy goal, calling us to rise above the baser elements of our nature — the mud and blood and greed and fear and ape-like lust for dominance. But we should not ignore what law can be — and so often is — in our degraded reality: a blunt instrument of hegemony; a fig leaf for crime and "shocking" violations of legal and moral principles; and, in the immortal words of Dickens' Mr. Bumble, "an ass."
The "rule of law" will never be anything more than what the human beings alive at the time in a given society make of it. It depends entirely on the character of those who fashion, interpret and uphold the law — and on the public's attitude toward it. Are they acquiescent and servile in the face of rank abuses of the law on behalf of the powerful? Or do they stand up strongly for their rights, for their dignity as citizens, and for equal justice under the law?
I think the historical record of our times clearly shows how the vast majority of the people of the United States have answered — and are answering — these vital questions.
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