‘The practice of arbitrary imprisonments is, in all ages, the favourite and most formidable instrument of tyranny.’
Alexander Hamilton, 1788
In June 2004 the United States Supreme Court handed down three landmark decisions. In each case prisoners being held indefinitely by the US government as ‘enemy combatants’ were challenging the legality of their imprisonment before the nation’s highest court. The rulings, which placed only the most superficial limitations on the US government’s practice of arbitrary imprisonment, were heralded in the bourgeois US press as a ‘reaffirmation of the rule of law’ (New York Times) and ‘a stinging rebuke’ of the Bush administration (Washington Post). In fact, the decisions represent a toothless concession to the Bush administration’s lawless practice of indefinite detention and undermine due process to an extent unseen since the Supreme Court permitted the mass internment of Japanese Americans during World War II.
Of the three cases brought before the Supreme Court, two dealt with US citizens, Yaser Esam Hamdi, captured in Afghanistan in 2001, and José Padilla, captured at an airport in Chicago in 2002 and held indefinitely since then for allegedly contemplating terrorist acts. The third case was brought by 14 detainees at Guantanamo Bay, who, like the others, have been held in solitary confinement, without charge or legal representation.
To understand the significance of the Supreme Court’s decisions, it is worth returning to the Constitution, the upholding and interpreting of which is the sole duty and mandate of the US Supreme Court. Article V of the Constitution’s Bill of Rights states that no person ‘shall be deprived of life, liberty, or property, without due process of law’; Article VI states that ‘all accused shall enjoy the right to a speedy and public trial, …to be informed of the nature and cause of the accusation, …to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence’.
It is hard to imagine a violation of these principles more thorough and indisputable than the actions of the US government in the last two years – holding thousands of people indefinitely in solitary confinement, often under conditions of torture, without charging them with a crime, without providing any possibility of a public trial and without permitting legal counsel. The Supreme Court’s decisions should have been open and shut: the US government must either provide full due process of law to those being detained, or it must release them. Of the nine members of the Supreme Court, only one Justice came to that conclusion.
The plurality of the Court, in the Hamdi and Guantanamo Bay cases, made brave noises about the importance of due process and the rule of law as basic tenets of freedom, then proceeded to undermine them. (The third case, José Padilla’s, was dismissed on a technicality.) Despite the rhetoric, the ultimate ruling of the Court was that the indefinite detentions were legal and could continue, as long as the appropriateness of the prisoners’ status as ‘enemy combatants’ can be determined by some undefined ‘neutral decisionmaker’.
The Court’s invention of a ‘neutral decisionmaker’, for which there is no legal precedent, as a substitute for ‘a speedy and public trial’ is troubling in several respects. First, the Supreme Court is accepting the category ‘enemy combatant’, which is an innovation the Bush administration created for the sole purpose of avoiding due process of law. Second, as one dissenting Justice, Antonin Scalia, pointed out, the Court’s decision is tantamount to making ‘illegal detention legal by supplying a process that the government could have provided, but chose not to’. And third, the vagueness around what constitutes a ‘neutral decisionmaker’ can only have one outcome. Already, the US government has announced its intention to assemble kangaroo-court military tribunals to serve as the ‘neutral decisionmakers’.
The only thing less coherent and less justifiable than the Court’s decisions themselves has been the reaction of the liberal press. Across the board, the decisions were hailed by ‘progressives’ as a victory for freedom and due process and a ‘defeat’ for Bush. Never mind that, beyond the rhetoric, not a single thing changed in the status of the prisoners, who remain in solitary detention, still without any meaningful hopes for a fair and public trial. The important thing for liberals, operating within the myopic framework of capitalist electoral politics, is the election in November; and for that purpose rhetoric – even rhetoric devoid of substance – will do just as well as the real thing.
So in the most developed bourgeois nation, that most proud bastion of what once was progressive about bourgeois ideology – individual liberty – has suffered a crushing defeat. And liberals refused to notice, because they thought that the sugar-coating on that defeat might help them win an election.
Dalton Hilliard
US correspondent
FRFI 180 August / September 2004
