DAY OF GLORY

Yesterday, June 12, 2008, seven months after it had been heard the appeal, the Supreme Court of the United States finally handed down its decision in the case of Boumediene et. al. v. Bush et. al. I have not yet had a chance to read the decision in full, but judging from the reactions of prominent opponents of the Constitution, it represents a tremendous step forward in the struggle to restore the rule of law in this country. And I will admit that it surprised me. I had not expected the justices to strike down any part of the Military Commissions Act of 2006, as the attorneys for the appellants had fallen into the insidious trap laid for them by Justice Scalia and argued for their clients on the basis of Guantanamo's status as U.S. territory. Any decision which concerns the Guantanamo inmates alone will accomplish little. After all, there are vast numbers of people in detention as "unlawful enemy combatants" now and their numbers may come to include ourselves. Furthermore, the inmates at Guantanamo may simply be moved to another location. That there are plans to do exactly that is suggested by the support manifested by prominent opponents of the U.S. Constitution, such as Henry Kissinger, Colin Powell, and John McCain, for closing down the base. Until the rights of all persons detained as terrorist suspects have been assured, closing down Guantanamo is not a thing to be desired. As the most visible manifestation of the injustice of our government's policy in the so-called "War on Terror", and the one most accessible to civilian attorneys and journalists, it is vital that it remain there to remind us of the outrage that is being perpetrated. To close it alone would only move the problem from the realm of the visible and accessible into the realm of the secret and inaccessible.

Let us not deceive ourselves. The struggle is not over. Faced with an Iraqi government which seems, despite all U.S. efforts, to truly be embracing democracy, a presidential candidate (Obama) who seems to truly want change, and this ruling, the administration, CIA and military-industrial complex are likely to get nasty. This may indeed be the trigger which will cause them to stage another "terrorist attack", call off the presidential elections, and declare martial law. In fact, it puts the American people in more danger than ever before in the history of this nation, not because it is wrong but because it is right and the people who hold the supreme power in this country are evil men who have no respect for the rule of law. They cannot afford to have terrorist suspects released because their testimony will most likely incriminate them as accomplices in 9/11 and masterminds of a system of torture designed not to elicit intelligence but rather to produce "phony terrorists" who will take the rap for their own crimes. They could end up not only impeached, but in prison themselves. And so they will fight tooth and claw to thwart implementation of the decision, and a significant number of Americans will no doubt, as always, believe their lies. Yet despite the danger, I welcome the decision.

We must remember that the justices who handed down this decision-- Anthony Kennedy, David Souter, Ruth Bader Ginsburg, Stephen Breyer and John Paul Stevens-- are conservatives, strict constructionists. A liberal majority would have gone much further and struck down the entire Military Commissions Act. But given the dangerous strides which out-and-out fascism has made in this country, conservatives look good by comparison. We must be grateful to the tradition which has made a strong Supreme Court a vital component of our free government. It began when Montesquieu, himself a French jurist, offered his conception of the British constitution in his Spirit of the Laws, the most widely-read political treatise of the eighteenth century. It was he who clearly defined the three branches of government-- executive, legislative and judicial-- and asserted that they must be separate and equal, although in fact the England of his time had a unitary government in which all power was vested in the legislative branch, Parliament. And fortunately our Founding Fathers followed him. They did not originally intend that the Supreme Court should have such power, being naively unaware of how great the threat to liberty would prove to be. That it today has the power to declare laws or parts of laws unconstitutional is due to Chief Justice John Marshall, who claimed that power in the historic Marbury v. Madison decision. And today, we can be very grateful to him.

Given the fact that the people who hold supreme power in the country today are not conservatives of either the old or new variety but fascists who have no respect for the Constitution or the rule of law, and that all too many Americans have sunk to a level of servility unimaginable to the Founders, the most likely outcome of this decision will be civil war. But however terrible that may be, it is infinitely preferable to an unopposed totalitarianism. This will probably be the last decision rendered by an independent Supreme Court: already four of the justices are mere placemen and Justice John Paul Stevens is elderly-- when he is replaced the court will no longer constitute a power which can defend liberty. But the victory in Boumediene v. Bush can serve as a banner in the battles to come. With some intentional mockery of the man who set in motion the totalitarian grab for power of which 9/11 is the hallmark, we might call it our "line drawn in the sand". Those who oppose it are not conservatives-- they are fascists who have no place in the government of a free republic (of course, like the Nazis and members of the Ku Klux Klan, they will always have the right to spew forth their filth, which however no self-respecting citizen should take seriously). Those who follow them are enemies of the Constitution, who deserve the fate of the defenders of slavery in the First Civil War. Let us now proclaim by our actions that even if brute force can overcome individuals and democracies, the spirit of freedom lives forever!