I never thought that I’d have to write this about that land that I love.
But now there’s no escaping the fact that our government possesses tyrannical powers that are unchecked by appeal to the "independent" courts.
How this president, and future ones, will use that power is unknown. As the historian Charles Burton Marshall once famously said, "there’s no such thing as the foreseeable future."
But what I have learned from people I trust tells me that the future of our liberties is in grave peril.
For instance, consider the Founding Fathers. They made it clear that the greatest danger to liberty was not England, or Islam, or Indians, or any foreign foe. The greatest enemy was government — our government, driven by lust for lucre and power, breaking through the firm constitutional fences that the Founders placed around it.
Our Founders’ biggest nightmare was the prospect of an executive with totally unlimited power. They relied on the dominant powers of the legislature, facing frequent election by the "virtuous people" of Federalist 57, who would also keep their representatives in line.
And consider the trustworthy conservative stalwart, Paul Weyrich. He often admonishes well-meaning but ungrounded conservatives: "do not give to your friend any power that may someday fall into the hands of your enemy."
Against the grain of those dire warnings, past and present, the Bush Administration has claimed, and the U.S. Court of Appeals for the 4th Circuit has just confirmed, the unlimited power of the executive to do anything it wants to in the name of "national security."
Anyone — whether a foreigner or an American citizen — can be kidnapped, at home or abroad, either by a foreign government at the request of the U.S. government, by an agent or employee(s) of the U.S. government or by of the U.S. government itself. That person can then be transported anywhere in the world, imprisoned indefinitely, kept from any outside contact, tortured, even killed.
All in the name of "national security."
And there is nothing you can do about it.
The case in question was filed by one Khaled El-Masri — but it could have happened to anybody. El-Masri is a German citizen who says he was kidnapped, jailed, and tortured by the CIA in Europe. The Court’s opinion, which is well worth reading in full, narrates El Masri’s claims:
[O]n December 31, 2003, while travelling in Macedonia, he was detained by Macedonian law enforcement officials; after twenty-three days in Macedonian custody, he was handed over to CIA operatives, who flew him to a CIA-operated detention facility near Kabul, Afghanistan; he was held in this CIA facility until May 28, 2004, when he was transported to Albania and released in a remote area; and Albanian officials then picked him up and took him to an airport in Tirana, Albania, from which he travelled to his home in Germany.
El-Masri was released because the CIA finally realized they thought he was somebody else. "Oops! We tortured the wrong man. Sorry."
According the New York Times, "in June 2006, a report issued by the Council of Europe concluded that Mr. Masri’s account of having been abducted and mistreated was substantially accurate. In January, a German court issued arrest warrants for 13 people it said were involved in the matter. Prosecutors would not identify the suspects."
According to German news reports, "Senior US diplomats" tried to reverse the German government’s decision to prosecute those involved. The German government refused, as the Italian government did in a similar recent case.
The CIA has had more success in the United States courts than it did in Germany and Italy. Even though it refuses to confirm or deny any part of Mr. El-Masri’s story, it has nonetheless demanded that the U.S. Federal Courts throw the case down the Memory Hole. In particular, it opposed El Masri’s appeal.
The unanimous decision of the Court of Appeals granting the CIA request is very readable — at least for Kafka fans. In 24 calm and careful pages, the court methodically closes off every avenue that any victim of kidnapping, imprisonment, torture, or even murder might use to seek justice under American law. The rule is ironclad: if the government asserts that such an effort will reveal "state secrets," the revelation of which would violate the "national interest," or be harmful to "national security," the Court is required to vacate the case, and let the Government off scot-free.
Which is exactly what the unanimous appeals court did last Friday.
Like all ideological arguments, the Court’s opinion is very logical, once one accepts the axiomatic preambles. In this case, the Court clearly identifies the axiom: the Court is bound to trust the Executive Branch, when the chips are down, without question. It cannot use its own independent judgment regarding the evidence, or lack thereof, regarding the government’s assertion of "state secrets" that might be divulged at trial. In fact, it cannot even see the evidence, much less question it.
"El Masri," the Court’s opinion explains, "would need to rely on witnesses whose identities, and evidence the very existence of which, must remain confidential in the interest of national security."
Says who? The government, of course — from whose illegal excesses the courts are supposed to protect us.
Thus, if you are kidnapped, raped, tortured, or even killed by persons "whose identities must remain confidential in the interest of national security," you and your heirs have no recourse under the laws of the Land of the Free.
"But wait," I hear you saying (or, perhaps, screaming), "the judge is able to decide for himself whether the "state secrets" claim is bogus, right?"
Wrong. The Executive Branch, all on its own, has the right to assert that the secrets are so sensitive that even the Federal Judge himself cannot see them.
After information has been determined to be privileged under the state secrets doctrine, it is absolutely protected from disclosure — even for the purpose of in camera examination by the court. On this point, Reynolds could not be more specific: “When . . . the occasion for the privilege is appropriate . . . the court should not jeopardize the security which the privilege is meant to protect by insisting upon an examination of the evidence, even by the judge alone, in chambers.”
And who "determines" that the information is "privileged"? And that the "occasion" is "appropriate"? Obviously, the Executive branch. Period. Of course, the government must "satisfy" the court that it is not abusing the "state secret" privilege. But, when push comes to shove, the Judge is not allowed to see the evidence on the basis of which to make an independent judgment. He must take the government’s word for it. The government’s unexamined claim "satisfies" that requirement.
Once the government hands him an "affidavit or personal declaration" from the department head making the claim, the judge must show "utmost deference" to the government (note: that phrase appears nowhere in the Constitution). The court is not even allowed to ask the government to explain its case, if the answer would itself create an "unacceptable danger of injurious disclosure." The government can stonewall the judge, but the Court’s hands are tied.
Never mind that the "department head making the claim" would be the most likely person to want to cover up any crimes committed by his subordinates, either by his order, or in a rogue operation which the department head’s ignorance had allowed to go forward. If any crimes were exposed, the department head would be either a criminal himself, or criminally negligent, or grossly incompetent. In any case, a rational person would demand that a Court look at the man behind the curtain.
But the "state secrets" doctrine now guarantees that such government criminals are above — and beyond — the law.
But the government is our friend, isn’t it? It helps us after hurricanes and things. It is not — certainly, it cannot be — the "enemy" that Mr. Weyrich warns us against… Right?
Dear reader, for the past four days some 5,000 "conservatives" have been milling around the lobby of a Washington hotel at a meeting called "CPAC," wringing their hands about the inevitability of President Hillary Rodham come January 2009.
So, Bush fans, what was that you were saying about no "enemy"?
By the way, according to press reports, these "conservatives" stood up and cheered when the White House press spokesman defended the Iraq war, including (one supposes — he hasn’t quit, after all) the "rendition" program that has snapped up untold hundreds of El-Masris and spirited them off into the black abyss of "national security."
As always in things governmental, there is a certain irony here. In the Declaration of Independence, our Founding Fathers condemned the insane and tyrannical King George III for the outrages committed by his foreign mercenaries, including, "For protecting them, by mock trial, from punishment for any murders which they should commit on the inhabitants of these states."
At least the Colonists were given a "mock trial" that exonerated the Hessian criminals. In modern cases involving "national security," the criminals need not worry about being subjected to any trial at all.
Once one gets over (if one can) the outrage brought on by this blatant assertion of executive power-by-fiat, some interesting practical ingredients begin to emerge, factors that might have motivated the Executive branch in its "state secrets" claim. Such as: one of the defendants named by El-Masri is George Tenet, the former director of the CIA.
We all know the most crucial evidence of Tenet’s disastrous professional performance at CIA. It is no secret that his agency failed miserably in its responsibility to protect us against 9-11. However, he "played rough" when he left CIA: he wasn’t going to be the fall guy for 9-11, and Bush-Cheney apparently decided that they’d better not call his bluff. He knew too much. In order, one concludes, to silence Tenet, Bush gave him the Medal of Freedom (thus forever making that award worthless to any future recipient, by the way).
Moreover, the scathing report by the independent Inspector general of the CIA’s miserable performance under Tenet was deep-sixed, and, unlike virtually all other IG reports of its kind, it was never made public. Tenet-friendly sources inside the CIA complained that it was too "negative." Logical minds outside the CIA might conclude that Tenet’s CIA was grossly incompetent. But we will never know. The IG report is a "state secret."
Most Americans, when they commit a crime, cannot insist that their prosecution might reveal "state secrets," and thus, on the power of their "personal declaration" alone, dismiss the proceedings with the back of their hand. No, they must persuade twelve strong men and true of their case. But it is increasingly apparent that the disastrously incompetent and increasingly powerful executive branch of the U.S. government can do just that — in fact, it just did.
Well, as Lenin used to say, what is to be done?
Clearly a higher court could demand and end to the "state secrets" charade. But Chief Justice Roberts is undoubtedly well aware that President Lincoln once issued an arrest warrant for Chief Justice Roger B. Taney. And the neocon peanut gallery has taken every possible occasion to assure President Bush that he is the resurrection of Lincoln. After all, under Lincoln,
Without the sanction of law the federal government arrested men by the thousands and confined them in military prisons. The number of such executive arrests was certainly over 13,000, and it has been estimated to have been as high as 38,000 (Columbia Law Review, XXI, 527—28, 1921). This policy was bitterly criticized in some quarters, but it is generally assumed that the people as a whole supported the arrest policy.
Well, if the Court doesn’t act, the Congress can. But will it? After all, the Congress has been cowering at the prospect of a constitutional confrontation with Bush for over five years, and there is no sign that it will change now, just because the chairs have been rearranged. After all, President Bush’s "signing statements" have asserted that the Congress is essentially irrelevant, and President Hillary Clinton-Rodham will undoubtedly follow suit after January 20, 2009.
So "what is to be done" boils down to, "what shall we do." And for that, I offer no better a role model than the incredibly admirable Richard Wurmbrand.
My father introduced me to Pastor Wurmbrand forty years ago, shortly after he was released from prison in Communist Romania. Why was he in prison? Because the secret police had arrested him. Romania had been delivered under the Communist boot by President Franklin D. Roosevelt in his negotiations with his good friend, "Uncle Joe" Stalin, at Yalta. As a result, 100 million Christians, including the Wurmbrands, were handed over to Communist dictators, with the full faith and credit of the United States government.
According to Persecution.com, in 1945
Richard and Sabina Wurmbrand attended the Congress of Cults organized by the [new] Romanian Communist government. Many religious leaders came forward to praise Communism and to swear loyalty to the new regime. Sabina said, "Richard, stand up and wash away this shame from the face of Christ." Richard warned, "If I do so, you’ll lose your husband." She replied, "I don’t wish to have a coward as a husband." Thus Richard declared to the 4,000 delegates, whose speeches were broadcast to the whole nation, that their duty is to glorify God and Christ alone.
Romania’s Communist government jailed and tortured Wurmbrand for a total of 13 years. His wife was also jailed — and was then told that her husband had died in prison. Finally, "in December 1965, the Norwegian Mission to the Jews and the Hebrew Christian Alliance paid $10,000 in ransom to the Communist government to allow the Wurmbrand family to leave Romania [Wurmbrand was a convert from Judaism]."
When Pastor Wurmbrand appeared on "The Manion Forum," my father’s television program, he stood in front of the cameras and stripped off his shirt to show countless scars, the result of his torture in captivity, to the audience. It was an unforgettable moment.
23 years later, on Christmas day 1989, Nicolae Ceauşescu, the Communist dictator of Romania, and his wife Elena, the regime’s chief torturer, were executed by a firing squad. Ceauşescu sang the "Internationale" and proclaimed that history would vindicate him. Elena Ceauşescu "told everybody to go to hell." There were no apologies, only contempt for their executioners. On the way to her execution, Elena told her ungrateful captors, "I have been like a mother to you."
(Author’s note: the Romanian national secret police were called the Securitate, Romanian for "security." Undoubtedly they conducted their kidnappings and killings to protect "national security." The Wurmbrands returned to Romania in 1990. Sabina Wurmbrand died in 2000, and Pastor Richard Wurmbrand died in 2001).