"weak and compliant"

Most likely the Party of Weltmacht will fail to see any silver linin' if the lawyer for one of their kidnap victims who wrote the following paragraphs gets the rulings he is seeking. Yet perhaps they should.

Recently, in the case Abu Ali v. Ashcroft, a Republican-appointed district judge rejected the government's position that the court lacked jurisdiction over a prisoner held in a Saudi prison who was incarcerated at the behest and supervision of the United States. Judge John D. Bates wrote that he could not find any basis for not hearing the detainee's petition "merely because the executive is allegedly working through the intermediary of a foreign ally." It's a promising ruling. And at Guantanamo, the government's efforts to evade the jurisdiction of American courts suffered setbacks in the last three years, in the cases Rasul and Hamdan. In the next year, the Supreme Court may definitively decide the scope of constitutional protection for foreign detainees in the upcoming cases Boumediene and Al-Odah. What is not clear from the relatively cautious rulings thus far is whether the court will base its Guantanamo rulings on the special status of the base, given its virtual American sovereignty, or instead affirm that the Constitution imposes absolute limits on U.S. officials to violate the fundamental rights of those whom they detain, wherever they may do so. The litigation over treatment at Bagram directly poses this question. And so rather than risk an adverse ruling, the administration is pretending to subcontract detention to a weak and compliant Kabul—while in truth American authorities run the show. The courts should not allow this ruse.

Mr. Eric Lewis, Esq., may be a bit of a Pangloss. Undoubtedly the kidnappers and their mouthpieces will resist any abstract and general affirmation "that the Constitution imposes absolute limits" on their duty "to violate the fundamental rights of those whom they detain." Few adherents to the militant extremist GOP of 2007 will consider that the 1787 parchment, even as subsequently amended, expressly acknowledges any universal category of "fundamental rights," or perhaps even any fundamental rights at all. Most of the Venerable Framers probably agreed with Mr. John Locke about a fundamental right to withdraw one's consent (and therefore one's allegiance and obedience) from a profoundly unsatisfactory régime, but to mention that one universal fundamental right while setting up a specific neorégime for themselves might well have seemed too much like asking for trouble. Neocomrade J. Yoo and Neocomrade Á. Scalia and many others in the aggression faction's Commissariat of Supralegal Affairs will laugh at the idea of any alien possessin' fundamental rights, and laugh harder at the idea that these imaginary entities are guaranteed by the Federal Constitution. These gentry despise foreign law as a matter of "conservative" principle or Party loyalty and they frequently say so, but that contempt certainly does not imply to them that foreign law is to be dispensed with altogether and every human being always judged under the Code of Greater Texas, national security permittin'.

Now along comes Lewis, Esq., to ask them to rule that various foreigners who have never so much as set foot in (or thrown bomb into) the holy Homeland must be pretended to have such fundamental rights, and pretended to have them under the writ of 1787. Hopefully they'll laugh themselves sick at Counselor Lewis and then have to retire for reasons of health. Compared to that modest proposal, pretty well anything would be "relatively cautious." [1]

On the other hand, there is Neocomrade Judge J. D. Bates, who has already ruled in a way that Mr. Lewis calls "promising." Those of us who never heard of the case ought to go look up the details, but meanwhile, from the first glance provided, it seems possible that Pangloss and Pollyanna are involved here as well. Bates "could not find any basis for not hearing the detainee's petition ‘merely because the executive is allegedly working through the intermediary of a foreign ally.’" What is the kidnap victim petitioning for, exactly? No doubt to be let out of whatever cyclone cellar or dry oil well the Kiddie Krusader Koalition have supralegally sequestered him in was the general idea of it, but what specific redress was prayed for? Serving les altesses royales du Ryad with a mandamus or a quo warranto is rather beyond the neocomrade's powers -- as well as perfectly pointless. Is Bates to demand that the Big Party commissars make demands upon the Great Cardboard Kingdom? Surely that sort of action pertains rather to the Executive than to the Judiciary. It is not easy to imagine circumstances in which any court in the holy Homeland could legitimately require the dispatch of a diplomatic note the contents of which are to be such-and-such.

To be sure, everybody understands that when the neocomrade wrote from the bench "allegedly working through the intermediary of a foreign ally," he was not referring to diplomatic intermediation and agency. But that only makes it even more impossible for him to get at the supralegalists. Exactly which intermediation and agency the Party commissars employed in this particular kidnappin' they would rather be burned at the stake than reveal to Bates, J., and thus to Televisionland and the electorate -- and even to foreigners/terrorists also. "National security" would, Father Zeus forbid!, be fatally impaired if they did that. So even if dispatching a writ might actually help Counselor Lewis's client, there is no address available to write on the envelope. [2]

So much for poor Counselor Lewis and the even more hapless Abú ‘Alí, considered legally. Considering politically, we must evaluate the claim (made in connection with his actual client, a different kidnappee) that "the administration is pretending to subcontract detention to a weak and compliant Kabul." To begin with, the Leader of All Progressive Áfghánistán, M. Hamíd Karzái, has not officially proclaimed himself to be "weak and compliant" vis-à-vis the commissars of Crawford. As regards Mr. Lewis's client, he may not even be so, although of course that is the Realpolitik of his situation more generally. Lewis does not tell us what the kidnappers allege against "Ruzatullah (like many Afghans, he has only one name), an Afghan farmer who was taken from his home more than two and a half years ago by U.S. troops," but nevertheless it seems extremely likely that whatever he's innocent of until proven guilty was far more of a threat to M. Karzái at New Kabul than to George XLIII many thousands of kilometers away at Château Kennebunkport. M. Karzái might well be happy to lock up Citizen Rúzatulláh himself, if he had to, although naturally he's even happier to let paleface Party operatives do his lockin' up for him at their own expense. Despite the invasionites' extreme selfishness, even a sham "coalition" is likely to benefit the little foreign friends of the GOP from time to time. No mortal arrangements are perfect, after all.

Out in the Big Party's semiconquered foreign provinces, supralegality works as follows, according to Mr. Lewis:

And indeed, no Afghan court appears to have jurisdiction over [the concentration camp at] Policharki's national defense wing. Nor have basic rights in Afghan law been afforded to the detainees there. Like our Constitution, the Afghan Constitution provides a right to counsel from the time of arrest, yet to date no Afghan detainee at Policharki has been permitted to see a lawyer, despite requests by family members and Afghan human rights groups.

Ah, the Konstitution of the brave new Áfghánistán! If we take Mr. Lewis's word for it, Neocomrade Professor N. Feldman, now of the Harvard Law School, must have allowed a little Madisonian substance to trickle into his masterpiece on occasion, it is not all a series of ineffectual pious wishes and blanks to be filled in later. Citizen Rúzatulláh possesses a Feldman-warrantied right to counsel, why, to think of that! Of course this priceless boon has nothing to do with whether he meets with Mr. Lewis or any other pettifoggin' attorney any decade soon: let's not be hasty and impatient, please! They're only beginners at "democracy" out in darkest Khurasán, after all, they still need those Dubya Brand™ trainin' wheels on their national bike. Better safe than sorry!

Reflecting on these admirable arrangements from the point of view of that Weltmacht that Boy and Party aspire to and the libido dominandi that they continually exhibit already helps one pin down exactly what sort of supralegal Power and Domination they have in mind. By no means do the wannabe Big Managers of the World want to dictate everythin' in detail. If "imperialism" means behaving as Britain and France and Germany did in Century XIX, then our now invasionites are not to be rudely labeled imperialists. Everybody knows how much the Crawfordite extremists despise nation-buildin', but it should be more widely appreciated that they despise nation-runnin' as well. Administration ain't them, just as Rulalaw ain't them. Or to put the same point another way, they are as much supra-administrativists as they are supralegalists. The sine quâ non is that Big Management must be able to intervene unilaterally and preëmptively in both administration and jurisprudence whenever it likes, never bein' bound by any of the "rules" of either sphere. Lesser breeds without the infallible guidance of Boy and Party, on the other hand, should not be allowed to put shudder-quotes around the word "rules."

I believe that's the militant GOP theory of the matter. Certain appearances out in their semiconquered provinces overseas might give the impression that they are deliberately instantiatin' the dilbertarian Utopia of Miss Ayn Rand and Mr. Robert Nozick, but as I said, no mortal arrangements are perfect. At the end of the day, it is perhaps rather Glory than power or dominion that Boy and Party aim at, call it the Glory of GOP Exceptionalism. Logic decrees that they cannot really have that unless everybody else alive is more or less unexceptional and thus "regular." As radical hormone-basers, most really existin' Republicans certainly do not see eye to eye with Lady Logic and they would never dream of describin' themselves as I describe. Nevertheless Lady Logic may pass for the Invisible Hand that shapes their ends willy-nilly, and her ladyship requires imperiously that if Crawfordites are to be the Glorious Exception, everybody else must (more or less) obey the rules.

However, it may not much matter exactly which rules subjects of the OnePercenters obey, or whether all subjects obey precisely the same rules. So long as Quod licet Iovi non licet bovi is universally acknowledged -- and sufficiently enforced so as not to bring so fundamental a Big Party maxim into practical contempt -- does it much matter that there are many breeds of cattle but only one Father Zeus? I fail to see why it should. [3]


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[1] In a pointless and Cloudcuckooland way, Mr. Lewis could put together some sort of case for his bold notion on the basis of various treaties that his Uncle Sam has entered into. The Venerable Framers did make it quite clear that such specific compacts with identifiable alien parties were originally intended by themselves to be binding upon the neorégime that they instituted. "Is not the Universal Declamation of Human Rights the law of the land, then?", Mr. Lewis might orate, "considering that the United States adhered to the United Nation Organization by treaty?" It would be fun to watch him try that out on the Big Management Party commissars, but it certainly wouldn't do his client any good.


[2] I thought at first that, while doing anything useful for the victim is impossible, the actual kidnappers might be inconvenienced a little, assuming them to be U.S. nationals. But that is no go as well, for they are safely ensconced inside the Black Hole of executive privilege and "national security." Figuratively, of course, everybody is aware that the Big Management Party's supralegal black hole is located in the dank dungeons of Castle Cheney, but unfortunately a U.S. marshall would require a more literal description of where to go with the summons. "Undisclosed location" won't quite do.

[3] The Party of Jupiter are indeed rather like their mythological patron: occasional lightnin' bolts cast down in terrorem seem very suitable to Himself's dignity and glory, whereas looking after systematic administration and Rulalaw would pale rapidly. As Prof. Gilbert Murray remarked of the whole Olympus crowd, "They never created the world, all they did was conquer it." Republican Party extremists behave much like that.

The Crawfordites share Himself Above's laziness as well as His glory-hoggin', and probably the explanation is the same in both cases, namely an infatuation with one's own Hyperpower, real or perceived. The lesser breeds without are so "weak," that it often does not seem to matter a great deal how "compliant" they are. Provided, of course, that they don't start bumptiously affirming some supposed right to be noncompliant, for that would constitute a direct assault upon the Glory and Dignity of Himself Above, that would be like some contemptible cow pretending to be the Father of gods and men.

This, I take it, is militant extremism's real objection to the Islamic Republic of Iran, which has never concealed that it thinks Republican Party Values are a detestable crock of doo-doo that ought not to be complied with by any rational creature. The evil Qommies do not just attempt to get by with as much noncompliance as possible on the side the way all other lesser breeds without do, even those on Airstrip One. The Qommies don't cheat, they denounce the Big Party Weltmacht racket itself. Accordingly, there is a very plausible rumor that Castle Cheney is determined to put them out of business altogether before the next election in the holy Homeland, lest the Big Party lose control of Uncle Sam's Hyperpower on that occasion.

But God knows best, and especially about the future.