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by Chris Floyd

This is my latest column for Truthout.org.

Like the two entwining strands of the double helix, law and power form the genetic structure of government. Law is nothing but empty verbiage without power to back it up, enforce it, embody it. And power without law is nothing but a mad ape, baring its teeth, thumping its chest, raping and beating where it pleases, taking what it wants: a bestial thing, born in the muddy swamp of our lowest, blindest, rawest biochemical impulses. Disconnect these strands and things fall apart, as Yeats says; the center literally cannot hold, and the blood-dimmed tide is loosed upon the world.

We have seen the proof of this in our time. When law – understood here as agreed-upon principles of justice and commonweal – is treated as a filthy rag or a "quaint" relic or a cynical sham by those in power, the result is an ever-growing suppuration of greed, lies, brutality and violence. Its starkest form is evident in Iraq, where a lawless invasion based on deceit has created a hell beyond imagining, and beyond control. At home, unfettered power has stripped Americans of their essential liberties and human rights, which are now no longer unalienable and inviolable but are instead the gift of the "unitary executive," to bestow – or withhold – as he sees fit.

For those who hoped that November's elections might bring some essential alteration in our degraded estate, some repair of the broken strands, recent events have been disspiriting indeed. Two in particular stand out as exemplary of the ugly reality behind the bright rhetoric of "change" and "moderation" now  twinkling in the Beltway air. Although apparently unrelated, they are in fact part of the same malignant process that has been devouring the structure – and substance – of the Republic for years.

One strand of this revealing juxtaposition involves the release of a video showing the nightmarish treatment meted out to Jose Padilla – an American citizen seized on American soil and subjected to torture under indefinite detention without charges or trial, and who was subsequently revealed by the Bush Administration itself to have engaged in no conspiracy or act of hostility toward the United States. Now his mind has been broken by years of brutal "interrogation methods," complete isolation and bizarre sensory-deprivation techniques, leaving him incapable of aiding his defense in his trial for the much-reduced – and, according to most legal experts, highly shaky – charges of trying to aid Islamist groups in Chechnya and elsewhere.

The other strand centers on the Senate hearings and confirmation of Robert Gates as defense secretary, in which one of the most compromised candidates ever nominated for a major Cabinet post was ushered into power with loving care by a Democratic faction supposedly dedicated to "vigilant oversight" and "asking tough questions" after their triumph at the polls last month.

Taken together, these events represent a kind of photographic negative of the double helix of a healthful state: instead of law and power, we see tyranny and weakness, linked in a destructive downward spiral that shows no sign of ending.

To understand more fully the nature of the atrocity inflicted on Jose Padilla – and the whole penumbra of constitutional and moral issues raised by Bush's liberty-gutting "unitary executive" dictatorship – we must go back precisely 140 years, to December 1866, when the Supreme Court rendered its formal opinion in the case Ex Parte Milligan. It was a decisive ruling against a government that had far overreached its powers, stripping away essential liberties in the name of national security. The Justice who authored the unanimous majority opinion was a Republican, an old friend and political crony of the president who had appointed him. Even so, his ruling struck hard at the abuses set in train by his patron. He stood upon the law, he stood upon the Constitution, even in the aftermath of a shattering blow that had killed more than 600,000 Americans and almost destroyed the nation itself.

This is what the Court decided:

"The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism, but the theory of necessity on which it is based is false; for the government, within the Constitution, has all the powers granted to it, which are necessary to preserve its existence."

The author was Justice David Davis, an Illinois lawyer appointed by Abraham Lincoln after helping run the campaign that gave his old colleague the presidency in the fateful 1860 election. (Davis was also, by a strange quirk of history, the second cousin of George W. Bush's great-grandfather.) By the time the Court issued its ruling, Lincoln was dead, but the aftereffects of his ever-expanding suspension of civil liberties during wartime were still roiling through the courts, and through America's fractured society.  The Milligan ruling was, in the words of legal scholar John P. Frank, "one of the truly great documents of the American Constitution," a "bulwark" for civil liberties, expansive and exacting in the Constitutional protections it spelled out.

The ruling acknowledged that there are times when the writ of habeas corpus may have to be suspended in an area where hostilities are directly taking place – but even this power, they noted, was highly circumscribed and specifically delegated to Congress, not the president. Lincoln exceeded this authority on numerous occasions, increasing the scope of his powers until the entire Union was essentially under martial law, and anyone arbitrarily deemed guilty of never-defined "disloyal practices" could be arrested or silenced – in the latter case by having their newspaper shut down, for instance. (Lincoln would sometimes – but not always – seek ex post facto Congressional authorization for these acts.) Some parts of the Union that the Lincoln administration thought particularly disloyal were officially put under martial law -- such as southern Indiana, where anti-war agitator Lambdin Milligan and four others were accused of a plot to free Confederate prisoners, and were summarily tried and sentenced to death by a military tribunal.

It was this case that the Court – five of whom were Lincoln appointees – overturned in such a decided fashion. The ruling is plain: Constitutional protections not only apply "equally in war and peace" but also – in a dramatic extension of this legal shield – to "all classes of men, at all times, and under all circumstances." No emergency – not even open civil war – warrants their suspension. Even in wartime, the President's powers, though expanded, are still restrained: "he is controlled by law, and has his appropriate sphere of duty, which is to execute, not to make, the laws."

All of this – and much more of the ruling besides – is directly applicable to the transparently illicit and unconstitutional regime set up by the Bush Administration to prosecute its self-declared "War on Terror." Indefinite detention, torture, military tribunals, the arbitrary creation of novel legal categories such as "unlawful enemy combatant," warrantless surveillance, extrajudicial killings, kidnapping and rendition of uncharged captives, secret prisons – in short, the entire apparatus whose machinations led to the destruction of Jose Padilla's mind – is completely without basis in law, as the U.S. Supreme Court ruled 140 years ago.

In fact, the current Court drew heavily on Milligan in another case involving an American citizen imprisoned in the "War on Terror" (after being captured on the battlefield, unlike Padilla, who was grabbed while walking through the Chicago airport): Hamdi vs. Rumsfeld. It was this 2004 ruling that sent the Bush Administration back to Congress for rubberstamp approval of a bill that turned out to be not a limitation of the presidential dictatorship, but its vast expansion, including the permanent loss of habeas corpus rights even by Terror War captives who had not engaged in hostilities against the United States. (Indeed, as Administration officials have explicitly stated, these strictures could also apply to people who had unwittingly aided an accused terrorist organization in some fashion.) Many legal experts agree that the deliberately vague language of this new bill – the now-infamous "Military Commissions Act" – includes American citizens among those who can be arbitrarily designated as "unlawful enemy combatants" and held forever without charge or trial at the pleasure of the "unitary executive."

The MCA was regarded by many as the final guttering-out of the Republic's ancient flame. It wholeheartedly accepted the principle of the "unitary executive" and Bush's claim of "inherent powers" which allow him to disregard any part of any law that he doesn't like – despite the fact that such ghostly powers do not exist in the Constitution, as the Milligan ruling clearly stated. By codifying the principle of presidential dictatorship into "law" – now understood merely as the ratification of the executive's arbitrary decisions – the MCA transformed the fundamental nature of the American state. As noted above, all liberties are now at the mercy of the executive. The abuses of power that this principle has led to are already enormous; the potential for further abuses under this new-style state is virtually without limit.

But suddenly, in the Republic's darkest hour, came a ray of light: against all odds – and a vast GOP vote-fixing operation that shaved off at least four million likely Democratic votes, as Greg Palast has documented – the American people ousted Bush's willing executioners of liberty from their stranglehold on Congress. Hopes long quelled by years of unanswered outrages sprang back to life: Surely now will come a day of reckoning. Now will come a restoration. Now the great double helix of law and power will be stitched back together again.

But will it?

The hope of a return to at least a semblance of Constitutional government rests on the Democrats' newly-acquired majority. It is perhaps a mark of how very desperate the nation's condition has become that this particular group of national Democratic leaders could actually inspire hopes for substantial change. Their record over the past five years has been one of accommodation, cowardice, confusion and weakness. No issue – with the possible exception of Social Security privatization – was worth a concerted fight, a filibuster, or even tough questioning: not even a war of aggression launched while UN inspectors were in the process of determining the veracity of the casus belli. The president wanted his war no matter what; they gave him a blank check for it – and they keep on cashing it.

From the Patriot Act to the "Authorization to Use Military Force" against Iraq – which has become the Bush Administration's repeatedly invoked "Enabling Act" to "justify" its authoritarian dictates – the Congressional Democrats (aside from a handful of honorable exceptions) have offered, at best, only token, tepid opposition to Bush's relentless encroachments and blood-soaked follies. Indeed, many of them have often been enthusiastic partners in the excesses. Very few have dissented from the underlying principles of Bush's policies (war, war profiteering, "full spectrum dominance" of world affairs, corporate hegemony of American society, the diminution of liberty, etc.); they have only taken issue with tactical questions of how these polices have been pursued. They could not even summon up the guts to filibuster the MCA, to go down fighting for the Republic with every tool at their disposal.

And yet still it is hoped that the strong support of the American people in the November elections will somehow transform this gaggle of timorous geese into bold champions of liberty when they assume the mantle of majorityship in January. Well, it may be so; stranger things have happened in the world. But if their recent performance during the Gates confirmation process is any indication, essentially nothing will change at all: the horror in Iraq will rage on and on, and there will be no legal reckoning for the perpetrators of unjust war, barbarous practices and the unlawful exercise of arbitrary rule.

Gates had been raked over hot coals during his last confirmation, as CIA director in 1991: four months of hearings, with hundreds of witnesses, thousands of documents and four days on the grill for Gates himself, as the New York Times notes. Much of the probe centered on Gates' role in the Iran-Contra affair. ("Affair" being the somewhat light-hearted word for an operation that involved shipping arms illegally to the "Islamofascist" mullahs of Iran, running a terrorist war against Nicaragua, waging "psy-ops" war on the American people and systematically lying to Congress.) And even more details of Gates' murky past in the shadowlands of covert ops and backroom deals have come to light in subsequent years, as the indefatigable Robert Parry of Consortiumnews.com reports (here, here and here). These include:

•    highly credible allegations of Gates' role in the secret funneling of weapons to Saddam Hussein in the 1980s, at the behest of the Reagan-Bush administration;
•    highly credible allegations of his role in the "October Surprise" plot of 1980, which saw top Reagan-Bush campaign officials (and most likely Bush I himself) negotiating with Iranian leaders to keep the American hostages in Tehran held captive until after the election (an act of high treason, by the way);
•    his blatant skewing of intelligence data to serve partisan political purposes, in particular helping the Reagan-Bush team craft baseless, fearmongering scare stories about the "Soviet menace;"
•    his bellicose, hair-trigger plans for bombing Nicaragua and launching an all-out invasion of Libya, which alarmed even his hardcore, hard-Right mentors like Bill Casey.

Matters worth a question or two, you might think, before giving a man control over the most gargantuan military machine in the history of the world, along with its ever-expanding intelligence tentacles (both at home and abroad) and hydra-headed covert operations. Yet none of these uncomfortable topics were broached during the perfunctory, one-day hearing on Gates' acquisition of the Pentagon. Even old Democratic lions like Ted Kennedy and Robert Byrd purred like kittens as the chubby-cheeked Beltway operator offered up a few well-scripted "moderate" noises. Instead of an exercise in serious oversight, the hearing was a "day of compliments and warm chuckles," as the NYT described it.

But the past wasn't the only thing being avoided by the ever-polite "opposition" party; they gave Gates a pass on the present as well. As Parry astutely notes, the Democrats failed "to nail down the nominee’s precise thinking on any aspect of the war strategy or even to secure a guarantee that the Pentagon would turn over documents for future oversight hearings. Among many gaps in the questioning, the Democrats didn’t press Gates on whether he shared the neoconservative vision of violently remaking the Middle East, whether he endorsed the Military Commissions Act’s elimination of habeas corpus rights to fair trials, whether he supports warrantless eavesdropping by the Pentagon’s National Security Agency, whether he agrees with Bush’s claim of “plenary” – or unlimited – powers as a Commander in Chief who can override laws and the U.S. Constitution."

And so Gates, a long-time Bush Family factotum – in fact, even more of a compliant "Family" member than the ever-prickly Donald Rumsfeld – is in like Flynn. Not a single Democrat voted against him. They have clearly begun this "new era" as they mean to go on. They have already surrendered the biggest weapon in their arsenal that might induce genuine change in the Bush Administration's disastrous policies and force the White House to cooperate with Congressional investigations: the threat of impeachment for the many high crimes and misdemeanors that Bush and Dick Cheney could very plausibly be charged with. House Speaker Nancy Pelosi has firmly ruled out any moves toward such actual accountability.

What's more, the Democrats have also surrendered the most effective tool for bringing the murderous, illicit war in Iraq to an end: the power of the purse, which an earlier Congress used to cut off funds for the Vietnam War. Today's Democratic leaders swiftly rejected the call by Rep. Dennis Kucinich for similar action. In fact, the newly-selected House Majority Leader, Steny Hoyer, echoes warhawk Sen. John McCain in calling for even more troops and more money to be thrown into the Iraqi fire.

Yes, there will be cosmetic changes when the Democrats take the reins. There will be more investigations – largely toothless, with the White House stonewalling and running out the clock, although a few low-hanging "bad apples" might be picked off here and there. There will be symbolic gestures, such as the recently introduced bill to rescind the MCA – a piece of pure political theater that has no chance of becoming law: the Democratic majority will be too small to override the inevitable veto. In fact, the entire "progressive agenda" – which anxious moderates fret will be "threatened" if the Democrats actually try to carry out their public mandate of holding the Administration responsible for its actions – will be hobbled in any case by Bush's ironclad veto, no matter how many warm chuckles the Dems share with Administration minions. Spineless in opposition, the Democrats have already disarmed themselves before taking a share of power – and so power will remain in the lawless hands of the "unitary executive."

Where then is the end of the downward spiral, the "widening gyre" as law and power spin farther and farther apart? And what rough beast, sprung from this new genetic code of tyranny and weakness, is even now slouching toward Bethlehem – or Babylon – to be born?

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