Democracy and Schutzhaft

by Joe Blow   

Democracy

L. Paul Bremer couldn’t wait to grab a flight out of Baghdad . Reportedly, he immediately headed for the airport upon transfer of partial sovereignty to Iraqi interim Prime Minister Iyad Allawi. The surprise ceremony was over before it was even announced.

In less than two hours, Bremer was airborne and homeward bound. That’s the good news. The bad news is that nothing has changed and 130,000 American troops are still sitting there, wondering why. How long do you think it will take them to figure out that they were left behind in a fourth generation war zone, again?

I will allow the reader to surmise who Bremer feared the most at the airport departure gate, terrorists or heavily armed American troops watching him board an Air Force C-130 for his one-way trip home without them.

Rule #1 of effective leadership: Lead from the front. The leader needs to be the first to arrive and the last to leave, no exceptions. In Bremer’s case, he didn’t even come close. Not only was he a late arrival, he also departed early. Ask any grunt, nothing kills unit morale faster than watching the latecomers depart for home ahead of you.

While the Bush regime is attempting to spin this event as a great victory, nothing could be further from the truth. Bremer’s early departure has much less to do with stability on the ground in Baghdad than it has to do with ensuring that the imminent murder of the captured Marine occurs after the transfer of partial sovereignty, not before.

That way, when it happens, the U.S. can make the tongue-in-cheek case that Iraqi forces cannot maintain security on the streets of Iraq , thereby putting U.S. forces at risk. CENTCOM has been making noises for additional troops for days. Trust me, once the photos of the soon-to-be dead Marine appear, additional troops will be approved.

Schutzhaft

While Bremer was touting the merits of bringing democracy to Iraq, the U.S. Supreme Court was announcing its decision for its own version of the Nazis’ legal concept of Schutzhaft or “protective custody” — which enabled the Nazis to arrest and incarcerate people without charging them with a crime — but for American citizens instead.

Tim McGlone writes, “Yaser Esam Hamdi, the American citizen captured on an Afghanistan battlefield, will finally get his day in Norfolk ’s federal court . . . . [T]he U.S. Supreme Court ruled today that the government can detain so-called ‘enemy combatants’ under limited circumstances during times of war, but that the accused can contest that detention before a federal judge.

“The court ruled, 6-3, that the Pentagon has provided insufficient evidence to justify Hamdi’s prolonged detention and ordered that the case be returned to Norfolk’s U.S. District Court Judge Robert G. Doumar. ‘We reaffirm today the fundamental nature of a citizen’s right to be free from involuntary confinement by his own government without due process of law,’ Justice Sandra Day O’Connor wrote for the majority. ‘A state of war is not a blank check for the president when it comes to the rights of the nation’s citizens.’

“Clearly concerned about Hamdi’s open-ended solitary detention, O’Connor added in the lengthy decision that ‘indefinite detention for the purpose of interrogation is not authorized.’ After learning Hamdi was a U.S. citizen, the military brought him to the brig at Norfolk Naval Station, where he remained until last summer. He is now in a brig outside Charleston , S.C. He has been in military custody for more than 2 ½ years without charge.”

Put yourself in his shoes. Does this sound like a speedy trial to you?

While most will see this decision as a victory for freedom, I see it as the first step onto the slippery slope.

“The Third Reich was a police state characterized by arbitrary arrest and imprisonment of political and ideological opponents in concentration camps. With the reinterpretation of ‘protective custody’ (Schutzhaft) in 1933, police power became independent of judicial controls. In Nazi terminology, protective custody meant the arrest--without judicial review--of real and potential opponents of the regime. ‘Protective custody’ prisoners were not confined within the normal prison system but in concentration camps under the exclusive authority of the SS (Schutzstaffel; the elite guard of the Nazi state). The Third Reich has been called a dual state, since the normal judicial system coexisted with the arbitrary power of Hitler and the police.”

With this decision the court has approved Schutzhaft Light. It does not require a charge to be brought, only that a hearing be held. Once that hearing is held, a prisoner can still be held indefinitely. What is the likelihood that an alleged “enemy combatant” will be released, especially in wartime? Slim at best.

The military’s assertion that Hamdi is an “enemy combatant” will be given more than a fair amount of deference. The judicial review granted in this case will more than likely rise to little more than a legal rubber stamp of the military’s position. When it comes to wartime, the military will always remain superior to any form of judicial review of its actions. With that in mind, Hamdi is clearly not the great civil rights victory that many will attempt to make it out to be.

Note that like the Nazis’ prisoners, Hamdi is being kept outside the normal prison system in a Navy brig in Charleston , under military control.

What we could be seeing is the rise of dual judicial systems in America , just like in Nazi Germany. One for political prisoners and the other for common criminals.

Hamdi has, at least temporarily, denied some of the arbitrary power asserted by Bush, but in so doing I believe that it has opened the door, however slightly, to future tyranny.

If I am correct, both the Bush regime and civil rights scored points today, but the losers could very well be other American citizens who, for whatever reason, are alleged to be “terrorists” or “enemy combatants” in the future.