Before the general hysteria...

... created by 9/11, there was still a long-term project of the right wing in this country to diminish the rights of the common individual and increase the power of the state where the criminal justice system and state control were concerned.

Historically, this is not remarkable--the natural constituency of conservatives is the top wealthiest few percent of society along with those who imagine themselves in that category and those who aspire to be. Therefore, it's always been in the interest of conservatives to keep the commoners a little scared of state power. (Admittedly, over the last few decades, conservatives have tried to increase that base by conflating their aims with national security, thus blurring the lines--and the distinctions--between internal and external security, which has gained them votes from nationalists, nativists and eliminationists of varying stripe, regardless of economic strata.)

After 9/11, though, the assault on the Bill of Rights picked up considerable speed, and we're now faced with the results of both Congress and the courts abdicating their responsibilities in the face of some very arbitrary decisions on the part of Bush's executive power grab. There are two current legacies of this panicked retreat from individual rights in the news this past week, and they are intimately related. The first is District Court Judge John Bates' ruling that some people currently detained in Guantanamo's prisons may be held by the military indefinitely.

The giant elephant in the room here is that Bates has implicitly recognized that these people cannot be transferred to the civilian law enforcement and court system because both they and the witnesses against them have likely been tortured, on Bush and Cheney's orders, and the civilian courts could not convict them and would have to release them.

The second related incident is that the Democrats have stripped funding for closing Guantanamo's prisons from a pending appropriation bill, thus effectively leaving that prison open, because Democrats have prematurely run away from the issue of where to put detainees after transfer from military control.

Despite the legal niceties found deep in the weeds of these two actions, one point needs to be made: every single problem we now have concerning the status of detainees, secret black prisons around the world--and torture--stem from one lawless decision by the Bush/Cheney administration which went unchallenged by Congress and the courts long enough to create practical problems in the overturning of that decision. Simply, when Bush announced that he had created a legally undefined category, the unlawful combatant, as a means of denying both Congress and the courts any right to interfere with the disposition of people placed in that category wholly by executive fiat, it enabled virtually every other state crime committed by Bush, Cheney and their minions. This category was created to evade U.S. law and the U.S. legal system.

I'm not sure that the average person yet understands the import of that action. Quite literally, Bush created what George Orwell called an "unperson," and the proof that enough time has passed for that action to be commonly accepted is that the detainees at Guantanamo are regularly referred to in both the news media and the government by the legally undefined name Bush gave them: unlawful combatants. Prior to Bush's executive fiat, there were only two general legal categories into which those captured could be placed--prisoner of war, or criminal suspect.

Since the Geneva Conventions cover both regular and irregular forces in time of war, those captured in Afghanistan, and who were performing any function in defense of the Taliban government or of home defense against invading U.S. forces, should properly have been classified as prisoners of war, and treated according to the Geneva Conventions, including regular visits and inspections by the International Red Cross. Those captured elsewhere and were suspected of involvement in the attacks of 9/11 or active ongoing stateless terrorism should have been turned over to either the international courts or to our own criminal justice system.

That's what the law (and common sense) prescribed.

The horrifying part of all this is that Bush's executive decision to ignore and rewrite law unilaterally is now in the process of being institutionalized by the courts, despite the lawlessness of the original action on Bush's part. Congress has included U.S. citizens in the category of people who can be detained indefinitely via the Military Commissions Act, and the courts have ruled on Bush's actions as if they had legal legitimacy when established by Bush, which they most certainly did not.

In a way, this is exactly the same process by which corporations claimed protection under the 14th Amendment. Although no court had actually made a formal decision on that issue, the inference in the head notes of an unrelated Supreme Court decision that the court had ruled affirmatively on that question allowed it to be institutionalized in legal decisions and analysis ever after.

All this despite the fact that the language of the Fifth Amendment is abundantly clear on indefinite detention without due process. It cannot be done. Equally, the mere declaration of an open-ended, never-ending war on a tactic by a President is not sufficient to invoke the right to subject people to indefinite detention by the military at the direction of the President because of the President's wartime responsibilities.

In the same vein, Article VI says that ratified treaties (which includes the Geneva Conventions) become the supreme law of the land. Those treaties specify that prisoners of war must be repatriated at the cessation of hostilities, unless they are accused of war crimes, in which case they can only be tried by lawfully constituted tribunals. Bush created his tribunals out of whole cloth, with rules that were indifferent to law. Now, even those tribunals--with the passage of time--have taken on a patina of legitimacy, despite their illegitimate origins.

Long after the attacks of 9/11 have receded in the country's collective memory, the legal horrors enabled by them will remain and can be used against us, unless we keep in mind what Tom Paine said: "A long habit of not thinking something wrong gives it a superficial appearance of being right."

As with the most sophisticated weapon in the military-industrial complex's imagination, the weapons created by Bush and Cheney can be turned inward, used against the citizens of this country, to control them and to keep them fearful enough not to challenge the authority of the government when required. We simply can't afford to forget that the Constitution defined what the government could do. The Bill of Rights defined what it could not.

If one has doubts that the conservatives favor the power of the state over that of the individual, or that the illegal behavior of the Bushies can't possibly be institutionalized in law in contravention of the Bill of Rights, consider this assessment by Jeffrey Toobin of Chief Justice John Roberts in The New Yorker:

After four years on the Court, however, Roberts’s record is not that of a humble moderate but, rather, that of a doctrinaire conservative. The kind of humility that Roberts favors reflects a view that the Court should almost always defer to the existing power relationships in society. In every major case since he became the nation’s seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff. Even more than Scalia, who has embodied judicial conservatism during a generation of service on the Supreme Court, Roberts has served the interests, and reflected the values, of the contemporary Republican Party.

That said, it's well to remember who and what constitutes the public face of the contemporary Republican Party....