Emergency Powers

Remember when we saw Star Wars: Episode III, in the nadir of the "War on Terror" epoch, and we all immediately grasped the heavy-handed political point George Lucas was trying to make? 

As you recall, Lucas has Emperor Palpatine seize total power at the end of the prequel trilogy by invoking a sort of Carl Schmitt-ian "state of exception." "I will surrender these emergency powers when this crisis has abated," he falsely promises, in the very moment when the audience knows he is actually becoming emperor-for-life. Oh my God! we all thought. This is just like Bush and the PATRIOT Act!

And then years go by. Bush, while authorizing torture and thus committing war crimes, does not in fact become a dictator. We enjoy two democratic elections after his departure from office in which we witness a peaceful transfer of power. We start to think: huh, maybe all of that was a bit overstated. Nothing really terrible happened (so quickly we forget). 

And then Trump comes along and seems to drive the point home. What on Earth were we complaining about with Bush? we all think. Plainly, we didn't realize how good we had it, back then. We thought Bush was going to declare himself a dictator? What were we thinking? Bush isn't the one deploying unidentified federal agents on the streets of U.S. cities, arresting people without probable cause. 

Bush is instead out there penning surprisingly thoughtful and heartfelt pieces about the need to address systemic racism. Maybe we had everything wrong. Maybe we have gotten ourselves into a "boy who cried wolf"-type situation. We yelled "authoritarian" so loudly about now-seemingly innocuous portrait-painting Dubya, that we have deprived the word of meaning when confronted with the genuine article.

So... that's one way of looking at it. Another way, though—the one to which I increasingly incline—is to recognize all the ways in which Bush made Trump possible. The executive powers claimed by the Bush presidency, the newly-formed DHS, and the Ashcroft Justice Department created all the instruments that Trump is now using to extend and abuse his authority. 

Rather than seeing Bush's PATRIOT Act as a red herring, therefore—the threat that diverted us before the true menace to our democratic institutions could show its orange face—we should instead regard it as the spark at the end of a very long fuse that has taken years to detonate. 

Instead of saying, "Oh, the PATRIOT Act wasn't nearly the frontal assault to the pillars of our democratic order we thought it might be"; we should say that it was a deep-sea charge that exploded long ago (to borrow an image from Georges Bernanos), the ripples of which are only now disturbing the apparently placid surface of our political order. 

The light from a dying star may take eons to reach us ("Shine, perishing republic," as Robinson Jeffers once wrote), but the event has already long since taken place. The damage was already done; we just didn't see it. Beneath the wooden boards of our sturdy liberal democracy, the PATRIOT Act was gnawing away at the structural supports (to borrow an image now from Edna St. Vincent Millay), hollowing out our Constitutional rights like Swiss cheese. 

Admittedly, many of us —including me—have not thought much about the PATRIOT Act for some years. But that doesn't mean that its most dangerous provisions have not remained on the books, waiting to be invoked. And, in one particularly disturbing recent case, they were. 

Look to the nightmarish legal drama that has consumed the previous two decades of the life of Adham Hassoun (father and former Florida resident, who has many family members in the States), whom until late last month the Trump administration was detaining without charge, trial, or any due process under a never-before-invoked provision of the PATRIOT Act. 

Hassoun had originally been convicted and ordered to serve a 15-year prison sentence, under an aggressive prosecution strategy deployed by the Bush administration (more specifically, the Ashcroft Justice Department) to go after alleged acts of "material support" for terrorist activities. Under this strategy, acts of charitable giving that ended up in the hands of "mujahideen" fighters engaged in various armed conflicts around the world could be construed as a conspiracy to commit terrorism. 

Serious questions could be raised about the merits of this conviction. One might well ask: why was Hassoun in prison for sending funds to "mujahideen" in the 1990s, when the U.S. government was doing the same merely a few years previous? In what sense is aiding Chechen fighters the same thing as supporting Al Qaeda, unless one ascribes to a thoroughly-debunked theory of "jihadism" that conflates all struggles of Muslim minorities against central states as expressions of a single Salafist global conspiracy?

Regardless of what one thinks of Hassoun's actions or the justice of the original prosecution and conviction that put him behind bars, however, the point is that he did his time. He served his sentence, paid his debt to society (missing out on a considerable portion of his children's lives in the process), and therefore should have been promptly released. Instead, he then became entangled in the second great net of America's carceral state: the immigration bureaucracy.

When U.S. non-immigrant visitors and permanent residents commit certain crimes, they often face a kind of double jeopardy. After being convicted in the criminal justice system and having to serve out their sentence in U.S. prisons, they are then secondarily ordered removed from the country. If they cannot be promptly deported, however—because no country is willing to receive them—they fall into a dangerous legal grey area (a problem that often particularly afflicts Southeast Asian refugees who have lived in the U.S. for decades, and whose original governments will not receive them). 

Around the world, non-citizens often fall into a fatal zone of exception under the law, where they do not enjoy the same legal rights as other members of society, and states feel entitled to abuse their civil liberties and human rights. This is doubly true in the case of people like Hassoun, who have no other state to call home. A Palestinian man born to refugee parents in Lebanon, his natal country never recognized his right to citizenship, nor did his parents apply for formal refugee status. 

For this reason, we was stateless at the time of his planned deportation, and no foreign government was at first willing to take him in. 

What happens when the U.S. government has no legal right to detain a non-citizen any longer in criminal custody, but also cannot remove them to a different country? In the past, U.S. authorities have simply tried to detain people indefinitely in civil immigration custody—placing them into a kind of legal netherworld where they face no charges, have been convicted of no crime, cannot face their accusers, and yet are held against their will in prison-like confinement. 

The U.S. Supreme Court wisely ruled in a landmark 2001 case that such gulag-like practices are unconstitutional. For obvious reasons, indefinite detention violates Bill of Rights protections for due process, as well as the even more foundational legal right of habeas corpus. 

More importantly still, the high court found that these Constitutional rights apply to people regardless of their citizenship status, so long as they are under U.S. jurisdiction (this is due to the language of the Fourteenth Amendment which—as applied to the federal government under the doctrine of incorporation—prohibits "depriv[ing] any person of life, liberty, or property, without due process of law.")

Faced with this Supreme Court precedent, however, executive officials and right-wing members of Congress have sought to limit its impact, claiming that it doesn't apply to terrorism suspects or other "exceptional" groups. Several Senate Republicans have repeatedly introduced a dangerous bill that would provide a legislative work-around to the Court's ruling, ending the court's proposed cap of six-months for the maximum length of time a person could be held under these circumstances.

More to the point here, however, the Bush administration created two legal loopholes to allow it to detain people indefinitely in civil immigration confinement—one in the form of a federal regulation deliberately designed to skirt around the edges of the Supreme Court's ruling in Zadvydas; and another in a provision of the PATRIOT Act. It is both these provisions—never before invoked—that the Trump administration used to try to detain Hassoun without charge or trial—potentially for the rest of his life. 

Legally, thank God, this strategy did not succeed. Hassoun was eventually deported after another country offered to take him in, and courts found against the government after the fact. Crucially, however, they have not yet concluded as a legal matter that the indefinite detention regulation or the particular section of the PATRIOT Act the government invoked were unconstitutional. 

Here is where our image from Bernanos of the deep-sea charge seems particularly apt. These provisions of the law—established by Bush—detonated long ago. The damage to the legal infrastructure of Constitutional rights was already done. But it is only in the experiences of people without a state—the edge cases who will always be the first victims of an expanding authoritarianism—that we can see the first visible ripples of this underwater disturbance. 

Our complacency allowed us to permit dangerously broad powers to be written into law. And then, because it took decades for the full menace of that scope for authoritarianism to become visible, we concluded that nothing had been lost, no damage had been done. Yet we should have known, as Edna St. Vincent Millay once wrote, that all that time: "Moles [were] at work beneath us;/[...] The house has a roof; but the boards of its floor are/rotting, and hall upon hall/ The moles have built their palace beneath us, we have/ not far to fall."