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Morsi’s Death Sentence Reminds Us of Our System

Mohamed Morsi

The death penalty just meted out to Egyptian President Mohamed Morsi provides a perfect demonstration of the value to a tyrannical regime of having a federal judiciary that is subordinate to the nation’s national-security establishment. In that way, when the military wishes to kill political opponents, it can use the charade of a judicial trial as a cover for what is nothing more than outright murder.

It would be difficult to find a better example of tyranny than the U.S.-supported military dictatorship that has ruled Egypt for decades. In many ways, it mirrors the brutal U.S.-supported military dictatorship of Augusto Pinochet in Chile. No legislature. No independent judiciary. No due process of law. And lots of round-ups, kidnappings, torture, and execution of people who protest or who just hold the “wrong” beliefs.

What was the specific crime for which Morsi has received the death penalty? His crime was that he escaped from prison during the Arab Spring uprising against this same brutal military dictatorship, when it was headed was military strongman Hosni Mubarak.

Did you get that? Morsi escaped from prison run by a brutal military dictatorship and so now he must die for his crime.

You remember the Arab Spring, right? That was when U.S. officials and the U.S. mainstream press were pretending to go ga-ga over the movement toward democracy in Egypt, which ultimately resulted in Morsi’s election.

Not anymore. Once Egypt’s military dictatorship ousted Morsi from office and began killing people who protested its tyranny, U.S. officials went silent and so did the U.S. mainstream press. No more ga-ga over democracy.

In fact, it’s worse than that. After providing billions of dollars of armaments and military training to the Egyptian military brutes, which has enabled them to maintain their tyrannical hold on power for decades, the U.S. government is now refortifying the military dictatorship with an additional billion-dollar infusion of weaponry. That should help resupply the bullets they’ve used to kill protestors and maybe even repaint and refurbish the torture chambers after considerable use.

The Morsi sentence reminds us of another similarity between the U.S. and Egyptian systems — the subordination of the federal judiciary to the U.S. national-security state apparatus, which consists of the Pentagon, the CIA, and the NSA.

Ever since the advent of the national-security state after World War II, the Supreme Court made it clear that it would not interfere with this new branch of government. The Court called its deference to the Pentagon and the CIA the “political question doctrine,” a term that is not found in the Constitution and that was created out of whole cloth by the Court.

Under this doctrine, the Court held that it could not declare overseas national-security state operations unconstitutional because they involved “political questions” — i.e., questions too complex for the Court to deal with. The notion was that the Court simply lacked the foreign-policy expertise to second-guess what the military and the CIA were doing overseas.

What a crock. Aren’t all the issues that arise before the Court “political questions”? Isn’t Obamacare a political question? Isn’t same-sex marriage a “political question”? How does the Court have the expertise to rule on those issues?

The real reason that the Supreme Court has subordinated itself to the national-security state apparatus is the same reason that the federal courts in Egypt have subordinated themselves to the Egyptian rulers. The courts in both countries know that an all-powerful military and intelligence establishment is ultimately in charge and there is nothing that the courts can do about it. So, rather than prove the impotence of the judiciary, the Supreme Court crafted the ridiculous “political question” rationale for refusing to do its job by examining the constitutionality of national-security state operations.

Consider, for example, the Korean and Vietnam Wars. The Court said that it didn’t have to have the political expertise to determine whether it was a good idea or not to get involved in land wars in Asia.

Consider Guantanamo Bay. The Pentagon and the CIA intended their prison camp to be a Constitution-free zone, one where the Supreme Court could not interfere with its operations.
But that wasn’t what the Court was being called to do. It was being called to determine whether the wars were constitutional. Certainly the Court has an expertise in constitutional law, right?

The Constitution is clear: Before the president can legally wage war, he must first secure a declaration of war from Congress.

Thus, all the Supreme Court had to do, when cases questioning the wars came before it, was make a simple determination: Are the wars constitutional or not? That is, did they have the required congressional declaration of war?

The answer is, obviously, no. But if the Court had ruled that way, what are the chances that the president, the Pentagon, and the CIA would have complied with the Court’s judgment? There was no chance whatsoever, especially since the Pentagon and the CIA viewed such wars as necessary to protect “national security.” They would never have voluntarily complied with a ruling of unconstitutionality, and the Supreme Court knew that they would never have voluntarily complied.

So, how would the Court have enforced its judgment? By sending a team of U.S. Marshals to Korea and Vietnam to bring hundreds of thousands of soldiers home by force?

As the military and the CIA quickly grew in power within the federal governmental structure, the Supreme Court quickly recognized that there was a new sheriff in town — the national-security establishment — and that it was much more powerful than the other three branches of government.

What’s different about the U.S. system, as compared to the Egyptian system, is described in Michael J. Glennon’s excellent book National Security and Double Government, where the author points out that while the real power within the federal government is now centered in the national-security establishment, the military and the CIA permit the president, Congress, and Supreme Court to maintain the same aura of constitutional authority that existed before the national-security apparatus was grafted onto America’s federal governmental structure. In that way, the American people can continue to think that their governmental structure is the same as it always has been.

Consider Guantanamo Bay. The Pentagon and the CIA intended their prison camp to be a Constitution-free zone, one where the Supreme Court could not interfere with its operations. When the Supreme Court held that the Constitution applied and that the U.S. federal judiciary had jurisdiction over the area, the military and the CIA went along with the judgment in order to maintain the same old charade.

What would a truly independent Supreme Court have done with Guantanamo? It would have ordered it shut down immediately and then proceeded to enforce its order. After all, where in the Constitution does it grant the military and the CIA to maintain a prison camp and torture center for criminal defendants? Indeed, where does the Constitution grant the national-security branch of the federal government the power to organize and operate a judicial system for the prosecution of terrorism cases that runs in competition with the federal court system established by the Constitution?

But that’s not what happened. After establishing the aura of jurisdiction, the Supreme Court permitted Guantanamo Bay to continue operating. Today, the Gitmo prison camp and “judicial center” continue to remain in existence, with prisoners still being held there without trial despite the passage of more than a decade. Hey, at least Morsi got a trial, even if it was kangaroo in nature.

Guantanamo is a perfect demonstration of Glennon’s point — maintain the façade that the president, Congress, and judiciary are in charge when, in actuality, it’s the Pentagon, the CIA, and the NSA that are in charge.

That’s what all too many Americans just don’t want to face — that the adoption of a national-security establishment fundamentally altered America’s governmental structure, so that it operates much like the U.S.-supported totalitarian system in Egypt,  without any interference, of course, by the U.S. federal judiciary.

Jacob G. Hornberger is founder and president of The Future of Freedom Foundation.


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