The PATRIOT Act and executive-branch decrees have put paid to habeas corpus. The government can pick up anyone it wishes and hold them as long as it wishes without evidence or trial. The government can torture those so detained if it wishes, or murder them and say it was a suicide. Saddam Hussein may have indulged in these practices in a more thoroughgoing way than the U.S. Homeland Security State has to date, but there are no essential differences in the police-state powers.

While granting an element of truth, readers may see rhetorical overstatement in these words. This is because they believe, mistakenly, that the Supreme Court reined in the government in its rulings last June 28 on permitted treatment of “enemy combatants.” However, as Harvey Silverglate has pointed out, this is not the case.

Silverglate’s analysis shows that the Supreme Court’s rulings “preserve the look and feel of liberty while sacrificing its substance.” The rulings left the government with enough flexibility to prevail. One ruling created for the government a flexible due process standard invoking, in the Court’s words, “the exigencies of the circumstances” and creating “a presumption in favor of the Government’s evidence.” Silverglate notes that this ruling overthrows a defendant’s presumption of innocence that formerly could be overcome only by evidence proving guilt beyond reasonable doubt.

Another of the Supreme Court’s rulings supported the government’s position that a U.S. citizen can be declared an enemy combatant and held without charge. Justice O’Connor found support for the demise of habeas corpus in the Authorization for the Use of Military Force passed by Congress after the Sept. 11 attacks.

Defenders of the new American police state emphasize that the government’s new powers only apply to terrorists. This is disingenuous. The government decides who is a terrorist, and it does not need to present evidence to back its decision. The person on whom the arbitrary decision falls can be held indefinitely. This is a return to the pre-Magna Carta practice of executive arrest. ~Paul Craig Roberts

Mr. Roberts is entirely correct. I will simply add that anyone who would have ever trusted in the Supreme Court to rein in federal abuses of power must also trust a pedophile with his children. That bastion of neocon deceit (I don’t use that term lightly), OpinionJournal.com, picked up on the loopholes the very next day after the Supreme Court ruling, June 29:

Yes, Justice O’Connor wrote that “a state of war is not a blank check for the president when it comes to the rights of the nation’s citizens.” But she also outlined the extraordinary deference that must be given the executive branch.

“The Constitution would not be offended,” she wrote, “by a presumption in favor of the Government’s evidence, so long as that presumption remained a rebuttable one and fair opportunity for rebuttal were provided.” And “once the Government puts forward credible evidence that the habeas petitioner meets the enemy-combatant criteria, the onus could shift to the petitioner to rebut that evidence with more persuasive evidence.”

In short, the burden is on the petitioner in these cases to prove that the government’s designation is wrong. Just to be sure the ACLU gets the point, Justice O’Connor added that “the full protections that accompany challenges to detentions in other settings may prove unworkable and inappropriate in the enemy-combatant setting.” ~OpinionJournal.com

The burden is on the petitioner! Spoken like a true statist, and backed up by one of the sorrier excuses for a Supreme Court justice of recent decades. This idea annihilates any conception that an American citizen (as it was citizens who were under discussion) is innocent until proven guilty. The Founders would have collapsed from shock to hear Americans claim that it is the citizen who has the burden to prove the government wrong. Then again, maybe they wouldn’t–they would recognise in that statement the fruition of a corrupt and decadent people who deserve to be dominated by pathetic, insipid men.

Amazing–the suspect must disprove the government’s unproven (and sometimes unrevealed) case against him! Kafka would enjoy the absurdity. As if it were beyond the government’s power to incarcerate someone incommunicado, as they did with Jose Padilla, without counsel and without any legal recourse for months while the evidence might be fabricated, planted or otherwise set up by the government. From the very first, the circular reasoning of the despot’s lackeys has been consistent. The government has charged him, so he must have done something; how do we know that he deserves to be treated in this way? Well, because the government has leveled very “serious” charges against him, and no one would really advocate giving a terrorist the rights of due process. How do we know he’s a terrorist? Well, they’ve charged him as one, haven’t they? Trust the government. When has it ever steered you wrong? I suppose the greater their abuse and the more outrageous the charge, the more seriously we are supposed to take it.

What chance does one man or a few men stand when faced with the overwhelming array of agencies that can be used to trap him? Giving him a hearing at some point will not change the ridiculous imbalance of power between the state and the individual. Unless it is the government that must prove its case, every person in America is a slave waiting to be put in chains–he might as well be in chains, for all the legal guarantees he has against unlawful arrest, search or punishment. The only thing that keeps any one of us average Americans out of Mr. Bush’s gulag is the fact that we have become well and truly politically irrelevant to his exercise of power. If ‘necessity’ for the incarceration of any one of us arose, don’t doubt that he and his lackeys would put you away without so much as blinking.