THE BLOG
06/14/2007 11:25 am ET Updated May 25, 2011

Land of Shadows

Is the BananaRepublic on its way out? I don't mean just the elected officials like Bush and Cheney in their lame-duck days. I mean their
modus operandi or, if you like, their institutional style and
substance.

Not to stretch the point, but "there is no crueller tyranny than the
one exercised in the shadow of the law, and with the colours of
justice." That's Montesquieu, via Clive James, speaking about the
Roman emperor Tiberius. "Montesquieu was impressed by the efficiency
Tiberius brought to the business of perverting the judicial system,"
James writes.

Jess Bravin, reporting in The Wall Street Journal, gives me hope our
boys are less efficient. He writes that the "effort to create a
separate legal system for the war on terrorism may be foundering."

The latest sign, Bravin notes, was Monday's federal appeals court
ruling that it's illegal to hold a U.S. resident arrested in this
country in indefinite military detention without charging him with a
crime simply because the president has declared him an enemy
combatant. He writes:

Skeptical civilian and military courts, using language
both sweeping and technical, have blocked the government's contention
that to fight terrorism the president can invoke military powers that
supersede traditional legal protections. None of these setbacks has
resulted in the immediate release of prisoners, but they raise
questions about the long-term viability of the legal
regime.

Bravin is not alone in his analysis. Others -- law professor Jonathan
Turley on "Countdown," for one -- have commented pretty much likewise,
which is heartening. And yet ... it staggers the mind to realize what
we've come to.

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