Thursday October 23rd, 2014, 4:00 am (EDT)

Michael E. Tigar

The National Security State

The End of Separation of Powers

On March 11, 2014, Senator Dianne Feinstein went to the U.S. Senate floor to announce that the CIA had sought to sabotage a Senate Intelligence Committee investigation of torture and unlawful detention.… Already, government lawyers had convinced courts that there should be no judicial review of torture and unlawful detention. Such review, it was argued, was beyond the competence of judges, and the executive branch of government needed unfettered discretion to deal with national security threats.… The net result is that the CIA, the NSA, and all the other executive branch agencies engaged in surveillance, detention, torture, rendition of suspects, and even targeted killings by drone strike have claimed immunity from accountability by either of the two other branches—legislative and judicial. What they have done, why they have done it, and why their actions are or are not lawful—all of this has retreated behind a wall of secrecy. The claim made by government lawyers that there has been and will be legislative oversight turns out to be false.… | more |

The Reichstag Fire Trial, 1933-2008: The Production of Law and History

In the opening decade of the twentieth century the German national state united the great majority of the German speaking population of Europe, excluding only those in Switzerland and the Austro-Hungarian Empire, and was among the leading states of the world. It boasted technologically advanced industry, among the highest per capita GDP, and the second largest army and third largest navy in the world. Germany was at peace, save for minor military operations against disobedient natives in Southwest Africa. It was a state that was among world leaders in providing basic social insurance, yet held sacred private property and the rule of law, except only in strictly prescribed areas of national security. In the opening decade of the twenty-first century the German national state unites the great majority of the German speaking population of Europe, excepting only those in Switzerland and Austria, its industry is technologically advanced and its per capita GDP high. Its military budget is the sixth largest in the world, and it is at peace, save for minor military operations against disobedient natives in Afghanistan. Despite cutbacks, few states in the world have better provision of basic social insurance, and Germany today prides itself on holding private property to be sacred and on its adherence to the rule of law, except for a few strictly prescribed areas of national security. In the fourth and fifth decades of the twentieth century the German national state committed crimes universally agreed to be the most horrendous in human history.… | more |

2: A System of Wholesale Denial of Rights

As in the past, Americans owe Jean-Claude Paye a debt of gratitude. From his position, as a sociologist in Brussels, he has proven that he can see what is happening in George Bush’s and Dick Cheney’s America, more clearly perhaps than many who live in the United States.…As Paye notes, there are two important aspects to the regime created by the Detainee Treatment Act of 2005 (DTA) and the Military Commissions Act of 2006 (MCA). The MCA recognizes a distinction between “enemy combatants” who are citizens of the United States and those who are aliens. Alien enemy combatants are, as Paye notes, subjected entirely to the regime of military commissions and denied access to civil courts except under limited circumstances. Citizen enemy combatants have access to civil courts, but find their rights constricted in other ways. The alien-citizen distinction in the MCA is a congressional response to the Supreme Court’s decision in Hamdan v. Rumsfeld, in which a five-justice majority held that the president did not have the power to strip citizens and aliens alike of their right of access to civil courts and to the writ of habeas corpus. The Court invited the president to return to Congress to validate his claims of power, and Congress obligingly did so, thus proving that there are few persons in the elected leadership willing to raise a voice against the imperial powers of which Paye writes.… | more |

The Twilight of Personal Liberty: Introduction to ‘A Permanent State of Emergency’

“The law is a mask that the state puts on when it wants to commit some indecency upon the oppressed.” I put these words into the mouth of a character in my play “Haymarket: Whose Name the Few Still Say with Tears.” Jean-Claude Paye has once again done us a service by showing how those words can come true. In theory, the bourgeois democratic state, as defined in the American constitution, was to operate under two basic principles. The first of these was separation of powers. Legislative and executive action would be held to a standard of legality by the action of unelected and therefore presumably independent judges. The second principle, elaborated more fully in the Bill of Rights, is that certain invasions of individual personal liberty are forbidden, and that the judges will provide a remedy against those who commit such invasions… | more |

Universal Rights and Wrongs

Roper v. Simmons, Torture and Judge Posner

The title of a talk should arouse curiosity and even skepticism. The title must give the speaker enough leeway to change the content at will. After all, I chose this title with only a vague idea of what I might actually say. Oh, I knew then and know now the subjects I will discuss. I have studied, written and practiced about them for more than forty years … | more |

Terrorism and Human Rights

The idea of terror comes to our tradition in images of fear. As the Psalmist wrote: … | more |

Lawyers, Jails, and the Law’s Fake Bargains

Assume that Canada and the Western European countries have about the right number of people in jail. Assume that the social problem of crime is not terribly different in those countries than in the United States. Understand that our incarceration rate is five to eight times that of those other countries. If these assumptions, and this understanding, are even nearly valid, 80 percent of the people in American jails should not be there… | more |

Law and the Rise of Capitalism

Law and the Rise of Capitalism

Against a backdrop of seven hundred years of bourgeois struggle, eminent lawyer and educator, Michael E. Tigar, develops a Marxist theory of law and jurisprudence based upon the Western experience. This well-researched and documented study traces the role of law and lawyers in the European bourgeoisie’s conquest of power-the first such history in the English language-and in the process, contradicts the analyses of such major figures as R.H. Tawney and Max Weber. Using a wide range of primary sources, Tigar demonstrates that the legal theory of the insurgent bourgeoisie predated the Protestant Reformation and was a major ideological ingredient of the bourgeois revolution.… | more |

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