Put aside all other issues for a moment, and ignore the trivialities that dominate the airwaves and what passes for national debate in this country. The Senate this week ratified a defense authorization bill containing an amendment cosponsored by Democratic Sen. Carl Levin and Republican Sen. John McCain that would empower the military to detain American citizens captured on U.S. soil indefinitely without civil process, in addition to expanding the post-9/11 Authorization to Use Military Force and making it harder to transfer detainees out of Guantánamo.
Ten years of the war on terror, decades of the war on drugs, and a century of growing government power in general, particularly in the presidency and various police authorities, have perhaps desensitized Americans to what is at stake here. As the proverbial frogs in the pot of water, we are accustomed to rising temperatures and so do not notice when our flesh begins to boil. Yet when the Senate overwhelmingly accepts the principle that the military should displace civilian courts even for citizens captured on American soil, it has adopted a standard of justice remarkably tyrannical even compared to America’s very rocky history.
In the Civil War, the Lincoln administration detained American citizens without trial. Parts of the country constituting the United States were actually battlegrounds, littered by many thousands of bodies. Congress formally suspended habeas corpus. This was a dramatic move that has been criticized to this day. Yet the Supreme Court ruled in Ex parte Milligan (1866) that even the suspension of habeas corpus did not preclude the federal court system from intervening in the military trial of U.S. citizens, and that such military commissions of U.S. citizens on U.S. soil were unconstitutional so long as the civil courts were operating. Neither Congress nor the president could overturn this constitutional protection, the Court found.
Ah, but those were quaint times. Defenders of the kind of despotic military law being proposed today often say that even citizens do not deserve due process if they are at war with their own country. This is 100% false, at least as far as the Constitution is concerned. Indeed, the founding document of this government requires additional due process to try someone for treason:
Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court
But this kind of talk seems awfully soft on terrorists, doesn’t it? It is not as though the framers of the Constitution had ever confronted a formidable foreign enemy. It’s only been ten years since 9/11. Of course, by the time the Constitution was ratified, the American Revolution had been over just six years, and in that war about one percent of the American population perished—the proportional equivalent of three million Americans today, or one thousand 9/11s.
Still, this is a new kind of war, as the majority of Senators clearly believe, including almost everyone from the supposed opposition party. An amendment to remove the Levin/McCain language was rejected 61 to 37. Only two Republicans—two!—Rand Paul and Mark Kirk—voted against this blatantly unconstitutional measure for military dictatorship. If anything demonstrates that the leaders of this party claiming to stand for liberty and the rule of law are in fact almost unanimously and adamantly opposed to these principles in the most important imaginable areas, this demonstrates it beyond a reasonable doubt. Indeed, the fact that John McCain, characterized in the 2008 presidential election as a “moderate” among Republicans on questions like torture, backed this bill, should reveal beyond question that had things gone differently in that election, we would not have likely gotten any sort of reprieve from the steady descent toward total tyranny that has characterized the Obama years.
And indeed Obama, for his part, offers no true alternative to the McCain-Republican line of the war on terror. The substance of this bill is essentially in line with everything Obama has done, and, for that matter, what Bush did for eight years, although without formal Congressional codification. Glenn Greenwald notes that the horrifying reality portended in this legislation “more or less describes the status quo. Military custody for accused Terrorists is already a staple of the Obama administration.” Greenwald also helpfully explains that the media’s coverage of the Obama White House’s indications that it might veto this legislation has tended to mischaracterize the situation:
[W]ith a few exceptions, the objections raised by the White House are not grounded in substantive problems with these powers, but rather in the argument that such matters are for the Executive Branch, not the Congress, to decide. In other words, the White House’s objections are grounded in broad theories of Executive Power. They are not arguing: it is wrong to deny accused Terrorists a trial. Instead they insist: whether an accused Terrorist is put in military detention rather than civilian custody is for the President alone to decide.
The United States is not a free country, not even close. There are plenty of worse places in the world, for sure, but a key characteristic of something resembling a free society that adheres to something resembling a rule of law is that the executive branch cannot use the military to indefinitely detain people, regardless of citizenship or location, indefinitely without ever explaining itself to a court or affording the detainee some process to challenge his detention. Even with such protections, a free country requires more—a functioning legal system that respects property rights and free exchange; civil liberties including free speech and freedom from lawless search and seizure; the freedom of people to control their own bodies, homes, and businesses; protections against involuntary servitude; and a general respect for freedom of association. In all of these areas, America has lost some of its liberties, and they all must be restored if the country is ever going to deserve the label of a “free country.”
Yet one freedom without which the whole concept of liberty is a total mirage, befitting of a black comedy and best affirmed only in Orwellian doublespeak, is the freedom from unjust, lawless, indefinite imprisonment. Since 9/11, the United States has abandoned this principle in many respects. Predictably, it was war—threat of a foreign enemy—that allowed this fundamental freedom to be destroyed, initially in large part for foreigners whose rights and dignity were never even given a significant consideration as thousands were rounded up, many tortured, many killed, many detained to this day for no crime at all but being in the wrong place at the wrong time, whether seized by Pakistani war lords in exchange for American dollars or declared terrorists by a presidential military legal system several of whose own military prosecutors have resigned in disgust with the blatant injustice of the whole enterprise.
American citizenship doesn’t guarantee due process either, of course—it did not for Jose Padilla for almost four years of detention, nor for the citizens currently targeted for assassination by the Nobel Prize-winning Constitutional law professor sitting in the Oval Office. Today we are on the verge of seeing the last bits of this retreat from civilized standards of justice codified into law. Our political culture has degenerated so much that should the courts strike down these developments, I would not be surprised to see the court decisions ignored altogether or, alternatively, a successful effort to amend the Constitution and finally give the president and his military full dictatorial power over the United States.
And for what, may I ask, did Americans finally relinquish this last claim to living under a qualitatively different kind of government from the absolutist monarchies or third-rate communist despotisms that now dot our history books as artifacts of political failure and vast human misery? Oh, that’s right. Because the terrorists hate us for our freedom.