The Tyranny of the Detainee Bill

How does this bill jibe with limited government and constitutional originalism? How can a conservative parrot the shrill nonsense that suspending habeas corpus is somehow vital to protect national security?
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It's hard to know what's most distressing about the Military Commissions Bill, which is the official name of the legislation just passed in the Senate and now heading to the President's desk so he can formally assign himself, among other powers, an unprecedented, standing authority to detain people, citizens and non-citizens alike, at home and abroad, indefinitely and without charge.

Well, there's that. And the fact that for the first time in U.S. history, Congress will allow suspects to be convicted and executed based on coerced confessions, i.e. torture, if that torture happened before the end of last year. And then there's the gutless Congress, the laziest since the Do-Nothings of 1948, who I guess decided to finally give up the ghost and lift their rubber stamps for a final power giveaway to Bush's ever-more-imperial Presidency. Remember, Bush's helpful "clarification" legislation came because the Supreme Court had the temerity to suggest in its Hamdi decision that the President at least needed approval from Congress to lock people up forever.

So that's what they gave him. Never mind that the habeaspetition safeguards the most hallowed judicial role in our constitutional democracy -- ensuring that no man is imprisoned unlawfully. It's a right at least 800 years old, since the Magna Carta codified what was already a foundation of common law. The universal application of habeas corpus was a principle grievance of the Founding Fathers, which is why its bold pronouncement in the Constitution was thought by Alexander Hamilton, along with the outlawing of nobility, to offer "perhaps greater securities to liberty and republicanism than any [other the Constitution] contains." As Hamilton also noted, "the practice of arbitrary imprisonments, have been, in all ages, the favorite and most formidable instruments of tyranny," which is why habeas stands at the center of our venerated system of checks and balances.

Or stood anyway. Because who needs checks and balances when you're Bush? The same day the Senate was gearing up to abandon its responsibilities, enforcer Antonio Gonzales, President Bush's Frank Nitti, showed up at the Georgetown Judiciary Congress to lecture the attending judges that they ought not meddle with Presidential power in the first place. The courts shouldn't "superintend military and foreign policy decisions, especially during war time," he said. If it wasn't for that uppity Supreme Court, we wouldn't even have to go to Congress. "The Supreme Court," he added with another shot over the bow, "has long recognized, moreover, the executive's pre-eminent role in foreign affairs." And don't think about striking parts of this bill when it shows up at the Supreme Court. Fuck with the boy king again and maybe we'll strong-arm congress to disband the judiciary altogether.

What's most bizarre is the way conservatives have rushed to the President's defense, despite that his arrogation of power goes against all principles of conservatism. To re-iterate: this bill gives the President alone the ability to decide if a person can be locked up without recourse to due process of law. How exactly does that jibe with limited government and all that constitutional originalism? How can a conservative parrot the shrill nonsense that suspending habeas corpus is somehow vital to protect national security? What is with these people?

What's with them is -- surprise! -- politics. Less important than the law itself is the "tough on terror" heuristics and false sloganeering that surround it, just in time, of course, for the final stretch of a mid-term election cycle that the Republicans are in danger of losing. Finally, some leverage; Republicans dared Democrats of voting against a bill that they could be beaten over the head with in the coming onslaught of attack ads. How else can Republicans play the national security card when the NIE has made it clearer than ever that Bush's "staying the course" is leading us off a cliff. Back a wounded animal into a corner and it starts snarling. The GOP is gearing up for a mass round of duplicity in the style of the campaign against Max Cleland. Exemplary of the coming wave is Peter Roskam, who last week accused Tammy Duckworth of being a "cut-and-run" Democrat, a confusing charge to Ms. Duckworth, who lost both her legs fighting the war in Iraq that Roskam and the rest of his part are so in love with. Bush's failure in Iraq has cost the GOP their national security edge, and their grasping for any way to fool the public into getting it back. As much as it was a embarrassing legal travesty and an assault on freedom, the detainee bill was a setup.

And it worked. Notice the language already coming from the right. Speaker J. Dennis Hastert's written statement after the House vote on Wednesday accused Nancy Pelosi "and her Democrat colleagues" of "vot[ing] today in favor of MORE rights for terrorists." (This from a guy who knowingly allowed an apparent sexual predator to remain chair of the House Missing and Exploited Children Caucus.) Elsewhere, Hastert said the Democratic plan would "coddle" -- oh, how they love to accuse others of coddling -- "the same terrorists who plan to harm innocent Americans and their freedom worldwide."

Does anyone else sent latent fascism here? There's a tradition of freedom enshrined in the Constitution. Some Democrats stood up for it by opposing this bill. That tradition does not give terrorists rights, it gives people accused of being terrorists rights. Listen to Hastert and company's choice of words: they assume everyone's a terrorist already. They don't care who's innocent or not. Isn't that the tyranny the Founding Fathers were so afraid of?

Surely, there are terrorists in U.S. custody and they deserve justice, delivered openly and fairly. But what about those who aren't? Like Maher Arar, whom the United States sent to Syria for interrogation and torture even after the Canadian government told American officials he was not a terrorist. Arar was released after almost a year in prison with no way to even argue his innocence.

And that's the point: no one knows the guilt or innocence of people hidden in secret jails without recourse to law. All the bill's opponents are saying is that everyone deserves the right to defend themselves. For the Republicans, I guess, guilty without the ability to prove oneself innocent is good enough.

But what about the terrorists? say the right-wingers. They don't treat our prisoners fairly! They don't care about our freedoms! True, but: so what? Since when is our standard of moral comparison a bunch of bloodthirsty killers? That's the worst "Jimmy jumped off the cliff first" excuse in history. Does that mean we had the right to used slave labor to fight the Nazis in World War II? The debate is not about what anyone else does but us.

Sorry, but freedom isn't selective. You can't wave the flag around and simultaneously undermine the principles it symbolizes. The "cause of freedom" Bush loves to invoke with those well-practiced steely eyes, the "freedom the troops are fighting for," all the freedom on Walter Jones' fries -- all that is what Bush wants to destroy. There's no defense of this bill. Suspending habeas will not help us defend the country, but it will slowly undermine the country we hope to defend.

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