In yesterday’s post I spoke about the qualitative change that has occurred in this country as a result of the passage of the legislation last week that took away almost all the rights on which a truly free society is built.

Some people may be consoling themselves that these drastic actions will be only taken against “other” people, non-US citizens, and that they themselves are safe. But Bruce Ackerman, a professor of law and political science at Yale and author of Before the Next Attack: Preserving Civil Liberties in an Age of Terrorism, writing in the September 28, 2006 issue of the Los Angeles Times warns us not to be so complacent:

Buried in the complex Senate compromise on detainee treatment is a real shocker, reaching far beyond the legal struggles about foreign terrorist suspects in the Guantanamo Bay fortress. The compromise legislation, which is racing toward the White House, authorizes the president to seize American citizens as enemy combatants, even if they have never left the United States. And once thrown into military prison, they cannot expect a trial by their peers or any other of the normal protections of the Bill of Rights.

This dangerous compromise not only authorizes the president to seize and hold terrorists who have fought against our troops “during an armed conflict,” it also allows him to seize anybody who has “purposefully and materially supported hostilities against the United States.” This grants the president enormous power over citizens and legal residents. They can be designated as enemy combatants if they have contributed money to a Middle Eastern charity, and they can be held indefinitely in a military prison.

Not to worry, say the bill’s defenders. The president can’t detain somebody who has given money innocently, just those who contributed to terrorists on purpose.

But other provisions of the bill call even this limitation into question. What is worse, if the federal courts support the president’s initial detention decision, ordinary Americans would be required to defend themselves before a military tribunal without the constitutional guarantees provided in criminal trials.

Legal residents who aren’t citizens are treated even more harshly. The bill entirely cuts off their access to federal habeas corpus, leaving them at the mercy of the president’s suspicions.

We are not dealing with hypothetical abuses. The president has already subjected a citizen to military confinement. Consider the case of Jose Padilla. A few months after 9/11, he was seized by the Bush administration as an “enemy combatant” upon his arrival at Chicago’s O’Hare International Airport. He was wearing civilian clothes and had no weapons. Despite his American citizenship, he was held for more than three years in a military brig, without any chance to challenge his detention before a military or civilian tribunal. After a federal appellate court upheld the president’s extraordinary action, the Supreme Court refused to hear the case, handing the administration’s lawyers a terrible precedent.

The new bill, if passed, would further entrench presidential power. At the very least, it would encourage the Supreme Court to draw an invidious distinction between citizens and legal residents. There are tens of millions of legal immigrants living among us, and the bill encourages the justices to uphold mass detentions without the semblance of judicial review.

This act provides a dramatic gauge of how far has this nation’s concepts of justice have sunk since the times when the constitution was first drafted (leaving aside for the moment the problem that those noble early concepts of justice did not extend to black people). For example, Thomas Jefferson said in his first inaugural address: “Freedom of the person under the protection of the habeas corpus I deem [one of the] essential principles of our government.”

Jefferson had little sympathy for those who would suspend these basic rights at the first sign of any trouble saying in a letter to James Madison that he felt that habeas corpus should be preserved even if there is an insurrection or rebellion within the country, which is a far, far, greater threat than anything faced today in the so-called war on terror. He pointed out the history of such suspensions which indicated that it was usually done for the consolidation of power by an authoritarian government rather than for genuine concerns about security, saying:

Why suspend the habeas corpus in insurrections and rebellions? The parties who may be arrested may be charged instantly with a well defined crime; of course, the judge will remand them. If the public safety requires that the government should have a man imprisoned on less probable testimony in those than in other emergencies, let him be taken and tried, retaken and retried, while the necessity continues, only giving him redress against the government for damages. Examine the history of England. See how few of the cases of the suspension of the habeas corpus law have been worthy of that suspension. They have been either real treasons, wherein the parties might as well have been charged at once, or sham plots, where it was shameful they should ever have been suspected. Yet for the few cases wherein the suspension of the habeas corpus has done real good, that operation is now become habitual and the minds of the nation almost prepared to live under its constant suspension.

It is a sign of how debased the political discussion has become in this country that if Jefferson has spoken such words today, he would be reviled as a wimp and a mollycoddler of Islamojihadifascists (or whatever the current demonizing term being used to make people cower in fear), as ‘not supporting the president’ by ‘giving him the tools he needs to fight terrorists.’
POST SCRIPT: It could be worse, I suppose

Cartoonist Tom Tomorrow sums up the current state of affairs.