The Man Who Would Give Away the Bill of Rights
In a post at The Corner that is dripping with sarcasm, Andrew McCarthy writes:
So the attorney general, while he was in private practice at a firm that openly bragged about its “pro bono” representation of numerous Gitmo detainees, chose during our war with al-Qaeda to file a brief on behalf of an al-Qaeda operative who tried to kill lots of Americans. So he argued that such people ought to be treated as criminal defendants swaddled in the Bill of Rights rather than enemy combatants detained for interrogation and war-crimes commissions. So what?
It is telling that Mr. McCarthy invokes swaddling as a metaphor for detainees who seek relief under the Bill of Rights — as if merely extending its protections is akin to treating accused people as delicately as one treats infants, when in fact the Bill of Rights is a document whose guarantees were put in place because the Founding generation believed a federal government that failed to respect them would be guilty of tyrannical behavior.
Mr. McCarthy’s post is particularly galling because the al-Qaeda operative Attorney General Eric Holder wanted to protect under the Bill of Rights was Jose Padilla, an American citizen. In other words, when Mr. McCarthy sneers at the idea of swaddling “such people” in the Bill of Rights, the “people” in question are American citizens accused of terrorism. Were it possible to poll folks on both sides of the Bill of Rights debate, from James Madison to George Mason to Thomas Jefferson to George Washington to Patrick Henry, I’m confident they’d all agree that the President of the United States should not possess the unchecked power to strip an American citizen of his constitutional rights by declaring him an enemy of the nation in an opaque process that isn’t even subject to judicial review. As I’ve written before, the Framers of the Constitution even included specific provisions for American citizens who commit 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.
In Mr. McCarthy’s opinion, Jose Padilla — and by extension all American citizens — should be deemed guilty of levying War against the United States based on the say so of whoever happens to be president. It is a damn good thing that folks like Eric Holder spoke up on behalf of Mr. Padilla in order to assure that dangerous, unconstitutional precedent didn’t become American law. If Mr. McCarthy’s view had prevailed instead, every American citizen, you and I included, would have less recourse to the Bill of Rights as protection against folks in future federal government posts who were abusing their power.
America should go to extra lengths to show the word we fight fair, are fair, and defend principles regardless of how hard they are too defend.
I wonder why there is not more outrage over drone attacks in Pakistan? That is if the reports of civilian deaths are true — Furthermore, do we have the right to invade a sovereign country’s airspace if war hasn’t been declared against that country? I know this is off toic, but it seems more worthy of outrage.
— mike farmer · Mar 12, 03:39 AM · #
I couldn’t understand certain parts of this post, but I assume I only need to learn a bit more regarding this, because it certainly sounds interesting and kind of though-proviking! By the way, how did you first get started with this?
— true religion jeans · Mar 12, 09:15 AM · #
Mike, you’re right that at the very least the whole drone program demands closer scrutiny. A few possible reasons why it hasn’t:
i. The cost-benefit calculus is closer. The drone program can show concrete results such as “Killed bad guys X, Y, and Z.” The benefits of torture and indefinite detention are much more speculative. Even people who claim to hew exclusively to deontelogical principles usually have a pragmatic calculus doing some of the work in their arguments. More obvious benefits makes it harder to get up on the bully pulpit and unleash a righteously uncompromising stand on principle.
ii. It’s farther away. American’s never really care what’s going on in far away places with funny names. Much of the torture and detention stuff has happened right here in the western hemisphere.
iii. It’s not clear what the alternative would be. This relates to ii. If we were to stop drone attacks today, it’s not like that would be the end of our activities in afghanistan and pakistan. It would result in stepped up efforts to kill these dudes through other means, and it isn’t obvious that we would end up in a less objectionable place as a result of the change.
iv. It’s bipartisan. Bush started it, Obama stepped it up. Neither side has anything to gain by slinging mud on the issue.
— salacious · Mar 12, 01:29 PM · #
Salcacious, yes, you are no doubt right — I’m looking at it from a moral position, which is weak, I know. I’m beginning to wonder if there are any moral positions without corresponding political positions. That’s why I take a lot of these arguments with a grain of salt.
— mike farmer · Mar 12, 01:42 PM · #
Preach it, Brother Conor.
— John Schwenkler · Mar 12, 02:36 PM · #
Mr. McCarthy seems to forget that the United States ratified the Geneva Conventions of 1949 as a high contracting party. That means that United States federal law (see article six of the United States Constitution) obliges the United States to provide fair trails with appropriate safeguards. The convention explicitly prohibits, inter alia, unfair trials, specifically “the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.” As I have written before in this context, the Geneva Convention simply does not provide a lot of wiggle room. And whatever anyone’s subjective feelings on the subject, the United States constitution spells out the status of ratified treaties (including the Geneva convention).
It probably bears mentioning that no matter how often Mr. McCarthy uses the term “war”, the United States Congress has not in fact declared war on anyone, and no country I know of has formally declared war on the United States. Calling a situation war does not make it war, and neither the risks nor the magnitude of American civilian casualties involve justify the use of the word war. The social upheaval caused by a surge in the imports of cocaine to the United States in the mid eighties to the mid nineties killed many more Americans than the operations of al Qaeda, and the United States government dealt with that turmoil without suspending civil liberties. I believe we must at some point address the magnitude of the actual threat if we want to assess Mr. McCarthy’s calls to suspend judicial protection of American liberties, ignore the laws, and punish any lawyers who successfully petition the courts to invalidate these measures. Certainly, the threat falls short of the standards set by the US constitution, which calls for protection of civil liberties except in cases of invasion or insurrection: enemy troops or murderous mobs in the streets. But the risks posed by al Qaeda also fall well short of hazards the republic has faced in its past, most notably the time of Joseph McCarthy, when Americans decided they could cope with Stalin, who had a million troops under arms and nuclear weapons, without giving up their freedoms.
@Mike Farmer: as one obvious difference, the rules for persons at large and engaged in hostile operations differ from those for detainees of any kind. The rules grant a fairly wide latitude for attacking hostile forces actively engaged in operations; the humanitarian standards of the Geneva conventions, and of international humanitarian law before that, come into play when soldiers or other forces surrender. From a strictly legal point of view, considerable military precedent allows for aerial bombardment, and if a neutral country cannot or will not prevent its territory from sheltering hostile forces, a belligerent has some latitude to take action against those forces on its own. Forces involved in aerial warfare do have a legal obligation to avoid civilian casualties, which under current circumstances probably means they should never shoot any vehicle or person not positively identified as hostile. From an ethical point of view, of course, in the long run we ought to have, indeed we need to have, the courage to end war and violence as means to resolve our differences. But the drone wars in Pakistan raise quite different issues from the legal debates over the treatment and representation of detainees.
— John Spragge · Mar 12, 03:17 PM · #
“But the drone wars in Pakistan raise quite different issues from the legal debates over the treatment and representation of detainees.”
Well, yes, desd people have no need for law, and they need not be detained.
If we send drones in to kill all suspects, there is no need to determine guilt. I have a feeling, due to the difficulty of capturing terrorists, since they’ve gone into hiding in rough terrain, we’re bombing with drones and letting God sort them out.
— mike farmer · Mar 12, 05:55 PM · #
dead, not desd.
— mike farmer · Mar 12, 05:56 PM · #
“Well, yes, desd people have no need for law, and they need not be detained.
If we send drones in to kill all suspects, there is no need to determine guilt.”
Let’s not get so caught up in the refusal of some to recognize the role that law enforcement has to play in combating terrorism that we become blind to the fact that military force also plays a part. Asymmetrical warfare is still warfare in practice, though since our worthless Congress has refused to get off its ass and actually declare war, I’m not sure what legality applies to the drone strikes.
Mike
— MBunge · Mar 12, 06:52 PM · #
We’re not fighting a war.
— mike farmer · Mar 13, 01:44 AM · #
McCarthy is an ass.
That said, I do think we should talk categories: citizen versus non-citizen, captured here or abroad, by us or another, in a combat zone or non-combat zone. Citizen captured here gets Bill of Rights protection by default. Citizen captured elsewhere by us, probably. Non-citizen captured abroad in a combat zone, definitely not. Non-citizen captured abroad in a non-combat zone, probably not. Etc etc. Might help clarify the issue to think about it like this.
— John Aristides · Mar 13, 01:56 AM · #