I generally don't get worked up by the memes that fly back and forth between various political blogs. However, one of late is starting to irritate me. I have seen it all over the place on conservative blogs, but I will quote from James Taranto because I saw it on Best of the Web most recently:
Related to the terrorism-is-no-big-threat claim is the argument that American lives are less important than the civil liberties of terrorists.
Its not the lives vs. liberties part that works me up -- there probably is a real trade-off in there somewhere. What irks me is portraying concerns about the Patriot Act, indefinite detentions without trial, and eavesdropping outside of the normal separation of powers checks and balances as "concern for the civil liberties of terrorists".
I am sure that there is a name for this kind of semantic trick, though I can't remember it, but I will say its bush league, right out of high school debate. You could just as easily stump for repeal of the fourth amendment because it is only concerned with the "civil liberties of criminals".
No one except a few crazies cares much for the civil rights of convicted criminals and terrorists. After all, what could be more of a violation of their civil rights than incarcerating them, but I have seldom seen a bond issue for more prisons that people won't vote for.
No, the problem is with the civil rights of the rest of us who are innocent. We don't want our email read just in case we are terrorists. We don't want our houses broken into at night just in case we are drug dealers. And if we find ourselves in police custody, we want our habeas corpus rights respected and we want to get our due process or be released.
You see, that's the nagging little problem. Because the people the administration and their law enforcement arms are detaining and eavesdropping on are only "suspected terrorists", or I will even grant you "strongly suspected terrorists". And there is a whole great world of difference between even a strongly suspected terrorist and a convicted terrorist. That is what due process and the presumption of innocence is all about. We have a legal term for a person "suspected" by the police of crime or terrorism: Innocent citizen.
Yes, I understand that for the police to do their business, they need to be able to investigate suspected criminals. As I wrote here, we have a process for that - the legislature sets the rules for investigations and searches, the Supreme Court tests the rules against the Constitution, the administrative branches follow the rules, and the courts have various review roles, from approving wiretaps and search warrants to being a source of appeal for habeas corpus violations. That is why I stated that though I opposed provisions of the Patriot Act, at least it followed this separation-of-powers script. It is when the administration claims new powers for itself without legislative authority or judicial review that really gives me the willies.
And yes, I know that the counter-argument is that we are at war and the administration and the President as commander-in-chief have the abilities under their powers to do, uh, whatever it takes I guess to prosecute a war. After all, you can't run to Congress for a vote every time you want to move the troops in a war, can you?
There is a major problem with this argument. To the extent that the President has all this extra wartime power, the founding fathers put in a very sensible Constitutional provision that the Senate must make a declaration of war before the President has these wartime powers. And you know what -- the Senate of this country has not declared war since about 1941 on anyone. Even if I give GWB credit for all the best motives in the world, we cannot have a government where the President can assume all kinds of magic wartime powers AND unilaterally declare war himself (and no, the Senate authorization for military action in Afghanistan was not a declaration of war, at least in this sense). Effectively the Administration is asking us to a) allow the Administration to define when and who we are at war against; b) allow the Administration to identify, without outside review, who the combatants are in this war; and c) allow the Administration to search or indefinitely detain these combatants that they identified, indefinitely and without review outside of Administration-controlled organizations.
No way. And I don't think a President has these powers to arbitrarily name who is a threat and detain them without due process even in a declared war - I mean, does anyone remember the embarrassing Japanese internments in WWII? Were the Japanese internments any different, except in scale, from the powers the administration is claiming today?
Supporters of the war in Iraq have defended that Iraq is better off despite the high ongoing civilian death toll from terrorist acts. They argue that the people of Iraq are willing to pay the price of dealing with these terrorist attacks in order to gain the status of a free and open state. I would ask, then, aren't we in the US just as willing to deal with some increased risk of terrorism in order to maintain a free and open state?
I don't consider myself a tinfoil hat guy. I think many of the security concerns behind the administration's actions can be addressed with some respect to separation of powers, if the administration was just willing to try. However, it is my observation that the administration gave up trying to work with Congress about 2 years into his first term. GWB hasn't tried to push any kind of legislative agenda. He hasn't tried to bring any adult supervision to the gross display of spending excess going on. He hasn't even used his veto pen once. It strikes me that the Bush administration decided in about 2002 that Congress wasn't serious (I can sympathize with that) and that they were going to go off on their own and run things by themselves. Sorry, but no matter how good your intentions, it does not work that way.