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Frittering Away Our Liberties

The Truth Laid Bear has a thought piece (via etherbish) about the long-term effects of the war on terror, written as a future version of the the same blog set in the year 2014. It's not a pretty picture:

We have carefully created an edifice of law and judicial precedent that, while following the letter of the Constitution at every turn, has betrayed its spirit at the deepest level. Driven by the frustration at our inability to stop those who would do harm to this nation and its citizens and by the ever-present need for government officials to be seen to be Doing Something About The Problem, we have transformed ourselves from a society which places respect for individual liberties at the heart of our culture into a state which considers every citizen to be a terrorist-in-waiting, presumed guilty and to be monitored, restricted, and controlled at all times.

The Founding Fathers labored long and hard to ensure that the power of the government was restricted at every turn, so that the United States could never become the kind of oppressive regime they so loathed in the English crown. We now know, however, that even their brilliant counterweights and careful checks on the power of government were no match for the decade-long efforts of a federal bureaucracy fueled by paranoia, and cheered on by a public that had feared for their lives so badly, they surrendered their liberty and their pursuit of happiness without complaint.

Is this hyperbolic? Of course it is. But consider the following statements by President Bush at a recent press conference:

The number one priority of this government and the future governments will be to protect the American people against terrorist attack...

Protecting American citizens from harm is the first priority, and it must be the ruling priority of all of our government.

And here I thought the first priority of the President was to "support and defend the Constitution of the United States against all enemies, foreign and domestic."

Are we frittering away our liberties in the name of the war on terror? This is from a recent New York Times article:

Yasser Esam Hamdi, a Saudi national who was captured in Afghanistan [and labeled an "enemy combatant" by the government], is probably an American citizen by virtue of having been born in Louisiana...

Judge Robert G. Doumar, an appointee of President Reagan, has twice ruled that Mr. Hamdi is entitled to a lawyer and ordered the government to allow Frank Dunham, the federal public defender, to be allowed to visit him without government officials or listening devices. Judge Doumar said that "fair play and fundamental justice" require it. He said the government "could not cite one case where a prisoner of any variety within the jurisdiction of a United States District Court, who was held incommunicado and indefinitely"...

[Appeals Court Chief Judge J. Harvie Wilkinson 3rd] seemed to evince some surprise at the breadth of what the government was asserting when he asked the Justice Department's lawyer, "You are saying that the judiciary has no right to inquire at all into someone's stature as an enemy combatant?"...

The case of Jose Padilla, which has not progressed as far as that of Mr. Hamdi, may present an even greater challenge to normal judicial procedures.

Mr. Padilla, also known as Abdullah al-Muhajir, is, like Mr. Hamdi, an American citizen, imprisoned in a naval brig after having been declared an enemy combatant. But unlike Mr. Hamdi, Mr. Padilla was not arrested on the battlefield by the military but on United States soil by civil law enforcement authorities, on May 8 in Chicago...

"This is the model we all fear or should fear," said Dunham. "The executive branch can arrest an American citizen here and then declare him an enemy combatant and put him outside the reach of the courts. They can keep him indefinitely without charging him or giving him access to a lawyer or presenting any evidence."

Still not convinced? This is from an article in the Washington Post:

The 600 suspected terrorists being held at the U.S. naval base in Guantanamo Bay, Cuba, have no right to bring their cases to U.S. courts, a federal judge in Washington ruled yesterday in a decision that allows the government to continue holding the detainees indefinitely.

In a 34-page ruling, U.S. District Judge Colleen Kollar-Kotelly rejected efforts by 16 captives to end the government's policy of holding them without charges, access to lawyers or trial dates. It was the first time a U.S. judge had ruled on the merits of that practice.

Kollar-Kotelly ruled that although the men may have "some form of rights under international law," such as the Geneva Convention, their nationalities and their geographic location mean that they do not have the right to press their cases in U.S. courts.

"The court concludes that the military base at Guantanamo Bay, Cuba, is outside the sovereign territory of the United States. Given that... writs of habeas corpus are not available to aliens held outside the sovereign territory of the United States, this court does not have jurisdiction" to hear the case, she wrote....

"None of the men in Guantanamo have been accused of anything," said Barbara Olshansky, assistant legal director for the Center for Constitutional Rights, a New York-based nonprofit organization representing Shafiq Rasul, a British national, and three other plaintiffs.

"The judge's decision is in error from many perspectives. She says they have access to international law, but it isn't clear how they would ever get it if they can never see their lawyers or have any form of due process... The U.S. calls countries the world over to task for these sorts of abuses."

The net effect of all this is that the present Administration has asserted its sole right to determine who is an "enemy combatant," whether an American citizen or not, and whether arrested in the United States or not. Once so determined, the Administration asserts that no court should have the ability to review its decision, and that such enemy combatants may be held indefinitely, neither having been brought to trial or even offered access to counsel.

The description of life in 2014 doesn't sound quite so far-fetched now. Still hyperbolic, but not out of the question.

This seems like a useful time to remind ourselves of the words of Benjamin Franklin:

They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.
Thanks, Ben. I wish you were here. We could use you right about now.

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