I mean, don't get me wrong. The most disappointing thing to me about Obama's adoption of Bushian Doctrine on Guantanamo, military commissions, "preventive detention," and escalation of the war in Afghanistan, state secrets (which he has actually expanded), and shielding from prosecution any violations of FISA or the Convention Against Torture, is that the most predictable result of such passivity and acquiescence has now come to pass. Since Barack is a liberal hero, he has succeeded in educating the half of the country which resisted Bush's depradations against the Bill of Rights and lawless approach to governing that it was, after all, okay. You can feel it in the air. Except for a few holdouts, such as the American Civil Liberties Union and Center for Constitutional Rights, promotion of the Bill of Rights is seen as part of a "leftist agenda." The most dangerous thing about Obama's enthusiastic adoption of the Cheney doctrine of "preventive detention without trial and without charges" (which so clearly violates the 5th Amendment rights of "any person" (not just Americans) is that it now vests in people the final decision on whether someone is set free or imprisoned. Not a set of laws. Not a predictable system of procedures. The say-so of a politician.
A long time ago I wrote about the real meaning of the Jose Padilla case. I saw it as Cheney's experiment. He was curious whether he could arrest an American on American soil and imprison him indefinitely without charges and detain him in an American brig without (a) a public outcry and (b) Congressional interference. He succeeded on both counts. That's the thing you have to concede to Dick: he thinks big. It was a test case to determine whether the Democrats in the House and Senate were the pussies he thought they were. I watched and listened for that impassioned speech, that convening of hearings by Harry Reid or Nancy Pelosi, which would spell out why the Padilla case was so outrageous and outside the bounds of ordinary American judicial procedure. Never happened.
"9-11 changed everything." So the self-protective solons in Congress were not going to do anything to make themselves look soft on terrorism. Never mind that Padilla was never charged with the crime he was arrested for, the "dirty bomb" plot which Rumsfeld made up. Instead, he was driven nuts through years of solitary confinement and abuse so that he could not effectively participate in his own defense in a conspiracy case he was sucked into down in Florida.
Could that happen to you or me? Well, let's see. If you're reading this, you're probably an American citizen, although it's probably worse for you if you're in America and you're not. Maybe you're on American soil right now. And you haven't participated in a dirty bomb plot either. Thus, so far, you're pretty much exactly where Jose Padilla was. You're certain, however, that it won't happen to you and regard the suggestion that it might as paranoid. You're probably right.
The Sons of Liberty in the late 18th Century in this country, however, didn't look at things that way. One of their biggest gripes against King George III was his practice of "executive preventive detention" and abridgement of legal process. It's right there in the Declaration of Independence, which hangs on my office wall: "For depriving us in many cases of the benefits of trial by jury." They weren't going to stand for that, because that's a tyrannical power, to declare the freedom or imprisonment of individuals on the basis of "executive decision." And they included the 5th Amendment in the Bill of Rights:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
I understand the counter-argument: the world is now too dangerous for Constitutional rights. It's better to abridge liberties in the case of the individual in order to ensure the safety of the larger citizenry. It seems to me, however, that if we're going to do that, we should amend these charter documents. There is no serious argument that Padilla, for example again, was held beyond the "48-hour" period of permissible detention before presenting charges against him. He was held for years with no charges. He was denied his right to counsel. He was denied his right to a speedy trial, and he was deprived of his life and liberty, for years, without due process of law.
What is vexing about Obama's decision to make the Padilla treatment standard procedure is that I'm almost certain George W. Bush was unaware that the Bill of Rights existed. I'm sure he never read them. Barack, on the other hand, studied them and taught them. He's aware of what he's doing. And what is it that he's doing? I think he wants to be taken seriously as a guy who's just as tough as Dick Cheney. I think that's the image he and his handlers are working on. And one has to admit that it looks mighty tough to do unconstitutional things to protect the country.
So I said yesterday that Barack's preventive detention scheme looked "silly" and inconsistent when you compared it to the fate of terrorist suspects who are actually tried and convicted and given determinate sentences and ultimately released, and someone asked me what I meant. So to spell it out: presumably there will be Guantanamo inmates who are tried and convicted, one way or another, and given sentences which they outlive. This has already happened in the very few cases which have actually gone to trial in the 7 years Guantanamo has existed. So these convicted terrorists will then be eligible for release into the wide, wide world. At least I assume they will be. So we then would have these two categories of terrorist detainees: the Category 5 detainees who have never been charged because they can't be convicted but are considered too "dangerous" to release; and terrorists who have actually been convicted, proved guilty, and are now eligible for release.
That seems completely crazy to me. It's the sort of arbitrary, nonsensical thing that begins to happen when you start operating outside the rules because of "special circumstances." This kind of lawless approach spreads like a contagion until the system is no longer reliable or fair. Thomas Jefferson and John Adams understood such things; I'm not sure there are many people around today who still do.
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