Today, December 16, 2011, is a dark day in the history of the United States. This morning the Senate passed on a vote of 86-13 (including yeas by both senators from the State of Washington and an earlier affirmative by our local congressman) a measure that codifies in U.S. law authorization for the President of the United States to order any person, including citizens of the U.S. and legal aliens, deemed by the president to be guilty of associating with certain terrorists groups, be arrested and held indefinitely without due process of law. This is a heinous violation of one of the most cherished freedoms in Western civilization: the prohibition against imprisonment on the whim of a monarch or executive without some third party assent that actual legal transgression has occurred. This is a tradition predating even the U.S. constitution, having been first codified at least as early as the Magna Carta in 1215.
For most of U.S history., you have been guaranteed a considerable number of rights when arrested. If the authorities took you into custody, they had to tell you precisely why you were being arrested. Within a short period of time, typically 24 hours, they had to appear with you before a magistrate and demonstrate to his or her satisfaction that there was ample evidence that you were probably guilty of a crime. Even if the judge agreed, you also had the right to be free from jail pending trial, if necessary, by posting a bond appropriate to the magnitude of the crime for which you were accused. This could only be denied if the judge determined you were a danger to the public or a significant flight risk. All of these things could be appealed, and in any case you were entitled to legal representation.
If the president signs this bill, as I expect he will, this will no longer be true if one man – the President of the United States – decides you should be indefinitely detained. All that is necessary is that he declare that you are in some way a supporter of an organization that, in his view, somehow can be construed as supporting terrorist groups.
Okay, no problem, right? No one reading this worries that they could remotely considered as being associated with any terrorist organizations, right? Think again. If you’ve watched Fox News, listened to talk radio or visited Pamela Geller’s web site lately you know that there have been numerous attempts, however pathetic, to associate Occupy Wall Street with radical Muslims. This type of innuendo is common in our society. No matter what part of the political spectrum you occupy, you are susceptible, under vague legal mumbo jumbo such as exists in this law, to being associated with some group that can be interpreted as an “associated group” to terrorist organizations.
It is not hard to imagine a future president Gingrich or Bachmann or Perry or Santorum interpreting this law to apply to virtually anyone. Think you’re immune? How about if you’re a member of a militia or a private gun dealer who is perceived as having sold weapons that somehow wound up in the possession of a group perceived as “terrorists?” Could a President Hillary Clinton or some equally frightful “ultra-liberal” bogeyman conceivably interpret this statute as applicable to your indefinite detention? Before you dismiss it as “not a concern to you personally,” you had better think – long and hard – about that kind of power in the hands of someone whose judgement you might not trust. Because it’s the nature of our democracy that, sooner or later, someone matching that description will be in a position to wield that power. That’s precisely why the founders tried to make all such power subject to those “checks and balances” we all learned about way back in middle school. And this law deliberately circumvents those measures.
There is admittedly considerable disagreement as to whether the nightmare I’m describing here – that citizens and legal aliens could be indefinitely imprisoned without due process – can actually play out. The liberal publication, Mother Jones, says it can’t. The New York Times editorial board and constitutional lawyer, Glenn Greenwald beg to differ (LINK LINK LINK). But this controversy only serves to prove my point. If anything, recent history is on the side of aggressive presidents having their way with constitutional issues when it comes to matters where they can claim the shield of national security. At best, it could take many months or even years to judicially overturn even the most egregious abuses of this law.
No one man or woman in a constitutional democracy should ever wield such power as this law potentially bestows. Not Barack Obama, not George Washington, and certainly not men like George Bush, Dick Cheney, Rick Perry or Newt Gingrich, nor any of the myriad pretenders who, given the fickle nature of the American electorate, might someday accidentally actually get elected.
At this point, we have greased the first step on the slippery slope to hell by planting the seeds of tyranny in the very statutes that govern our democracy. Let us all hope that we can reverse that slide before the concept that a president can simply order people into jail becomes an accepted norm.