The United States Senate today passed what is euphemistically called “the detainee bill” (S. 3930 As Amended) on which the Northwest Senate delegation was split. The three Democrats, Patty Murray and Maria Cantwell of Washington and Ron Wyden of Oregon, voted against, and the three Republicans, Larry Craig and Mike Crapo of Idaho and Gordon Smith of Oregon, voted in favor.
With that vote, the latter three have entered, and may be leading us down, a dark back alley in history. They forfeited any moral right to describe their public positions or efforts in terms of freedom, liberty or justice. They have just voted against these principles as decisively as it is possible to do. (At last check, they do not appear to have noted their votes, or reasons for them, on their web sites.)
This assessment is not too harsh: Their votes enabled the single most stunning slash at civil liberties in this country since the days of slavery. The mass of power handed over to the president is of the kind more typically handed over in countries whose form of government is not described as either “free” or “democratic.”
Here is what Yale law professor Bruce Ackerman said about it in today’s Los Angeles Times:
The compromise legislation, which is racing toward the White House, authorizes the president to seize American citizens as enemy combatants, even if they have never left the United States. And once thrown into military prison, they cannot expect a trial by their peers or any other of the normal protections of the Bill of Rights.
This dangerous compromise not only authorizes the president to seize and hold terrorists who have fought against our troops “during an armed conflict,” it also allows him to seize anybody who has “purposefully and materially supported hostilities against the United States.” This grants the president enormous power over citizens and legal residents. They can be designated as enemy combatants if they have contributed money to a Middle Eastern charity, and they can be held indefinitely in a military prison.
Not to worry, say the bill’s defenders. The president can’t detain somebody who has given money innocently, just those who contributed to terrorists on purpose.
But other provisions of the bill call even this limitation into question. What is worse, if the federal courts support the president’s initial detention decision, ordinary Americans would be required to defend themselves before a military tribunal without the constitutional guarantees provided in criminal trials.
The Washington Post‘s Andrew Cohen remarked: “Of all the stupid, lazy, short-sighted, hasty, ill-conceived, partisan-inspired, damage-inflicting, dangerous and offensive things this Congress has done (or not done) in its past few recent miserable terms, the looming passage of the terror detainee bill takes the cake.”
Before harsher denunciation followed: “Do you believe the Administration has over the past five years earned the colossal expanse of trust the Congress is about to give it in the name of fighting terrorism? Do you believe that Administration officials will be able to accurately and adequately identify so-called ‘enemy combatants’ here at home so as to separate out the truly bad guys from the guys who just happen to be in the wrong place at the wrong time? Did you want your legislative branch to abdicate so completely its responsibility to ensure that there are adequate checks and balances upon executive power even in a time of terror? You might have answered ‘no’ to all three questions. But your answer doesn’t matter. And neither does mine. To Congress, the answer is ‘yes, sir.'”
And torture? Oh yeah, got that too – the president pretty much gets to define whatever he thinks is okay. There’s even been analysis suggesting that the bill could legally authorize the rape of detainees. That’s been disputed. Sorta. (We’re old enough to remember when torture was something the bad guys did – and when we were better than that.)
There is much, much more.
A commenter to Cohen’s post: “The fact that we – mere citizens – have allowed Congress to reach the brink of passing one of the most reckless and foolish laws in decades is astounding. Congress is set to gut the Constitution of one of the central rights our Founders fought for, and we are all asleep. Shame on the Republican majority for going lock-step with the President. Shame on Democrats for fighting for what’s right in order to avoid looking ‘soft’ on terrorism. Shame on us for not saying this is wrong.”
The core is this: The United States Senate today did its part toward turning this country into the kind of place we always thought we were better than.
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