TheAgitator.com
Is PATRIOT the Real Threat?
Thursday, September 4th, 2003This Julian Sanchez piece on the PATRIOT Act controversy had me nodding along all the way. Until I thought: you know, in one sense Ashcroft has a point. The PATRIOT Act is a relatively small threat to liberty and the rule of law.
After all, federal police powers in general, and secret surveillance powers in particular, were already grotesquely excessive and subject to considerable abuse before 9/11. Ashcroft has from the start been essentially a hopped-up Janet Reno, as even John Derbyshire used to recognize. Most of what he has done since 9/11 he probably could have done without the PATRIOT Act powers. PATRIOT differs in degree, not in kind, from the Clintonian assaults on civil liberties; it is another outbuilding erected upon a vast, already-laid foundation.
Far more fundamental, and more deeply evil, is the “enemy combatant” power. Think about it: federal officials can now indefinitely and secretly detain anyone they please, with no judicial review, no showing of evidence to anyone, no nothing. They can “disappear” people in the same arbitrary way the Argentinean generals did.
The “enemy combatant” status is a standing affront to the separation of powers: it was instituted by executive fiat without so much as a Congressional rubberstamp. It poisons the entire criminal justice system: the feds can abort any court proceeding that isn’t going their way by declaring the accused an enemy combatant; they can squeeze plea-bargains out of suspects with the unanswerable threat of indefinite detention, regardless of the strength of their case.
The fact that this tyrannical power has been used only a few times– as far as we know– is no comfort. Nor do the “precedents” the Administration’s defenders cite legitimize the practice. If one wartime abuse of power justified subsequent abuses, then the Spirit of ‘76 case would justify the jailing of Michael Moore.
Worst of all, nothing we say, or manage to do, about the PATRIOT Act will affect the “enemy combatant” power. Indeed, if we focus too much on the details of demands for bookstore sales receipts and warrants for secret searches, it may actually increase the government’s ability to get away with disappearing people.
If I were a conspiracy theorist, I would wonder whether Ashcroft’s PATRIOT-promoting tour was a feint, deliberately designed to draw fire from civil-liberties defenders. Might he be secretly happy to give us a chance to think we’re resuscitating due process of law, when he knows it is already safely dead?
Micheal Moore behind bars! Now that I would like to see.
The better conspiracy theory is that the White House is setting Ashcroft up for a fall should PATRIOT backlash grow during the election campaign. Ashrcoft is a terrible communicator, a poor manager at the DOJ, and no longer serves his original political purpose (offering Christian conservatives a place in the Cabinet). By getting Ashcroft out there defending the PATRIOT Act–and by extension policies like enemy combatant–the Attorney General can be set up to take the fall down the road when the Bush pendulum swings back to “compassionate” again.
The main problem with most critics of the PATRIOT Act is that they rarely, if ever, have actually read the damn thing. I have yet to see someone actually quote from the Act in support of what they say it purportedly allows. That poses a huge credibility problem in itself.
Second, the PATRIOT Act has absolutely nothing to do with the “enemy combatant” issue. It is all about the executive branch’s power as Commander in Chief to wage war. Courts have so far not deigned to tread very far into drawing the line on who the executive branch may declare an enemy combatant, and my guess as to why is because the executive branch has done this so rarely and only in the most obvious cases as to make the creation of such a rule (so far, at least) to be unnecessary. Now, I think eventually it will be necessary for the courts to circumscribe this power so that it can’t be used arbitrarily, but the fact of the matter is that no court has seen the concept of “enemy combatant” as being an unreasonable one. And when one reads the facts of the Padilla and Hamdi cases (two examples of people held as enemy combatants), it’s pretty obvious that these are not borderline cases.
I do agree that it is honest to criticize the PATRIOT Act if you think that the powers it has expanded to apply to terrorism were already overintrusive when applied to drug dealers and murderers before 9/11. The problem is that the ACLU (to whom I’ve given money, mind you) and other critics are portraying the Act as some breathtakingly new thing, when it clearly isn’t. Libraries are suddenly all worried about people looking up what books they’ve checked out when in fact the police could already do that for non-terrorism cases (as they did for the Unibomber investigation). In short, the critics have not been fair in their attacks, which unfortunately draws attention away from the real issues and in fact gives the government strong arguments in rebuttal. When it comes down to it, it’s a tough sell to argue that a suspected terrorist deserves more protection than a suspected murderer or drug dealer (leaving aside the question of whether the Drug War is a good idea), and the public has generally already agreed that the investigatory techniques being used against murderers and drug dealers weren’t overly intrusive. Pen registers and the like have been around for over a decade already, for example. In other words, if you’re going to object to the PATRIOT Act, you’ve got a lot of other history and opinion to overcome as well, since the Act is somewhat common-sense when seen in the context of what had already been in place before it. Again, I have no problem with people making that argument, but I do have a problem with people who think the PATRIOT Act itself is some new and unprecedented invasion. It’s not.
As a final note, I wanted to offer a little real-life hypo: In the Civil War, the North never declared war against the South simply because to do so would politically acknowledge the validity of the secession. From all accounts, though, a war ensued. Let’s say some Confederate troops are captured. What to do with them? The North explicitly did NOT declare war because to do so would admit that Confederate troops were no longer citizens of the United States. So logically the troops should still be citizens. But they were engaged in war against the North. Does that mean that all captured Confederates should have been “arrested” instead of held as POWs? That they all deserved trials? That they should all be charged with attempted murder of a soldier of the United States (or first degree murder if it were proved that they did in fact kill a soldier)? Or would it make more sense that they be held as enemy combatants? Would the fact that thousands of Confederate troops were being captured and held as enemy combatants be an example of “abuse” of the power by the North? I am not seeking to analyze (or apologize for) President Lincoln’s many marked incursions into individual rights during the Civil War, but I think this example is useful in putting something like “enemy combatants” into perspective.
Excellent point, and probably something I should’ve mentioned in the piece… a lot of the scariest goings on have nothing to do with PATRIOT, and I suppose that in a sense, too much focus on PATRIOT could distract us from the big picture.
You say that the Padilla and Hamdi cases are “obvious”. How do we really know the facts of these cases, though? All we have is the government’s version of events. Why should we believe that? Padilla and Hamdi have not been given any chance to present their side in court, and if the government gets its way they never will.
Re the Confederate example: if the government detains someone, it must be *either* as a POW *or* as a civilian criminal. Either they get a trial and the associated due process protections, or they get the protections afforded under the Geneva Conventions to POWs. Arbitrary detention with no legal recourse should never, ever, ever be an option. If it was done during the Civil War, it was wrong then; when it is done today it is still wrong.
It’s true that the courts have not struck down the declarations of “enemy combatant” status. It’s also true that a majority today probably supports broad federal investigatory powers. But so what? Courts have legitimized plenty of horrible things in this country’s history. Majorities have supported plenty of tyrannical, evil government actions, too. That doesn’t make the actions one bit less reprehensible.
(the preceding was, obviously, directed at James, not Julian).
“The PATRIOT Act is a relatively small threat to liberty and the rule of law.”
Uhh, sir, you need to really read the act, or at least, read the new Bovard book “Terrorism and Tyranny” with it’s encyclopedia of facts on our dear Patriot friend. Then of course there’s the Robert Higgs thesis (_Crisis and Leviathan_) of governments using crises or *perceived crises* to ratchet up federal powers…..yes, sure, “relatively small threats,” indeed.
secessionist: do note the emphasis I placed on the word “relatively”. I am aware that federal power is often increased, and liberty lost, by a sequence of small steps; I’m pointing out that in this case a small step may be accompanied by a larger and less easily opposed one.
I will read the Bovard book, though. I like Bovard’s work a lot; his Clinton-era books provide good documentation of how bad things already were before 9/11.
Just wondering, has the Patriot Act actually effected anyone here (people reading this) at all. My life hasn’t changed.
Nick: Both the Padilla and Hamdi cases have had publicly-reported judicial decisions rendered on the issue of their enemy combatant status. See Hamdi v. Rumsfeld, 316 F.3d 450, for example. You can distrust the government’s presentation of the facts all you want, but the end implication there is that a trial is necessary for everyone the military captures, regardless of their citizenship or action, since we just can’t trust the government to be honest that the people captured aren’t American citizens or weren’t shooting at us. What’s the point, then?
I think the insistence that a person must be detained either as an enemy combatant or as a criminal ignores the fact that a given person might meet the technical definitions of BOTH categories, but that the government isn’t fully aware of this at the time of capture — they certainly aren’t going around asking for citizenship before they shoot back, for example, nor should we demand they do this. It isn’t “arbitrary” to consider treating a person who meets both criteria as one or the other, depending on other circumstances.
This is the kind of thing that just can’t be solved with simple theories, I’m afraid. You’re right to point out that just because a court says it doesn’t mean it’s good or libertarian, but I think it’s wrong to automatically assume that a libertarian government wouldn’t utilize enemy combatant status against civilians that go to other nations and take up arms against our military. There’s a bit of common sense to be employed here.
Secessionist: Are you suggesting that 9/11 was a non-crisis or a manufactured crisis?
Hamdi wasn’t just some guy walking down the street. He was captured in Afganistan during military operations with a rifle in his hand fighting alongside his Taliban buddies. I hardly call that “disappearing” somebody.
If the government wanted to, it could disappear people with or without the enemy combatant power. Heck, the mafia disappears people, and they can’t even issue executive orders. The fact that they don’t do so has little to do with the contours of international law, and almost everything to do with the fact that America is not governed by two-bit dictators.
“Just wondering, has the Patriot Act actually effected anyone here (people reading this) at all. My life hasn’t changed.”
Mine hasn’t either… and I guess I wouldn’t have been harassed too much under Jim Crow, either. Is that our standard?
James: I have no particular problem with the government making discretionary decisions in hard cases on civilian criminal status vs. POW status. But “enemy combatant” status is *neither*.
Hamdi and Padilla didn’t get Geneva Convention POW protections *or* civilian due process. Instead they got whatever protections (or lack thereof) the executive felt like giving them, based on rules that said executive made up as it went along. That’s wrong, no matter how many courts can be cowed into ratifying it. And if the government can declare anyone an enemy combatant at any time, regardless of location or circumstance, that gravely imperils the rule of law for everyone– even if, as far as we know, they haven’t abused it *yet*.
I must respectfully disagree with Mr. Neeley. The openness and accountability provided by our legal due process requirements– not international law, but domestic law– are our principal protection against mass disappearances. Our politicians are no different in character from “two-bit dictators”; they are simply better restrained by our system of laws. As Jefferson put it: “Therefore let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution.”
Actually, Nicholas, according to the Hamdi v. Rumsfeld case I cited above, “enemy combatants” are defined as those “captured during wartime.” See footnote 3. He is, in other words, a POW. Now, I don’t know where you got the information that Hamdi has not been held under the Geneva Convention — the case does not claim otherwise — but I suppose here that the real problem Hamdi faces is that there’s no one out there to bargain for or entreat his release. Anyone who would have reason to do so is still on the run and in hiding.
I do agree that openness and accountability are important, and I am concerned that DOJ has been placing secrecy first. I understand that we don’t want dangerous terrorists figuring out how we’re trying to catch them, but there needs to be an eye on the process to protect against abuse — even when in good intentions. I’d want both congressional intelligence committees getting the scoop on this stuff, and I’d want severe penalties for those who’d blab to the press about it. But I certainly don’t think that we should be putting every POW through our court system, and I also don’t think our Founding Fathers ever intended for that to happen either. The Constitution gives awfully broad authority to prosecute war, and that’s because “the Constitution is not a suicide pact.” We need to re-introduce the gatekeeping function on war (i.e. Congress’ declaration of war), but otherwise it’s not a good idea for us to be mixing domestic criminal law with war, just like we shouldn’t be making our soldiers perform police functions and vice versa.
what is it about you pseudo-Libertarians who seem to be incapable of understanding the following?
In Germany they first came for the Communists,
and I didn’t speak up because I wasn’t a Communist.
Then they came for the Jews,
and I didn’t speak up because I wasn’t a Jew.
Then they came for the trade unionists,
and I didn’t speak up because I wasn’t a trade unionist.
Then they came for the Catholics,
and I didn’t speak up because I was a Protestant.
Then they came for me –
and by that time no one was left to speak up.
– Pastor Martin Niemoller
http://www.hoboes.com/html/FireBlade/Politics/niemoller.shtml
First they came for the terrorists,
and I didn’t speak up, because I wasn’t a terrorist.
Then they came for… well, actually they didn’t come
for anybody after that.
Personally, I find comparasons between what our government is doing now and the holocaust offensive. I was a reluctant supporter of the Iraq war, and I have some concerns about some of the things the DOJ is doing. But I find myself being pushed further and further to the right by the innane and paranoid rhetoric coming from leftist/libertarian/paleocon nuts.
A piece of advice: when you compare the detention of a few hundred Afgani terrorists in Cuba to the Nazi slaughter of six million Jews, you trivialize both the horror of Nazism and yourself; when you compare the use against terrorists of survailance practices long used against the mafia to totalitarianism, you give anyone who hears you a warrant to disregard anythng else you say; and when you say that George Bush is no different in character from a two-bit dictator, then you reduce your credibility to zero.
The PATRIOT Act is the least of anyone’s worries. Did you know that all the government has to do is “claim” that you have some contageous disease, and they can detain you indefinately? That the government can say that you, me, or anyone, is “suicidal” or “mentally ill” and put you in a “mental hospital”? Are you aware that there are these sinister groups out there, called “neighborhood watches” whose job is to spy on you, like Big Brother? That you have to have an ID card on you at all times, and that if you don’t, you can’t drive, buy alocohol, or get money from a bank? Truely our nation is about three steps away from becoming a facist police state.
I wonder when the terror warriors who are so content to hand these tools to George Bush will realize that eventually the same tools will be handed back to their political enemies…
If HRC is elected do you think Rich Lowry will be as complacent about people being dissappeared?
James T. Markels asks: “In the Civil War, the North never declared war against the South simply because to do so would politically acknowledge the validity of the secession. From all accounts, though, a war ensued. Let’s say some Confederate troops are captured. What to do with them? The North explicitly did NOT declare war because to do so would admit that Confederate troops were no longer citizens of the United States. So logically the troops should still be citizens. But they were engaged in war against the North. Does that mean that all captured Confederates should have been “arrested” instead of held as POWs? That they all deserved trials? That they should all be charged with attempted murder of a soldier of the United States (or first degree murder if it were proved that they did in fact kill a soldier)? Or would it make more sense that they be held as enemy combatants? Would the fact that thousands of Confederate troops were being captured and held as enemy combatants be an example of “abuse” of the power by the North?”
In fact, the U.S. Government at first *did* try to put Confederates on trial for criminal violations. Early in the war, the U.S. Navy captured a C.S. Navy ship and brought her and her crew into New York harbor, where her officers were indicted for treason and piracy. This was consistent with the government’s legal theory, but inconsistent with common sense, not to mention common humanity, since it was obvious that what was going on was the kind of organized conflict between de facto governmental bodies that we know as war. There was such an outcry (and the threat of reprisals against U.S. POWs in Confederate hands) that the U.S. government treated captured Confederates as prisoners of war throughout the rest of the war. (As Nicholas Weininger points out, the government is trying to use a third category, neither POW nor ordinary criminal, relying on the Ex parte Quirin precedent that made some sense in the case of saboteurs working as undercover agents for a state against which there were organized hostilities, but much less against what amounts to a really big organized crime gang.
(In fact, it’s not clear to me that what’s going on with al-Qaeda is war by any traditional definition. I would agree that the conflict with the Taliban government in Afghanistan was war. But the “war on terrorism” strikes me as a lot like the “war on drugs,” or the “war on organized crime.”)
I would also point out that, during the American Revolution, the British didn’t put captured POWs on trial for treason, but treated them as POWs. (Had they failed to do so, our army might have felt compelled to execute a few British POWs in repirsal.) And during the Vietnam war, I don’t believe that captured VC were put on trial for treason against the Republic of Vietnam.
why are small aircraft planes always on top of me? Constantly, who is it? I think there responsible for 911