There used to be a line in the sand that we, as Americans, refused to cross when it came to decency. But recent news confirms the United States has entered a new era.
The Washington Post reported yesterday that the White House has successfully pressed House Republicans to broaden the legal definition of an unlawful enemy combatant, potentially allowing the government to seize, "try" and indefinitely detain a person nebulously found to have "engaged in hostilities against the United States or who has purposefully and materially supported hostilities against the United States." Such a definition would potentially put those individuals (apparently including U.S. citizens) far removed from the battlefield or plot potentially under this purview. It is scheduled for a vote this week.
This news follows President Bush admission that the United States has indeed been operating secret prisons and "interrogating" prisoners there. Never before has it been a policy of the United States to condone torture and secret prisons, let alone to set them up and operate them. On the contrary, it has been U.S. stated policy to reject torture in any form, especially in dealing with other nations whose human rights' records did not measure up to our standard. Now, the United States no longer holds the moral bar with which to measure the morality of others.
How did the United States sink to this level? Clearly, it has not been the good people of this country who changed existing policy. And the judiciary branch has done nothing to authorize or condone this policy shift. Congress has not (yet) approved such practices. It has been the executive branch by itself that changed a tradition that has existed since the establishment of the nation. Does the president have the authority to make this change unilaterally and will Congress this week broaden his ability to try and detain individuals?
Today, many in the United States are becoming increasingly concerned about the government's access to databases that expose virtually every facet of their existence: from what books they check out of the library; to the right to fly or not to fly based on another database entry; to the tracking of vehicles, real estate, and other property for tax purposes. These so-called intelligence fusion centers have sprung-up around the country in virtually all states and the federal government. Ostensibly, the information is used to track data to connect the dots of possible terrorist activity. But with actual terrorists and their associates probably accounting for far less that 1% of people living in the United States, their real objective is to collect data on the other 99+% of people (mostly U.S. citizens).
The creation of secret prisons outside this country and the use of torture has further put this country on the wrong track. This is not a cause-and-effect dictum of 9/11. It is a mentality that results in brutalizing people overseas and domestically. Now in the United States more and more often SWAT-type teams breakdown peoples' doors, manhandle the residents, and then cart them off for "interrogation."
Meanwhile, people around the world continue to lose confidence in the U.S. government. Even our closet allies are declining to back U.S. adventurism abroad, and have been generally less willing to support America. Thanks in part to the internet, many no longer see the United States as a shining light on a hill and a beacon of freedom for all. They now perceive U.S. imperialism and cultural decadence.
Americans themselves want to see a government that will actually represent their interests, not special interests. They are disgusted with pork-barrel spending by politicians, deficit sending without end, spiraling federal debt, and a currency tied to the "on" button on the printing press. They do not want the government to be monitoring their every move. They do not want the government interfering in their churches. Maybe now it is time for them to do something about those preferences.
The Founders of this great nation crafted the Constitution to prevent tyranny and to limit the size, scope and power of the federal government. To that end they did a masterful job in diffusing authority among the three branches of government and even limiting the power in each branch, lest any get out of control.
The de facto ban on torture and secret prisons-located in other countries and outside the authority of most American laws-was maintained until sometime after 9/11, when they were instituted for the first time in U.S. history. Can we justify them?
The answer is no. As a nation that upholds freedom and liberty we cannot justify them as a policy, secret or otherwise. They are anathema to basic American values. Things like torture and secret prisons may occur in other countries, but they should never be encouraged nor operated by this country. Tactical intelligence should only be obtained by the CIA and military intelligence officers using approved interrogation techniques that are in accord with our laws and the Constitution. The desired result may take longer to attain, but it remains paramount that we not violate our laws and established doctrine.
What about extreme cases when time is of the essence? For example: a terrorist with a backpack, nuclear weapon in New York City. We know his mission, do not know who or where he is, but have custody of others in his cell. What do we do? Most of us would say get the answers any way possible and suffer any consequences later. But such a scenario does not reflect the routine cases where tactical intelligence is extracted using approved techniques. It would be the extreme case.
Why is it so important to follow the letter of the Constitution? Because deviating from it in the past has led to the suspension of constitutional rights of some Americans. During World War II U.S. citizens of Japanese ancestry were rounded up, put on trains and sent to various American gulags. Their property was confiscated and they were only allowed to bring with them what they could carry to their internment. The vast majority were never charged or even suspected of having committed any crime, including treason. They were overwhelmingly good, loyal American citizens. Few of them ever had their confiscated property returned to them after they were "dis-interned" following the war.
This is very similar to what occurred in Europe during this period when the Nazis were rounding up all Jews for internment and extermination. Their property was confiscated too. The only difference, it seems, is that the United States did not have extermination camps. Perhaps that made us more civilized. But this was, indeed, a dark day in American history. Adherence to the letter of the Constitution-and the limited federal power it guarantees-should remain a prime directive in American jurisprudence and in politics.
To rectify the current situation, the legislative branch must not enshrine into law this week expansive federal powers to try and detain individuals, particularly U.S. citizens. Congress should also generally rein-in the executive branch of government through committees on foreign affairs, intelligence, and most importantly of all, by restricting money for certain activities. It must also hold firm on any modification or retrenchment away from Common Article 3 of the Geneva Convention. Restoring a better power balance between the various branches of government is an important first step in restoring confidence in the U.S. government, its foreign policy, and the values that we had prior to 2001.
Noel Gibeson is president and CEO of the Mount Vernon Institute, a conservative, non-partisan research institution and a member of the Federalist Society.