If You're Not Mad, You're Not a Civil Liberties Attorney Specializing in Constitutional Law

According to conventional bumper-sticker wisdom, if you’re not mad, you’re not paying attention. As we get closer to the end of the primary cycle, the candidates and their surrogates are ratcheting up the political rhetoric, and we are certainly being given plenty to be mad about. Last Wednesday, as Bush declared to the Israeli parliament that engaging in talks with Iran’s president Ahmadinejad is akin to trying to appease Hitler, we saw the familiar GOP fear-mongering tactics being deployed; just a bit of strafing in advance of the main campaign ground forces. And McCain did not hesitate to take the gift from the administration, agreeing with the statements and wondering what Obama thought he might want to talk to Ahmadinejad about. But of course with the pre-season almost over and the real game about to begin, we know these types of distractions from the issues are going to come at us fast and furious now. The bad guys are out there, they will tell us. “Gathering” and “grave”, they warn. Just waiting for us to let our guard down and elect a democrat so they can blow up more cities. We’ve seen it before, heard it all before. Americans have been paying attention, and we are indeed mad.

But there is a much greater threat to our liberty and security gathering out there. Unfortunately, though, to truly grasp the scope of this threat it’s not enough to just pay attention. Turns out, you have to be a constitutional scholar, a civil liberties attorney and an investigative journalist in order to figure this mess out. Fortunately, many of just those types of people have been working on unraveling the knot of directives, bills and acts that have been pushed through since 9/11 in the name of ‘homeland security’. And what they are telling us is that some of the foundational rights granted under the constitution are now gone. As things now stand, our illustrious President has the power to have any American citizen arrested and jailed- without showing just cause, without allowing them access to a lawyer, without ever bringing them to trial, without even telling the person what the charges are. Once more for effect: our bible-thumping, non-reading, fear-mongering, myopic and arrogant President can have any American citizen arrested and jailed at any time, and without any due process.

Now, I’m as liberal as the next guy. In fact, I am generally as liberal as the next three or four guys. And as such, I am always eager to believe the worst of this administration. But when I first read this in Naomi Wolf’s book The End of America, even I thought it had to be hyperbole. The President, even this President, could not possibly have been able to amass that much power; it is just too sci-fi-post-apocalyptic-conspiracy-theory-ish. So I did a little research…

The first Patriot Act (sec 802) gave us a new category of crime known as ‘domestic terrorism’, and broadly defined it as: “activities that involve acts dangerous to human life” or “are a violation of the criminal laws of the United States or any State” and which “appear to be intended to: i) intimidate or coerce a civilian population; ii)influence the policy of a government by intimidation or coercion [and] occur primarily within the territorial jurisdiction of the United States”. It then goes on to clarify that “any act of domestic or international terrorism” is broadly an “act of terrorism”. According to these new definitions, the immigration rights activists who marched on May Day, students protesting the war, even Greenpeace can now be defined as terrorist groups. But this wasn’t enough, because constitutional protections still existed for American citizens. Even if you did participate in the activities of a “terrorist” organization, you would still have to receive a fair and open trial, with all the rights granted by due process intact, before you could be convicted of any crime or suffer any consequences. So in sec 501 of the Domestic Security Enhancement Act (aka Patriot Act II), the rules were changed so that no one has to prove you’re a terrorist. Instead, “joining or serving in, or providing material support to a terrorist organization… shall be prima facie evidence that the act was done with the intention of relinquishing United States nationality.”

And just like that- you’re an expatriate. An enemy combatant.

It’s a brilliant circular proof, really. They do not have to have any evidence that you’re a terrorist when they accuse you and jail you indefinitely, because those rules are for citizens only. But the reason you’re not a citizen anymore is because you’ve been accused of being a terrorist.

But of course, there was still that annoying Geneva Convention treaty mucking things up. “Members of the regular forces of a State engaged in hostilities against the US” are just soldiers doing their job. Even an enemy combatant, it would seem, has rights. And so was born the Military Commissions Act. This delineates lawful and unlawful enemy combatants; the former being soldiers from legitimate armies, the latter being anyone else. Now, anyone who falls into that latter category would be subject to a whole new set of rules. And rule #1 “changes pre-existing law to forbid explicitly the invocation of the Geneva Conventions..” by unlawful enemy combatants.

There. Done.

But it does not stop there. The Patriot Acts had done a pretty good job of being just vague enough so that almost anyone could be considered an unlawful enemy combatant. But to be safe, the MCA defines it as “a person who before, on or after the date of the enactment [of the MCA] has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense.” In other words, an unlawful enemy combatant is anyone the President says it is. Our bible-thumping, non-reading, fear-mongering, myopic and arrogant President really can have any American citizen arrested and jailed at any time, and without any due process.

Ok, now I’m really mad.