How Civil Liberties Die
In a bit of news that obviously isn’t important — it didn’t make the front page of the Washington Post — President Obama has withdrawn his veto threat for the National Defense Authorization Act, the bill that will allow the indefinite, undisclosed, military detention of American citizens, without the possibility of an independent review of their status.
But it’s only for al Qaeda members, so that makes it okay. I’m sure there will never be any mistakes, because I trust my government. That’s what all good Americans do.
Look, my countrymen. This is how civil liberties die:
Barack Obama has abandoned a commitment to veto a new security law that allows the military to indefinitely detain without trial American terrorism suspects arrested on US soil who could then be shipped to Guantánamo Bay.
Human rights groups accused the president of deserting his principles and disregarding the long-established principle that the military is not used in domestic policing. The legislation has also been strongly criticised by libertarians on the right angered at the stripping of individual rights for the duration of “a war that appears to have no end”.
The law, contained in the defence authorisation bill that funds the US military, effectively extends the battlefield in the “war on terror” to the US and applies the established principle that combatants in any war are subject to military detention.
“It’s something so radical that it would have been considered crazy had it been pushed by the Bush administration,” said Tom Malinowski of Human Rights Watch. “It establishes precisely the kind of system that the United States has consistently urged other countries not to adopt. At a time when the United States is urging Egypt, for example, to scrap its emergency law and military courts, this is not consistent.”
There was heated debate in both houses of Congress on the legislation, requiring that suspects with links to Islamist foreign terrorist organisations arrested in the US, who were previously held by the FBI or other civilian law enforcement agencies, now be handed to the military and held indefinitely without trial.
The law applies to anyone “who was a part of or substantially supported al-Qaida, the Taliban or associated forces”.
Who determines whether that limit has been respected? The executive. And who’s doing the holding? The executive. Will it have the incentive to say, “Gosh, we screwed up?”
No, it won’t. Every bit of self-interest to be found in the executive branch will weigh against admitting an error. And although such measurements are imprecise, I’m not sure that anybody has quite so much self-interest as the U.S. government’s executive branch.
That’s why James Madison and the other founders separated the powers of detention and review in the first place. It is always easier to find fault in someone else than to admit that you’re wrong. That’s a simple, obvious and — dare I say it — fairly conservative insight about human nature. It was true in the eighteenth century, and it’s still true now. Only we’re not living by it anymore.