T his week the Senate has been debating S. 1867, The National Defense Authorization Act, co-sponsored by John McCain and Carl Levin. Defenders of the legislation claim it is a codification of ten years of counter-terrorism policy in the United States. Detractors claim the legislation would allow the military to arrest and indefinitely detain anyone suspected of terrorism, including an American citizen.
According to a Washington Post editorial written by the co-sponsors, the legislation does not expand “the authority under which detainees can be held under custody.” National Review’s Andrew McCarthy claims S. 1867 “does not change existing laws in any meaningful way.” But fellow supporter Lindsey Graham claimed the bill would allow indefinite detention “American citizen or not” because the bill will “basically say in law for the first time that the homeland is part of the battlefield.”
Which leads to an interesting question: shall we just abolish civil courts? If the objective is to get a conviction we are certainly more likely to get guilty verdicts in military courts so why not abolish civil courts and try everyone at Guantanamo Bay where a guilty verdict is almost assured?
The way to think about this issue is to revisit two events from earlier this year: the extrajudicial assassination of American-born Muslim cleric Anwar al-Awlaki and the assassination attempt on Arizona congresswoman Gabrielle Giffords.
When the suspected terrorist al-Awlaki was killed in a drone strike there wasn’t very much outrage about the killing. Part of it was also due to the narrative that al-Awlaki inspired “Underwear Bomber” Umar Farouk Abdulmutallab and Fort Hood shooter Nidal Malik Hasan to commit their crimes. The question was whether al-Awlaki, an American, was too dangerous to be afforded constitutional rights of due process. Months later the Obama administration is still declaring “U.S. citizens do not have immunity when they are at war with the United States.”
On January 8 Gabrielle Giffords was targeted for murder by Jared Loughner, a troubled young man exhibiting numerous symptoms of insanity, who indeed succeeded in killing six others.
Almost immediately, New York Times columnist Paul Krugman diagnosed in his column “Climate of Hate” that the toxic political environment pushed Loughner off the edge to commit murder. In the process he personally indicted GOP functionaries Sarah Palin and Glenn Beck of using “eliminationist rhetoric,” an unambiguous reference to Nazi Germany. He also referenced an internal Department of Homeland Security report warning of an increase in “right-wing extremism” during a Democratic administration.
After the dust settled and it was plain to see that Loughner was a very politically confused man that almost certainly was not inspired by Palin, Beck, or any other identifiable right-wing personality. People wanted to believe there was a connection between Loughner and conservatives because it validated their prejudices.
But what if Loughner said he had been inspired by them? The DHS report labeled right-wing groups as potential terrorists produced no small amount of chagrin from conservatives.
Would the Republicans supporting S. 1867 suddenly find the legislation constitutionally dubious if the Obama administration claimed it had the prerogative to target Palin or Beck for assassination because their rhetoric had been irresponsible enough to “inspire” Loughner to commit murder?
It may not seem fair to compare al-Awlaki to Beck and Palin. But is there any distinction if the federal government does not have to indict, present evidence, or convict?
There’s reasonable evidence that al-Awlaki inspired Abdulmutallab and Hasan. What if Loughner admitted he had been inspired by Beck and Palin? After all, Senator Graham called America a battlefield and all these events took place on American soil. How could any of us denounce Obama sending drones to the studios of GBTV or Wasilla in this hypothetical scenario?
Remember when new front-runner Newt Gingrich said this at the last Republican debate:
“[t]he key distinction for the American people to recognize is the difference between national security requirements and criminal law requirements.
“I think it’s desperately important that we preserve your right to be innocent until proven guilty, if it’s a matter of criminal law.”
If America is a battlefield, will it still exist?