Speaking of indefinite detention and civil liberties...

Senator Dianne Feinstein (D-Calif.), chairman of the Senate Intelligence Committee, today introduced the Due Process Guarantee Act of 2011, legislation that states American citizens apprehended inside the United States cannot be indefinitely detained by the military.

The Due Process Guarantee Act of 2011 amends the Non-Detention Act of 1971 by providing that a Congressional authorization for the use of military force does not authorize the indefinite detention—without charge or trial—of U.S. citizens who are apprehended domestically.

The Feinstein bill also codifies a “clear-statement rule” that requires Congress to expressly authorize detention authority when it comes to U.S. citizens and lawful permanent residents. The protections for citizens and lawful permanent residents is limited to those “apprehended in the United States” and excludes citizens who take up arms against the United States on a foreign battlefield, such as Afghanistan.

Feinstein said: “The argument is not whether citizens such as Yaser Esam Hamdi and Jose Padilla—or others who would do us harm—should be captured, interrogated, incarcerated and severely punished. They should be.

“But what about an innocent American? What about someone in the wrong place at the wrong time? The beauty of our Constitution is that it gives every citizen the basic due process right to a trial on their charges.

“Experiences over the last decade prove the country is safer now than before the 9/11 attacks. Terrorists are behind bars, dangerous plots have been thwarted. The system is working.

“We must clarify U.S. law to state unequivocally that the government cannot indefinitely detain American citizens inside this country without trial or charge. I strongly believe that Constitutional due process requires U.S. citizens apprehended in the U.S. should never be held in indefinite detention. And that is what this new legislation would accomplish.”

via feinstein.senate.gov

Let's see where this goes.

Obama, civil liberties, and security

Over at No Left Turns, Bill Voegeli offers a thoughtful response to my Philly Post piece decrying President Obama's signing of the NDAA. I suggested Obama had betrayed the cause of civil liberties; Voegeli sees it a bit differently. If I'm reading it correctly, his argument is two-fold:

• The now-bipartisan embrace of once-unthinkable security measures represents a considered response to the terror threat that the United States faces. "National security is a hard, grave business. Candidates who spoke as glibly as bloggers and editorialists about respecting boundaries regardless of the consequences become far less categorical when they're in important positions of national power and must confront just how horrific those consequences might be."

• Secondly, that we're at war, and sometimes during war the Constitution is set aside in order to save it. "Drawing the lines and rightly understanding the nation's exigencies is not merely a post-9/11 problem. The most famous example is Abraham Lincoln suspending the writ of habeus corpus - first by executive order, later according to congressional enactment - as secession and civil war consumed the nation in 1861. He defended his actions in a message to Congress: 'The whole of the laws which were required to be faithfully executed, were being resisted, and failing of execution, in nearly one-third of the States. Must they be allowed to finally fail of execution, even had it been perfectly clear, that by the use of the means necessary to their execution, some single law, made in such extreme tenderness of the citizen's liberty, that practically, it relieves more of the guilty, than of the innocent, should, to a very limited extent, be violated? To state the question more directly, are all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one be violated? Even in such a case, would not the [president's] official oath [of office] be broken, if the government should be overthrown, when it was believed that disregarding the single law, would tend to preserve it?'"

Let's take the second point first. More than a decade after 9/11, it seems apparent to me that a "war" framework for dealing with terrorism badly serves the United States and its citizens. War, after all, is an emergency: Lincoln had a sense that the emergency would end when he set aside habeas corpus; FDR had the same sense when he gave Nazi saboteurs a kangaroo trial during 1942 and confined Japanese-Americans to prison camps.  Sooner or later, the war would be over—and eventually the excesses undertaken in the national defense would recede into a half-embarrassing history generally understood to be at odds with the longer, stronger narrative of American liberty. It's a pattern that's repeated itself over and over again throughout the country's history.

America has spent more days at war with Al Qaeda than we did enmeshed in the Civil War and World War II combined. There is no end in sight. I have no reason to believe that the "emergency" represented by the War on Terror will end in my lifetime. So the "temporary" excesses—the setting aside of certain Constitutional safeguards—doesn't appear to be temporary at all. It's the new normal, one that is a clear departure from 200 years of an American journey toward greater-liberty.

What's remarkable about the NDAA and its expanded detention powers for government is that it comes at a time when Al Qaeda has essentially been defeated. To use Voegeli's Civil War reference, it's as though General Robert E. Lee had surrendered at Appamattox—and then the federal government decided it was really, really time to get serious about cracking down on insurgents. And it's a further indication that the war will go on forever, even when the men and group that initiated have vanished from both the earth and operational effectiveness.

But there are, clearly, still bad men out there who will try to do bad things to America. Given the current dynamics of American politics and law, as long as there is even one non-state terrorist attempting to harm the United States, we remain at war. Our laws and policies—our Constitution—can be held hostage by a few people with bad intent. That's where we're at. Whatever the deficiencies of the "crime" approach to terrorism, it at least didn't trap us in an unending emergency. To use an old trope: "Tell me how this ends." If you can, I might be more sympathetic to the excesses, knowing eventually they'll end. But nobody really can, and I'm not.

Which leads us to the behavior of the political establishment.

One might see the bipartisan consensus for the NDAA as proof of its wisdom. But one might also take a look at how political incentives have developed since 9/11, where even unsuccessful attack attempts have been used as proof of a president's supposed weakness. The president and Congress have decided they have more to lose, politically, by not being "tough" than they do by being steadfast about America's history of civil liberties. That, of course, means they've judged the American public is more interested in safety than civil liberties.

At some point, I guess, I have to accept that. My viewpoint on these matters probably isn't the majority viewpoint.

But I remain irritated, to say the least, that there are many people in American politics who see creeping tyranny in EPA regulations but are happy to support indefinite detention. Kim Jong-Il, after all, isn't reviled because he made North Koreans fill out paperwork on toxic chemical spills.

And given the eternal nature of the War on Terror, we shouldn't fool ourselves that we're on the same path of liberty that Americans have imperfectly been trodding for a couple of centuries. We're choosing a slightly different path, in the name of security. Most of us might not even notice the difference in our daily lives—we probably won't see the differences except in occasional Pulitzer-winning newspaper stories about how "other" people have been made to suffer—but it will be different all the same. We're not setting aside the Constitution and law in order to save them; we're simply setting them aside.

Maybe we'll be safer. We'll certainly be less free. When the next attack succeeds—somewhere, eventually, it will—the laws will be tightened even further. And so on and so forth, with cries of "freedom" escaping our lips the whole time, even as we forget what we once thought that word meant.

Updated: I misspelled Voegeli's name in the first edition of this post. My apologies.

Upside to austerity?

Britain and the US, close allies who are both victims of the debt crisis, will today agree to scale down their military capability and back away from the kind of armed intervention they have enthusiastically supported in recent decades.

That will be the clear message from the first meeting between Philip Hammond, the UK's new defence secretary, and Leon Panetta, his opposite number in the Pentagon, officials say. The Washington meeting will also be the first opportunity for Hammond to confront the US over particular British concerns, notably the availability and soaring cost of the US-made joint strike fighters destined for Britain's new aircraft carrier, HMS Prince of Wales.

As the US plans to withdraw more troops from Europe in what is building up to be a turning point in transatlantic relations, Hammond will also lambast European members of Nato for not pulling their weight.

With Panetta expected to announce sweeping cuts in his defence budget, Hammond will point to similarities in the US and UK economic situations, according to officials. "Without strong economies and stable public finances it is impossible to build and sustain, in the long-term, the military capability required to project power and maintain defence," he is expected to tell the Atlantic Council thinktank.

via guardian.co.uk

There may be some overlap between "projecting power" and "maintaining defense." But they aren't necessarily the same thing. Maybe there's an upside to austerity.

Today in inequality reading: Horatio Algier moved to Denmark

At least five large studies in recent years have found the United States to be less mobile than comparable nations. A project led by Markus Jantti, an economist at a Swedish university, found that 42 percent of American men raised in the bottom fifth of incomes stay there as adults. That shows a level of persistent disadvantage much higher than in Denmark (25 percent) and Britain (30 percent) — a country famous for its class constraints.

Meanwhile, just 8 percent of American men at the bottom rose to the top fifth. That compares with 12 percent of the British and 14 percent of the Danes.

Despite frequent references to the United States as a classless society, about 62 percent of Americans (male and female) raised in the top fifth of incomes stay in the top two-fifths, according to research by the Economic Mobility Project of the Pew Charitable Trusts. Similarly, 65 percent born in the bottom fifth stay in the bottom two-fifths.

By emphasizing the influence of family background, the studies not only challenge American identity but speak to the debate about inequality. While liberals often complain that the United States has unusually large income gaps, many conservatives have argued that the system is fair because mobility is especially high, too: everyone can climb the ladder. Now the evidence suggests that America is not only less equal, but also less mobile.

via nytimes.com

Ta-Nehisi Coates: Ron Paul is the new Louis Farrakhan

As surely as Ron Paul speaks to a real issue--the state's broad use of violence and surveillance--which the America's political leadership has failed to address, Farrakhan spoke to something real, something unsullied, which black America's political leadership failed to address, Both Paul and Farrakhan, in their glamour, inspired the young, the disaffected, the disillusioned. 

To those who dimly perceived something wrong, something that could not be put on a placard, or could not move the party machine, men such as this become something more than political operators, they become symbols. Substantive charges against them, no matter the reasons, are dismissed. The movement they represent means more. But as sure as the followers of Farrakhan deserved more than UFOs, anti-Semitism and conspiracy theories, those of us who oppose the drug-war, who oppose the Patriot Act deserve better than Ron Paul 

via theatlantic.com

I will defend to the death your right to burn the American flag

...but seriously, Occupy Charlotte people, you convince exactly nobody of the rightness of your cause when you do so. That's not effective dissent; it's masturbatory radicalism: It might make you feel good, but other people think it's icky and it's completely unproductive. Yeesh.

What about Ron Paul?

A libertarian friend of mine is very disappointed in me for semi-endorsing Mitt Romney for the GOP nomination over Ron Paul. After all, he points out, Paul's anti-imperialistic views of the presidency—both in war-making and in executive power, generally—are closer to my own than any other GOP candidate. Heck, on those two areas, I like his views better than President Obama.

So why can't I support Paul for the GOP nomination? Easy. I think he'd be a disaster for the country.

Put aside his dubious explanations for the racist newsletters. Put aside the fact that he'd have nearly zero support for his agenda in Congress. Let's look at the agenda itself. (I take all the following statements from his website.)

He'd cut $1 trillion in government spending in the first year of his presidency, on the way to a balanced budget by Year Three. The debt is a problem, I agree, but I believe yanking so much money out of the economy would probably deepen our the Great Recession into something more of a Depression.

He'd eliminate the income, capital gains, and inheritance taxes on his way to keeping the government in its strict Constitutional limits. (Also, to make it easier for you to buy silver and gold coins: His website actually uses that as a rationale for eliminating the capital gains tax.) Maybe that would be replaced by a single flat tax, but mostly he'd eliminate. I'm not really sure how we'd pay for the government that is left.

He'd repeal the gasoline tax. How would we pay for roads?

He'd make it harder for unions to organize.

He'd "abolish the welfare state."

He'd make it impossible to rationally deal with the illegal immigrants present in the United States. (UPDATE: Specifically, he wants "no amnesty" for such immigrants. Which sounds fine, I guess, except the U.S. isn't going to deport the 11-12 million such folks who are here. Combine that with the abolishment of birthright citizenship, below, and Paul's policy would create a permanent underclass of non-citizens doing our menial work without the protections or responsibilities of citizenship. Yuck.)

He'd abolish birthright citizenship for the sons and daughters of immigrants.

So I generally—but warily—agree with Paul's instinct to be restrained in the use of American force abroad. But my impression of his overall agenda is that it would produce a crumbling country, meaner and more Darwinian. I'm not a libertarian, even though I have those instincts in certain areas. Some of what I've described above sound like features to my libertarian friend, I'm sure; it sounds like bugs to me.

If effective, Ron Paul would be a disaster. But given the unlikelihood of cooperation with Congress, I think he'd be merely ineffectual. Either way, why would I support him?