Earlier this week, Sen. Rand Paul (R., Ky.) responded to my column from last weekend, which criticized (a) his endorsement of enhanced constitutional protections for alien enemy combatants (the practical effect of his call for a return to pre-9/11 counterterrorism), and (b) his proposals to bar the government from subjecting to indefinite military detention al-Qaeda operatives who happen to be American citizens. Senator Paul’s rejoinder described my first claim as a misleading “strawman,” then rehashed his arguments on behalf of American citizens who join our enemies’ war against us. I’ve already addressed the “strawman” complaint. In this column, I undertake to refute Senator Paul’s arguments against law-of-war detention for American enemy combatants.
Advertisement
Those arguments fare no better in the retelling than they did when the Senate decisively rejected them last week. It is true, as Senator Paul says, that “civil liberties need defenders.” Those defenders, however, are not much good if they don’t even grasp how ordinary law-enforcement works, let alone how civil liberties have historically been subordinated to wartime national-security needs — and I refer here not to faux “needs” like abusive TSA groping of patently non-suspicious Americans, but to the real danger posed by treating traitorous enemy combatants as if they were mere criminals.
Unfortunately, Senator Paul, though a stellar medical doctor, is a law-enforcement dilettante. Have you heard the refrain, “If you see something, say something”? Most Americans appreciate that the authorities mean “something” that arouses reasonable suspicion. Not Senator Paul: He frets about an FBI publication that lists some traits that the public should be alert to — “possession of ‘Meals Ready to Eat,’ weatherproofed ammunition, and high-capacity magazines; missing fingers; brightly colored stains on clothing; paying for products in cash; and changes in hair color.”
Empirically, these traits have coincided with participation in terrorist plots. Acknowledging that unremarkable coincidence, however, does not extinguish our common sense — we also know that the presence of one, two, or even several of these traits may have nothing to do with terrorism. In his paranoia, though, the senator has convinced himself that one or two such indicators, standing alone, could result in American citizens’ being designated as enemy combatants and detained for untold years without trial or due process. The medical analogue would be that, upon spotting a single contusion, a doctor peremptorily diagnoses leukemia and commences aggressive chemotherapy.
Does Senator Paul seriously think the government jumps pell-mell from checking off an item or two on the FBI’s list to incarceration at Gitmo? I hope not. Palpably, the FBI’s point is that if a person spots something he reasonably thinks is suspicious, he should call the FBI. Pace Senator Paul, the agents do not respond by running right out to make an arrest — if, while racing up the Capitol steps, you’ve spilled peach-mango sherbet all over your nice white shirt, no one is going to confuse you with Ayman al-Zawahiri.
Gosh, I sometimes color my hair, I always pay for everything in cash, and, OH NO, I also occasionally purchase Meals Ready to Eat (with cash) and sometimes have stains on my clothing. That's four items from the list!
I believe, unfortunately, Mr. McCarthy places too much confidence in a government which has demonstrated irresponsible ineptitude (Fast and Furious) and the utter inability to think rationally (TSA indiscretion after indiscretion). While he attempts to dismiss the TSA's follies as in a class separate from capturing known terrorists, the idea of giving a government the right to designate and capture citizens at its discretion must take into account the level of responsibility government has demonstrated in other, similar areas.
I agree that treason is above and beyond normal crime, and I would also agree that it should be prosecuted accordingly. However, in defending the new detention authority, McCarthy assumes that rational, level-headed people would be following proper procedures in its enforcement. Taking into account what I've seen so far, I think that's too much to ask of the current administration.
Slindsley should more carefully reread the article. McCarthy anticipates and thoroughly addresses each of the points you raise. You may find you agree more than you realize.
"Gosh, I sometimes color my hair, I always pay for everything in cash, and, OH NO, I also occasionally purchase Meals Ready to Eat (with cash) and sometimes have stains on my clothing. That's four items from the list!"
And I'll bet the FBI has never detained you over those practices. If some vindictive person did report you to the FBI, the agents would likely have a talk with you and conclude that the report is without merit. They'd never even take you into custody. That's typically how law enforcement works on a day-to-day basis.
I would never equate TSA to law enforcement. I don't think the training or mission statements are similar at all. TSA seems to be more about giving people the sense of security than actual security. Fast and Furious shows that rank-and-file agents will become whistle blowers if things get out of hand too much--(are you listening 9/11 Truthers?)
Are there anecdotes of extreme folly in law enforcement? Certainly, however, we should not base public policy on extreme examples and hypothetical extreme scenarios, but what generally does occur.
Mr. McCarthy's psychotic rationalizations of the benevolence of any and all government actions is proof of the greatest flaw in his argument.
He insists that if one or two government employees were to review an unlawful detention they would infallibly see the error of their coworkers' ways and immediately correct the problem.
However, his own extremism in defense of government authority is merely evidence of the exact opposite. Human nature, the "thin-blue-line" or whatever hollywood calls the tendency of police solidarity, even in the face of wrongdoing will prevent most cases of abuse from being corrected -- if they are even heard about.
Moreover, I'd like to hear one empirical ancedote supporting the "statictical" traits that he claims to be evidence of terrorist plots.
The fact is that those are traits of people who have served in the military, play paintball, listen to punk rock music, or subscribe to belief that the economy is in a precipitous state.
Those are the actual traits the current government administration is profiling for because they hope for (rather than actually believe in, much less care to prevent) a forthcoming "McVeigh" type catastrophe that suits their political aims.
And the wall of unanimity by law enforcement personnel will see to it that whoever controls the tax money gets their way.
"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence."
I think it's really a disagreement over whether one believes that a secret military trial fulfills the rights granted to all accused in the above paragraph. Is it public? impartial? in the district in which the crime was committed? can they call witnesses? are they informed of the charges against them? These are all valid questions to be asking and the answer doesn't always clearly appear to be yes.
I think that is the main issue here. Too many people still believe that terrorism is a crime. Bin Laden was the subject of an arrest warrant on 9/11. How did that work out? Even 9/11 has obviously failed to wake people up to the fact that terrorism is an act of war. Or they have forgotten. Shameful in either case. Americans accused of crimes will have their due process in civilian court. Terrorism is another thing entirely.
No, the issue is that if you are suspected of terrorism, you wont even get a trial to demonstrate that the FBI got it wrong. You can be held without charge indefinitely.
Granted in times of "invasion and rebellion" the Constitution allows suspension of those rights (habeas corpus). But the Founders accepted this because there was an inherent check on this state power--the end of the rebellion or invasion.
However, when precisely will the War on Terror end? Have we been invaded? Is there a discernable rebellion?
Because those concepts are vague, so too is the power of the Executive. Essentially, the Executive power is (once again) expanding. This time taking the judiciary branches check away. And a citizens opportunity to demand to be charged or released...or to demonstrate that they are not guilty of terrorism.
What about Americans accused of terrorism? Does the accusation itself remove their rights, or should they have to be found guilty first? Accusation is easy, it happens all the time regardless of guilt.
Too many people jump on this war metaphor from purely emotional and historical reasons. You cannot wage a war against a tactic. We never waged war against Nazism, we did it against the Third Reich. Nazism still exists today. Terrorism is not a tangible regime. The government that harbored Osama Bin Laden is gone, and unfortunately, that is the best we can do. Guaranteeing we will never have another terrorist attack, ever, requires sacrifice of so many liberties and so many resources that taken together is tantamount of hundreds of terrorist attacks.
Terror-ism will never vanish. Just ask those who invoke "terra" to keep us in constant fear and enrich their clients.
Are drug offenses also an act of war? We are participating on a "War on Drugs." What about the crime of selling french fries, will I be considered an enemy combatant on the "War on Obesity" as well?
Mr. McCarthy erects yet another straw man. Half of this article deals with a hypothetical case of misplaced suspicion - the idea that the FBI will pick you up for ice-cream stains. Senator Paul's real concern is not an incompetent government, but one willing to abuse its power. McCarthy's response to that argument I don't find compelling: "It'll make the president look bad, so we don't have to worry he'll ever detain political opponents." Did such a thing prevent the pardon of Marc Rich, or keep the New Black Panthers in the sites of the DoJ? Just to name a few unpopular moves...
Also, McCarthy's article rebutting Senator Paul's straw man accusation was embarrassing for McCarthy, who I usually enjoy reading.
I agree w you Gregorio concerning Paul's real concern; that's really all its about and to add, I am troubled by why so many think more and more laws are the answer---its clear that competent/constitutional leadership is the answer as the bulwark against such threats are already in place. And that points to the the greatest threat...the usurpation of our true laws almost daily by progressive administrations since Pres. Wilson...
Reread the article. McCarthy directly addresses your assertion. He makes no claim of government perfection, to the contrary, he cites the many existing protections against an assumed level of imperfection, while plainly acknowledging that no amount of protections can ever completely rule out abuses or mistakes, just that they should (and do) make them very rare.
Several of the commenters suffer from the same flaws in reasoning that McCarthy so aptly exposes in his article; cherry-picking comments without regard to his carefully constructed and valid arguments; willful disregard for how he framed his realistic view of government (in)competence (thus exposing their own naïveté or ideological biases); and by arguing with irrelevant examples that pile new straw man false targets (which McCarthy could easily take down if he doesn't weary from the futility of responding to minds so closed to reason); and finally, by an utter disregard of the factual lack of any problem of the sorts they envision. One commenter's attempt to list "actual" examples cites cases in which those presumed guilty (in public opinion) were let off without trial or by parden as if they refuted McCarthy's assertion that fears of inappropriate detention are over-blown.
I found the 2 articles compelling, well and carefully constructed, and forceful. Paul, whom I generally respect and for whose fresh voice in congress I am grateful, should have the decency to respond more thoughtfully this time, conceding the points he so resoundingly lost on in this mini debate — abandoning the demagoguery and trumped-up fears of intrusion. There are too many real problems and instances of government intrusion upon our liberty to waist time on such ridiculous distractions.
I was merely citing examples of DC politicians acting in unpopular ways. We could also use Obamacare as an example.
I could easily imagine an Andrew Breitbart type hitting too close to home on a "sting operation" regarding a Fast and Furious style scandal and ending up languishing at least a few years in prison.
McCarthy also fails to point out why this legislation is even necessary in the first place. The actual wording is very troubling.
Paging Rich Lowry . . . Any chance you might exercise some editorial authority and stop Mr. McCarthy from further damaging himself and your increasingly infirm journal of opinion?
Here we have Eric Holder engaging in his usual serial perjury before Congress, CBS news (!) reports that e-mails show ATF fashioned "fast & furious" as a kind of Reichstag fire setup for the right which would produce the political momentum for a crackdown on gun ownership, and you find space to indulge the mad ramblings of McCarthy? Pathetic.
I think each of the commenters so far misses Mr. McCarthy's point.
I don't read him to be saying that all will be peachy and we'll all live happily ever after and the government will never make a mistake resulting in the loss of life or liberty of a citizen. But, I'm not a utopian and I don't read Mr. McCarthy as one either. The government, federal, state, and local, will make mistakes and human beings in government will abuse their power and these mistakes and abuses of power will result in the loss of liberty and life of which we are concerned. Nothing we can do will stop or prevent every instance of that.
What I read Mr. McCarthy to be saying however is that the processes and procedures in place under the law at this time and under the proposed legislation (which operates within the framework of the law) are sufficient such that a vast number of people would need to be either in on the conspiracy or fail to spot the mistake. People get arrested and charged all the time and then eventually released. You can also sue anyone you want any time, but that doesn't mean you'll get a judgment against them. There's no guaranty against these bad things happening to good people.
Moreover, I will never buy that the rank and file agents, prosecutors, judges, and others necessary for such a worst case scenario to occur and continue would not stand-up, speak out, and cause the scenario to come to an end. If you do, no amount of words in any document will be enough protect you.
And, I also read Mr. McCarthy to be writing that anything more than this will hamstring our government from carrying out one of its actual legitimate functions: protecting us from enemies foreign and domestic.They're out there (and in here), folks.
Mr. McCarthy wrote, "In the real world, our freedoms are an inheritance unavoidably rooted in the capacity of military force — not legal processes — to overcome hostile foreign powers. We sensibly restrain military action, including the power to detain Americans who abet our foreign enemies, in order to reduce the chance of error and abuse. But we do so mindful of Madison’s brute observation that, in the final analysis, “the means of security can only be regulated by the means and danger of attack” and will “be ever determined by these rules, and by no others.”"
This is exactly what I realized after a year of law school Constitutional Law courses and why I became a U.S. Marine.
Conservatives are all about small government because they don't trust it's effectiveness.
Yet when it comes to depriving citizens of the most basic right to due process, we are suddenly totally confident that the government will always make the best decisions?
