Keeping Mr. Franklin's Republic

“Well, Doctor, what have we got—a Republic or a Monarchy?”

“A Republic, if you can keep it.”

Benjamin Franklin in response to a query as he left Independence Hall on the final day of the Constitutional Convention.

Well, the Detainee Bill has passed. I had intended to dip into the vault for my next post and write about Social Security reform, but Shellshocked brought up some good points in the comments that I had intentionally, if reluctantly, left out. Upon reflection the topic is too important to let go.

Here's an interesting tidbit that I came across in reading about the Founding Fathers, who had a keen sense of history and the fragile nature of democracies. John Adams, of all of them, was most sanguine about the longevity of the American Experiment. At his most hopeful (his mood varied) he gave it 150 years before it became unrecognizably corrupt. For those of you keeping track, that would have been in the 1930's, but let's give ourselves the benefit of the doubt.

As it turns out a number of the Founding Fathers were witness to the first stages of decay in their own lifetimes. The next generation of politicians and leaders, reared in the aftermath of the Revolution, already showed signs of having forgotten the lessons that had been so self-evident to the Founding Fathers. It's not surprising, and I don't think it was to Adams, Jefferson and the rest, but I'm sure it was disappointing all the same.

What does this have to do with the Detainee Bill? Well, there are a few other provisions I didn't mention that are fairly difficult to swallow. The big one is the suspension of Habeas Corpus for certain individuals. From Wikipedia:

A writ of habeas corpus is a court order addressed to a prison official (or other custodian) ordering that a detainee be brought to the court so it can be determined whether or not that person is imprisoned lawfully and whether or not he or she should be released from custody. The writ of habeas corpus in common law countries is an important instrument for the safeguarding of individual freedom against arbitrary state action. (emphasis mine)

The Founding Fathers (FF) felt pretty strongly about this. 'Arbitrary state action', in the person of an executive, whether the President or a King, was something they were especially wary about. There had been plenty of it under the British kings, and ultimately that's why we don't have a monarchy ourselves. The FF had passionate disagreements over just how powerful to make the Executive branch, with one faction wanting an extremely weak one. Habeas Corpus was meant to be a safeguard against the excesses of an Executive run amok.

The Detainee Bill allows the President wider prerogatives than is being reported. Glenn Greenwald, a First Amendment lawyer and excellent blogger on legal issues, sums it up nicely:

Opponents of this bill have focused most of their attention -- understandably and appropriately -- on the way in which it authorizes the use of interrogation techniques which, as this excellent NYT Editorial put it, "normal people consider torture," along with the power it vests in the President to detain indefinitely, and with no need to bring charges, all foreign nationals and even legal resident aliens within the U.S. But as Law Professors Marty Lederman and Bruce Ackerman each point out, many of the extraordinary powers vested in the President by this bill also apply to U.S. citizens, on U.S. soil.

As Ackerman put it: "The compromise legislation, which is racing toward the White House, authorizes the president to seize American citizens as enemy combatants, even if they have never left the United States. And once thrown into military prison, they cannot expect a trial by their peers or any other of the normal protections of the Bill of Rights." Similarly, Lederman explains: "this [subsection (ii) of the definition of 'unlawful enemy combatant'] means that if the Pentagon says you're an unlawful enemy combatant -- using whatever criteria they wish -- then as far as Congress, and U.S. law, is concerned, you are one, whether or not you have had any connection to 'hostilities' at all."

How do they do this? By suspending Habeas Corpus, and also by restricting the right of the courts to review the process. The Executive branch will be able to, at its discretion, declare you an enemy combatant, a decision it won't have to defend or explain. It will then be able to hold you indefinitely without trial, during which time whatever procedures the President deems to be only 'minor' breaches of the Geneva Conventions can be used against you. No oversight. No accountability. Basically, it's just 'Trust me.' The arguments against this are legion, and I don't think I need to enumerate all of them. The FF would never have given this sort of unfettered power to the President; they were not ones to trust to the gentle nature of man. In reading through the Federalist Papers I am struck by the persistent theme of pragmatic cynicism that runs through them. This is precisely the sort of situation that led some to argue for a weak Executive in the first place.

Some, perhaps, are hoping that this will be challenged in the courts, and perhaps it will be. But a challenge does not ensure a repeal, and in this case, on 2 of the 3 offensive elements (Habeas Corpus and Judicial Review), there are good reasons to believe they are supported by the constitution:

On the Habeas Corpus issue, the Constitution is regrettably clear-cut. Article I, s.9:

The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

Congress has the power, therefore, to suspend the Writ.... The jurisdiction-stripping issue is more complicated... the basic summary is that Matt is correct that there is a strong Constitutional basis for Congress' actions.

While the Court may review the issue of whether the President can reinterpret the Geneva Conventions (it may be unconstitutional), the other two provisions are likely out of the Court's jurisdiction. Beyond that, you have practical issues due to the ideological tilt of the court. Matt Yglesias (referenced above) notes that the courts generally defer to the Executive branch on issues of National Security (the rubric under which this is all being put forth), and that in particular, with this set of conservative judges, there's no guarantee that they would rule against these items even if they thought they had jurisdiction. I'd love to be proven wrong on this, but I'm not holding out for that.

So, where does this leave us? I have to say, we aren't tending to Franklin's Republic very well. At the risk of sounding alarmist about this, I'm going to bring up the F-word: Fascism. Stick with me now, I know that sounds over the top. It can't happen here, you say. Well, Sinclair Lewis wrote a book of the same name, a political satire that shows just how such a thing could happen, here. He said, famously, "When fascism comes to America it will be wrapped in the flag and carrying a cross." I have seen this quote repeated numerous times in regards to this situation in the last week, most recently in the comments of my previous post. To be fair, the issue is neither patriotism nor religious belief, per se, but the blind obedience to a leader that can sometimes arise from either, and so I think the quote is apt. Let's see what Wikipedia has to say about a definition for Fascism:

A recent definition is that by former Columbia University Professor Robert O. Paxton:

* "Fascism may be defined as a form of political behavior marked by obsessive preoccupation with community decline, humiliation, or victim-hood and by compensatory cults of unity, energy, and purity, in which a mass-based party of committed nationalist militants, working in uneasy but effective collaboration with traditional elites, abandons democratic liberties and pursues with redemptive violence and without ethical or legal restraints goals of internal cleansing and external expansion."

Paxton further defines fascism's essence as:

* "1. a sense of overwhelming crisis beyond reach of traditional solutions; 2. belief one’s group is the victim, justifying any action without legal or moral limits; 3. need for authority by a natural leader above the law, relying on the superiority of his instincts; 4. right of the chosen people to dominate others without legal or moral restraint; 5. fear of foreign `contamination."

There's a lot more in the article and they note that definitions for fascism are "complicated and contentious". Still, the above definition serves as a pretty good working one and we can see some obvious parallels with where we are today. The President and his political allies routinely describe the threat of terrorism as being of equal or greater significance than any conflict we have faced in the past. The War on Terror is one that is so epic that we must rethink our deepest held beliefs - "9/11 changed everything." I think points 1 through 4 can be safely said to apply, to a greater or lesser extent. If we don't quite meet all the requirements, or don't meet them all fully - if we are entering fascism-lite rather than full-blown Fascism - is beside the point to me. That America should find itself in a position where any comparisons can be drawn, where the question can even be entertained, is cause for deep concern. Once started down that road it's not so easy to turn back.

This is difficult to accept; it seems too outlandish. I think it's important to realize that fascism can take many forms, some more overt, some less so. It doesn't always arrive in jackboots. I think it's arguable that we are entering fascism-lite, rather than hard fascism. As such, it's probable that many people will see little effect in their lives. That hardly matters; it's not a principled argument. You look to our own history and we have had our dalliances before, most recently in the '50s with McCarthyism. Not everyone was affected by it, but those who were were harmed greatly. It was and remains a shameful abrogation of our core beliefs. I can only hope that this too will pass. My honest fear is that there is a significant chance it won't and, in purely personal terms, I found this to be quite disturbing:

As we ponder how this torture legislation might develop in the future, it's probably a good idea to check out how the intelligence community of the United States sees the threat of terrorism developing in the future. From the NIE (National Intelligence Estimate):

Anti-US and anti-globalization sentiment is on the rise and fueling other radical ideologies. This could prompt some leftist, nationalist, or separatist groups to adopt terrorist methods to attack US interests. The radicalization process is occurring more quickly, more widely, and more anonymously in the Internet age.

No mention of rightist groups, which actually have attacked US interests, using terrorist tactics. I'm speaking of Timothy McVeigh and Eric Rudolph. No, it's the leftists to worry about, though. I'm a liberal, and I'm using the internet to communicate (not so anonymously) with you right now. You might think that it's quite a leap from that line in the NIE to being dragged off myself. It is, until this sort of thing becomes a little more prevalent and mainstream (the context is that the NY Times had printed photos of Donald Rumsfeld's vacation house. The publication of these photos had been given the OK by Rumsfeld and [more importantly, perhaps] the Secret Service, but that fact was glossed over. Radical conservative David Horowitz took issue with these photos being published, ostensibly exposing the Secretary to personal terrorist threats):

This was about beating the drum to eliminate the enemy. Horowitz set the rhythm:

Make no mistake about it, there is a war going on in this country. The aggressors in this war are Democrats, liberals and leftists who began a scorched earth campaign against President Bush before the initiation of hostilities in Iraq.

And pretty soon everyone else joined in, including commenters like this:

...since we've so civilized ourselves that it's highly unlikely that an angry mob with torches will show up on the NYT's doorstep.

Pity, that.

(Emphasis is mine. This is a relatively tame example. Dave Neiwert, linked above, blogs about hate speech and hate groups at Orcinus.) Just to be clear, the position here is that the NY Times, as the flagship of the liberal (Democratic) war on America, ought to be burned to the ground, as would have been done in better times. I intend to write a post eventually about the demonization of liberals and the very word itself, but this will have to suffice for now.

Perhaps an outside viewpoint will prove more compelling? I came across a discussion with a Ugandan who had emigrated to Canada. He had grown up during the time that Idi Amin rose to power in Uganda and he had an interesting perspective on what is occurring now in America. I would encourage you to read the whole thing. I found this quote, based on his experiences with an authoritarian regime, particularly telling:

My experience tells me this. I don't really know. But if I had to guess, I would guess that your government is doing the worst things you can possibly imagine. Liars are lying because they cannot tell the truth... I feel for you really. Because I don't think you have any idea how far down the road you already are.

In the end I think I can perhaps sum it up using a rule a friend related to me once: the Cynic's Law of Conservation:

"1 ton sewage + 1 tsp wine = 1 ton sewage
1 ton wine + 1 tsp sewage = 1 ton sewage"

In America, a little Fascism means it's not America anymore. To me it's not a question of whether we are too much like a fascist or dictatorial state. We should never have anything in common with either. This is another debate that should never even arise in America. In America, it should always be crystal clear; any such comparison should be laughable. We haven't been giving Mr. Franklin's Republic wine, of late, and I think we'll find she's ailing because of it.