What everyone must understand is that American politics doesn't work the way you'd think it would. Most people presume that government officials would never willfully withhold penicillin from men with syphilis just to see what would happen if the disease went untreated. It seems unlikely that officers would coerce enlisted men into exposing themselves to debilitating nerve gas. Few expected that President Obama wouldpreside over the persecution of an NSA whistle-blower, or presume the guilt of all military-aged males killed by U.S. drone strikes. But it all happened.
Really thinking about all that may make it easier to believe what I'm about to tell you.
It may seem like imprisoning an American citizen without charges or trial transgresses against the United States Constitution and basic norms of Western justice dating back to the Magna Carta.
It may seem like reiterating the right to due process contained in the 5th Amendment would be uncontroversial.
It may seem like a United States senator would be widely ridiculed for suggesting that American citizens can be imprisoned indefinitely without chargers or trial, and that if numerous U.S. senators took that position, the press would treat the issue with at least as much urgency as "the fiscal cliff" or the possibility of a new assault weapons bill or likely nominees for Cabinet posts.
It may seem like the American citizens who vocally fret about the importance of adhering to the text of the Constitution would object as loudly as anyone to the prospect of indefinite detention.
But it isn't so.
The casual news consumer cannot rely on those seemingly reasonable heuristics to signal that very old norms are giving way, that important protections are being undermined, perhaps decisively.
We've lost the courage of our convictions -- we're that scared of terrorism (or of seeming soft on it).
News junkies likely know that I'm alluding to a specific law that has passed both the Senate and the House, and is presently in a conference committee, where lawmakers reconcile the two versions. Observers once worried that the law would permit the indefinite detention of American citizens, or at least force them to rely on uncertain court challenges if unjustly imprisoned. In response, Senator Dianne Feinstein tried to allay these concerns with an amendment:
An authorization to use military force, a declaration of war, or any similar authority shall not authorize the detention without charge or trial of a citizen or lawful permanent resident of the United States apprehended in the United States, unless an Act of Congress expressly authorizes such detention.
You'd think the part about American citizens being protected from indefinite detention would be uncontroversial. It wasn't. But the amendment did manage to pass in the United States Senate.
Afterward everyone forgot about it pretty quickly. But not Charlie Savage. He's a journalist at The New York Times. If every journalist were more like him the United States government would be far less able to radically expand the president's unchecked authority without many people noticing.
Here is his scoop:
Lawmakers charged with merging the House and Senate versions of the National Defense Authorization Act decided on Tuesday to drop a provision that would have explicitly barred the military from holding American citizens and permanent residents in indefinite detention without trial as terrorism suspects, according to Congressional staff members familiar with the negotiations.
Says Adam Serwer, another journalist who treats these issues with the urgency that they deserve:
Of the four main negotiators on the defense bill, only one of the Democrats, Rep. Adam Smith (D-Wash.), opposes domestic indefinite detention of Americans. The Chairman of the Senate Armed Services Committee, Senator Carl Levin (D-Mich.), believes detaining Americans without charge or trial is constitutional, and only voted for the Feinstein amendment because he and some of his Republican colleagues in the Senate convinced themselves through a convoluted legal rationale that Feinstein's proposal didn't actually ban the practice. Both of the main Republican negotiators, House Armed Services Committee Chairman Howard "Buck" McKeon (R-Calif) and Senator John McCain (R-Ariz) believe it's constitutional to lock up American citizens suspected of terrorism without ever proving they're guilty.
There is a complication, as he notes: Civil liberties groups "aren't shedding any tears over the demise of the Feinstein-Lee amendment," because they objected to the fact that it protected only U.S. citizens and permanent residents, rather than all persons present in the United States. While I respect that principled stand, the more important thing is that this outcome puts us all at greater risk of having a core liberty violated, and that Senators McCain, Levin, and many other legislators suffer no consequences for failing to protect and defend the United States Constitution.
As Serwer puts it, "The demise of the Feinstein-Lee proposal doesn't necessarily mean that Americans suspected of terrorism in the US can be locked up forever without a trial. But it ensures that the next time a president tries to lock up an American citizen without trial -- as President George W. Bush previously tried -- it will be left up to the courts to decide whether or not it's legal."
Don't let the dearth of attention fool you — this is a scandal. Congress has turned its back on safeguarding a core Constitutional protection and a centuries old requirement of Western justice.
Rage, rage against the dying of the 5th.
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