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Extraordinary Times Produce Extraordinary Measures

A few years ago I heard the U.S. General then in charge of Northern Command—all armed forces in the U.S.—detail how they proposed to deal with terrorist operation within the United States. He seemed a reasonable and pleasant gentleman, but what he outlined was horrific. He described plans to deploy military forces of any necessary size within the country to hunt down terrorists. Even allowing for the lingering paranoia after 9/11, it was a haunting idea. One could easily see tanks trundling down streets, followed by detachments of infantry going door to door in an effort to root out the terrorist cells. The question I had then was "Who will have custody of detainees in such an operation?" No military likes to hand over detainees to civil courts which require real evidence of guilt that seldom survives hot pursuit. The General must have noticed my discomfort with the presentation, because he paused and said "Some people may have questions about what we are planning because of Posse Comitatus provisions, but we see no problem after recent changes to the law."

To me his comments were huge. Posse Comitatus was passed after the Reconstruction era, and generally limited the power of the military over the citizenry—except, as the law specified, if it was in support of the Constitution and by an Act of Congress. At the time I wondered what legal changes the general was referring to. With this week's passage of the National Defense Authorization Bill, we may now have them in place. The large omnibus military bill, S. 1867, contains provisions in sections 1031 and 1032 which include the homeland as part of the battlefield. These provisions, largely drafted by Senators Carl Levin and John McCain, actually specify "worldwide indefinite detention without charge or trial."

I would think that there is enough hazard here to look again at the provisions of the Constitution that were quite specifically written to protect Americans against arbitrary arrest and imprisonment without due cause and fair trial. The Constitution was designed to protect against search and seizure. Unfortunately, fear has paved the way for this present type of provision that veers more toward any number of extraordinary empowerments in totalitarian regimes than it does toward the clear spirit of the Constitution.

But my concern is not just for the Constitution, or civil liberties in particular.

The war on terrorism may involve any number of truly bad characters and be the stuff of invasion, IEDs, and a battle for the survival of a Western lifestyle; but at the end of the day it has everything to do with religion. The Islamic terrorists derive their ideology from their religious roots—and invite others to question whether anyone with that faith shares some of their sentiment. The recent and not properly defunct Christian Militia movement derives its ideology from their vision of a Christian nation. The reflex response of mainstream U.S. elements is to fall back on a mix of religious exceptionalism and national sanctity. The military more than most elements of society has shown a recent tendency to equate God with our national cause—a well-meaning enough tendency, but one that creates a huge blind spot at a time of religious confusion. My concern is that this new "blank check" for detention will one day translate religious ignorance or even prejudice into military actions. Of course I could be wrong, and this may be just another tweaking of the powers necessary to maintain law and order in dangerous times.

by Liberty Magazine Editor Lincoln E. Steed (Dec 6, 2011)