07 December 2005

All Is [Un]fair in War

A couple of recent news items have reinforced my conclusion that the so-called "war on terror" is little more than an excuse for issuing jackboots and spiked helmets to Administration favorites. On the one hand, we have the government's decision to charge Jose Padilla with offenses that were at most remotely related to his dangerousness that "justified" detention without access to counsel. The Fourth Circuit has not been too pleased with this development, as it is a tacit admission that perhaps—just perhaps—the "national security" justification pressed so hard by the government wasn't entirely justified.1

Then there is the most-advanced actual criminal prosecution utilizing the so-called Patriot Act—a prosecution that failed miserably. Admittedly, there remain sixteen counts (between two defendants) on which there was no verdict; however, the jury acquitted four defendants on over sixty counts. Without hearing evidence from the defense, which relied upon attacking the government's own presentation and presented no evidence.

I have no sympathy whatsoever for al-Arian's views (and not much, if any, more sympathy for radical Zionist views, either). I put my butt on the line every day as a military officer defending a system that gives those with unpopular—even reprehensible—viewpoints the right to air them, the right to associate with others who share them, and to make whatever grandiose plans for advancing them that they can that do not result in objectively unlawful activity. The government has tried to deemphasize this aspect of the case against al-Arian. I do think there was probably something more unsavory going on than mere exercise of First Amendment rights. However, it was disingenuous—and possibly in bad faith—for the government to pretend that there was no element of mere civil disobedience in al-Arian's little club at all. That, however, is precisely what a prosecution under the grossly misnamed Patriot Act does; and that is precisely what patriotism is not.

There are terrorists out there (or over here). One must take measures against them. However, the real "suicide pact" is forgetting what makes us different from the terrorists: That we accept, and indeed encourage, dissent. Contrast that with the Supreme Court's refusal to reconsider the wretchedly wrong "money is speech" dictum in Buckley v. Valeo when it had a chance to do so, and one must begin to wonder where the real threat to the Constitution is coming from. Is it our foreign enemies… or the domestic ones?

  1. I make no accusation of bad faith here. I suspect that, as is usual in these matters, the decisionmakers on that case simply didn't have all of the information necessary, whether due to foggy intelligence or overenthusiastic security compartmentalization. I'm saving the accusation of bad faith for later.