The suicide pact myth

When the War on Terror kicked off after 9/11 (or more precisely a war on inconvenient terrorists), the George W Bush administration didn’t hesitate to throw the constitution into the trash can. I know people who think W looks good compared to Trump. He wasn’t.

Unconstitutional to be held indefinitely without trial? Screw that, send accused terrorists to Gitmo for life based on nothing but W’s declaration they were a threat (despite lies about how they were the worst of the worst, most of them were completely innocent)?

Rules against wiretapping without probable cause? Nah, just have NSA engage in warrantless eavesdropping in case they overheard something that might be a threat. Have the FBI infiltrate non-violent, non-terrorist groups in case they learn something (neither of these is a new problem).

Laws against torture? We broke them and then refused to prosecute the lawbreakers (admittedly that would have reached up to W and Cheney). Even under Obama there were no prosecutions (for a detailed, long report, click here).

One of the most annoying arguments to justify this was “the Constitution is not a suicide pact!” Sure, technically the Constitution says we have inalienable rights but clearly that wasn’t meant to protect obviously guilty, evil people such as Muslim terrorists. They want to destroy this country, it would be suicide to let them have fair trials and shit like that.

Case in point, former Democratic presidential contender Gen. Wesley Clark, said some years back he government should not only lock up people “who are disloyal to the United States as a matter of principle” it should take steps against people who are potentially disloyal: “We have got to identify the people who are most likely to be radicalized. We’ve got to cut this off at the beginning … there is a role for government to step in to prevent a dissenter from becoming an active shooter, or worse.” Clark subsequently insisted that when he said radicals should be “segregated” and “separated from the rest of society” he didn’t mean we should lock them up in concentrations camps but how else could this work?

This kind of thinking actually predates the war on terror. As long as I’ve lived in the U.S., law enforcement has been complaining that actually respecting people’s rights — no searches without search warrants, letting them have lawyers present when they’re questioned, etc. — was nothing but a get-out-of-jail-free card for the bad guys. For example, Ed Meese, Reagan’s attorney general, once said that giving suspects their Constitutional rights only protects guilty people; if you were innocent, you wouldn’t be a suspect. The cliches of the Obviously Guilty Villain Slipping Through Legal Loopholes goes back the high crime era of the late 1960s and never went away; the innocent guy who can’t get a hearing because of legal loopholes (he filed his appeal too late; evidence of innocence doesn’t justify a new trial [yes, that’s a common argument]) never became as big a figure.

9/11 made it worse by intensifying the fear that the security nanny state depends on to justify itself. Instead of a murderer getting out of jail to kill again, it’s a vast army of terrorists who will murder us in our bed if we don’t confine everyone who looks suspicious to Gitmo. The Constitution doesn’t apply when the enemy is so scary!

In reality, of course, the Constitution does apply. It applies to the worst of us — terrorists, neo-Nazis, the Klan, child rapists, serial killers. Everyone. It doesn’t matter whether you’re a horrible human being or a saint, innocent or guilty. It certainly doesn’t matter that you think “disloyal” thoughts if you’re not committing crimes based on them.

And that’s a good thing. As Justice Lewis Powell put it, it’s very easy for even decent governments to assume anyone who questions them is an enemy of the country. During the Bush years, right-wing pundits shrieked endlessly that liberals who objected to treating Americans Muslims as inherently suspicious were terrorist-supporting traitors. Giving legal advice to alleged terrorist groups on how to clear their names has been treated as “material support” for terrorism, unless it’s a terrorist group that has support in Washington.

Which, of course, is another problem, that governments are often selective in how they define disloyalty. Lots of non-Muslim Americans have been radical to the point of violence, even before the Trump coup: Timothy McVeigh, Eric Rudolph (anti-abortion Olympics bomber), the Unabomber, Kevin Harpham (planted a bomb at an MLK Day parade in Spokane) or Jerad and Amanda Miller (antigovernment radicals who went on a shooting spree a few years back), to name a few. I’m strongly skeptical that Clark would really advocate policies on disloyalty that would harass or segregate millions of white Americans.

Not that I think nonviolent, noncriminal right-wing dissent should be targeted — but neither should Muslim dissent. As long as someone’s not committing actual acts of war, crime or terrorism, targeting anti-American thinking is not only unconstitutional, it’s wrong. Ugly as I find the beliefs of the far right, they’re entitled to believe them and voice them. Ditto extremist Muslims, Christians, commies, Nazis, and whatever new brand of crazy the 21st century has waiting for us.

The Founding Fathers had hands-on experience dealing with a government that played hardball with the disloyal colonists — locking them up for their views, spying on them, searching their homes and suppressing dissent. One of the reasons for the Bill of Rights was to ensure the new federal government wouldn’t go down the same route. They were confident the Constitution wasn’t a suicide pact — we aren’t committing suicide when we respect it.

If this were 1776, Clark, W and many others would be on the side of the British Empire.