Alien and Sedition Acts Return

I fear that this administration has effectively reenacted the much-hated Alien and Sedition Acts of the early 19th century.  Using the "war" on terror as its excuse, the Bush administration is rapidly expanding its ability to grab and hold people indefinitely without charge or trial.  This is not a huge surprise -- many presidents have tried to do similar things in time of war or in reaction to internal security threats.  Much of the Patriot Act was originally proposed by Bill Clinton, after all.

What is new is that the courts and the opposition party are letting him get away with it.

The Sept. 9 court ruling concerning Jose Padilla, an
American citizen locked up in a military prison in South Carolina for
three years, is a case in point. The ruling should send shockwaves
through the American public since the decision seriously undermines
constitutional rights.

A federal appellate court ruled that constitutional rules
that apply to the police do not apply to military personnel.... The federal
government has been given a green light to deprive Americans of their
rights to due process. No arrest warrants. No trial. No access to the
civilian court system. You may not be able to see it on television, but
this court decision is the equivalent of a legal hurricane-and it is no
exaggeration to say that this is a level 5 storm with respect to its
potential havoc for civil liberties.

Federal agents arrested Padilla at O'Hare International
Airport in Chicago just after he arrived on a flight from Pakistan. The
feds claim that Padilla fought against U.S. troops in Afghanistan,
escaped to Pakistan and returned to the United States to perpetrate
acts of terrorism for al-Queda. Instead of prosecuting Padilla for
treason and other crimes, President Bush declared Padilla an "enemy
combatant" and ordered that he be held incommunicado and interrogated
by military and intelligence personnel.
Padilla has not yet had an opportunity to tell his side of
the story. For two years the government would not even permit Padilla
to meet with his court-appointed attorney, Donna Newman. Newman has
nevertheless defended Padilla's rights, arguing that the president does
not have the power to imprison Americans without trials.

Bush has not made any dramatic televised address to the
country to explain his administration's attempt to suspend habeas
corpus and the Bill of Rights, but his lawyers have been quietly
pushing a sweeping theory of executive branch power in legal briefs
before our courts.

I actually am fairly radical on this - I don't think the fact that he is a citizen or not should even make a difference.  Citizenship does not confer rights, and governments don't hand them out -- rights are ours based on the fact of our existence.   While some of the rules of due process may change for non-citizens, just the fact that they are from a different country doesn't give us the right to lock them in a room indefinitely.  This is why I support free and open immigration - there is no reason why a person born in Mexico should have fewer rights to contract with me for a job or a home than an American citizen.  The right to associate, to contract, to agree on wages, to buy a particular home, all flow from being human, not from the US government.

So I wouldn't support Padilla's treatment if he was a Iranian citizen and I certainly don't support it for an American.  Yeah, I know, he may be a bad person.  But we let bad, dangerous people out of jail every day.  Our legal system is structured based on the premise that it is worse to lock an innocent person away than let a guilty person go free.  Its a trade-off that we have made for hundreds of years and I for one am pretty comfortable with.

I also get the argument that we are at war -- in Iraq.  If someone is captured in Iraq, that may be another story.  But Chicago is not in the war zone, by any historic definition of that term (unless you want to use WWII Japanese internment as a precedent, which I doubt).  Just calling it a "war on terror" does not make Chicago a war zone any more than declaring a "war on drugs" makes Miami a war zone where suspected drug users can be put in jail without trial.  Perhaps if Bush could get Congress to officially declare war, he might have firmer legal footing, but I don't think that's going to happen.  As I wrote here:

Yes, I know that there is a real risk, in fact a certainty, that
dangerous people will be let out on the street.  But that is the bias
of our entire legal system - the "beyond a reasonable doubt" standard
and other protections of the accused routinely put bad people back on
the street.  We live with that, because we would rather err in putting
bad people back on the street than in putting good people behind bars
for life.  Give them a trial, deport them, or let them go.  Heck,
airdrop them into Paris for all I care, but you have to let them get
due process or go free.

Sure, terrorists are using our free and open society against us, and its frustrating.  But what's the alternative?  I just don't think there is a viable alternative which says that we should destroy our open society in order to save it.  We've got to learn to be smart enough to work within the rules, and it may be that we have to expect that in the future our freedom comes at some statistical increase in the danger to ourselves (by the way, isn't that exactly the trade-off we have enforced on Iraq, without even asking them -- citizens are much freer that under Saddam but at  an increased risk of terrorism?).

By the way - where the hell is Congress?  Stop grandstanding in confirmation hearings and get to work reigning this stuff in.


  1. Max Lybbert:

    While I agree that citizenship should have nothing to do with legal rights, I have to disagree in the case of Padilla. Padilla was picked up in the airport as he arrived from Pakistan. Padilla has been given the ability to challenge his detainment (per the Supreme Court case Padilla vs. Ashcroft). Padilla made a statement in the most recent court appearence that makes it clear he's no innocent man.

    Padilla hasn't been charged with a crime because he's more of a prisoner of war than a criminal. He's called an unlawful combatant because his role in the war is more like a spy or sabator, not a uniformed soldier. As such he's not entitled to a pack of cigarettes or his weekly paycheck under the Geneva Conventions.

    But, yes, I agree that the simple fact he's a US citizen shouldn't confer any extra rights that any Afghani picked up in a US airport on a trip from Pakistan should have.

  2. Matt:

    I have to wonder why Bush and company aren't scared of repercussions from this. Given how much his political opponents hate him and everyone who supports him, isn't he worried that the GOP might lose the White House one day?

    After all, now that "anyone anywhere can be locked up forever without access to counsel, just as long as the president says he's an 'enemy combatant'...oh, and 'enemy combatant' is defined as meaning whatever the president wants it to mean on a moment-to-moment basis, since neither the policy nor any specific detention case requires the presentation of a definition or evidence of any kind" is the apparent law of the land, the only thing standing between America and the mass arrest of people with out-of-favor political beliefs is the indulgence of the occupant of the White House.

  3. Tom:

    And just who creates those rights that are "ours because of the fact of our existence"? I've never been able to figure that one. Certain rights may be desirable in the abstract, but in reality rights are won and kept through politics and war. I want my government to protect my rights, as an American, from the likes of Padilla. My rights, as an American, are to live, to live without undue governmental restraint, and to be able to pursue "happiness." My rights are more secure, not less, when govenment protects me from a Padilla. He wasn't imprisoned on a whim. If he had been, I might share your indignation.

  4. Max Lybbert:

    /* And just who creates those rights that are "ours because of the fact of our existence"?

    Thomas Jefferson said our Creator. The UN is a little more murky and implies that people should just treat each other right because that's the right thing to do. Either way, there have always been limits built into constitutional rights, and true "human rights" are far more limited than many people would like to believe.

    That is, yes, you have a basic human right to not be brutally whipped each day. There's no limit on that right. OTOH you do not have a human right to have a legally-sanctioned marriage to whomever you wish. You may have a legal right, or a moral right, but not a human right (cf. Canada's recent debacle with trying to define gay mariage as a human right).

    And while you have a constitutional right to free speach, the government has always had the ability to limit what speech is protected. Yes, I know that's a sore spot for Coyote. However, it's also a legal fact of how things are, not how things ought to be.