Via Brad de Long I recently saw this post from Jim Henley on the failure of Appeal Courts to impose significant constraints on the US government’s policy of secret detention of terrorist suspects. Henley says

For those of you reading these words I have one request:

COULD I GET A LITTLE ALARMISM HERE, PLEASE?????

What has the appeals court authorized?

Secret detentions.

Please say those words aloud. “Secret detentions.” Now use them in a sentence:

The US government engages in the practice of secret detentions.

The US government has broadly asserted its right to engage in the practice of secret detentions.

A federal appeals court has affirmed that the US government may engage in secret detentions.

The biggest single step in this regard is the creation of the category of “enemy combatants” applied both to people taken prisoner in Afghanistan and elsewhere (for example Pakistan), allegedly in the course of the war aagainst terror. More significantly the category has been applied to Jose Padilla, a US citizen arrested in the United States allegedly after returning from a meeting with Al Qaeda.

Until recently, I haven’t been too alarmed about all this. It seemed likely that as with most wartime excesses, the Administration would moderate its claimed powers, and, if not, that the courts would constrain them. In particular, I thought that the actions in the Padilla case would ultimately be declared illegal and that the Administration would be happy enough having had a couple of years to operate outside the normal limits.

But this optimistic view looks increasingly untenable.

The Administration has been winning most of its cases in court and yesterday cancelled criminal proceedings against a suspect who’d been in custody for two years and declared him an enemy combatant. The suspect in this case is a Qatari student, who was arrested in the United States.

It also appears that the threat of enemy combatant status is being used to secure guilty pleas in terror cases, and to deter people held without trial in other ways (for example, as material witnesses) from pursuing legal remedies. Once the authorities get used to exercising this kind of power routinely, it’s going to be very difficult to persuade or force them to give it up.

Thinking about the consequences, suppose that the Clinton Administration had asserted these powers in the wake of the Oklahoma City bombing. Any of the thousands of members of anti-government militias could reasonably be classed as an “enemy combatants”. The same is true of groups like the Weather Underground in the Nixon era. The only feature of the Padilla case that does not apply to these groups is that they are not associated with a foreign enemy and that doesn’t appear to be critical (in any case, its arguable that the Weather Underground were supporting the VietCong). In both cases, there’s no easy dividing line between active “enemy combatants”, material supporters and the much larger class of radical opponents of government policy. If these powers become well-established, it’s hard to believe they won’t be used on a large scale sometime in the future.

Is all this relevant to Australians? Undoubtedly, yes. The Administration claims the right to seize anyone, anywhere, and has already exercised this right in relation to two Australians. The US courts are considerably less protective of foreigners, including legal visitors to the United States, than of American citizens.