The passage by the US Congress of a bill that among other things abolishes habeas corpus for terrorism suspects, allows interrogation methods that would normally be classed as torture, and allows the President to declare legal residents of the United States to be enemy combatants has produced a predictably partisan divide. All but two Senate Republicans voted for the Bill (Lincoln Chafee opposed and Olympia Snowe did not vote), and most pro-Republican bloggers seem to have backed it with marginal qualifications.
Those of us who fear and distrust the Bush Administration naturally find it easy to see what harm could be done with powers like this. The Administration’s supporters, on the other hand, seem confident that only the likes of David Hicks and Jose Padilla have anything to fear.
So, for those who support the bill, it might be useful to consider the standard thought experiment recommended to all who support dictatorial powers for a leader on their own side. Think about what the other side might do with these powers.
For concreteness, suppose Hillary Clinton* is elected in 2008** with a Democratic majority in Congress, and appoints someone like Janet Reno as her Defence Secretary, and that some rightwing extremist takes a potshot at her. Suppose that the unsuccessful terrorist turns out to have drifted widely through the organisations that Clinton famously called the Vast Right Wing Conspiracy, ranging from organisations with a track record of association with terrorism, like Operation Rescue and the militia movement, to those of the mainstream right, not engaged in violence, but prone to the violent rhetoric of people like Ann Coulter.
The bill, as it stands, would give the Clinton Administration essentially unlimited powers over non-citizens legally resident in the US (or anywhere else in the world) and over US citizens found, by the Clinton Administration, to have provided material support for those involved in the attack. Given unlimited powers of search and seizure, and unfettered use of “aggressive interrogations”, it would be easy to find evidence of some criminal offence even in cases of people who had no connection whatsoever with the original case. The Bush Administration has set plenty of precedents for the kinds of shifting jurisdiction that can keep people locked up for years without ever facing trial.
Moreover, but in the wake of a domestic terror attack, it would be just about impossible to resist a demand for additional powers, drawing on precedents established by Bush. Ambiguous provisions of the existing bill could be clarified in ways that negated most of the protections currently given to US citizens.
And, although I may be corrected on this, there doesn’t appear to be any notion of prohibiting retrospectivity or of a statute of limitations. There would be nothing to stop the Clinton Administration revisiting cases of the 1990s, and applying the newly broadened definitions of enemy combatant to anyone who, for example, made threats against the government or government officials over those cases.
* I’ve picked her since she seems to be the Democrat most hated and feared by Republicans, and has regularly been accused by them of grave crimes, up to and including murder. I have no reason to suppose that, in the real world, she’s anything other than the opportunistic centre-rightist she appears to be.
** A standard response is that the side introducing the powers does not plan to allow a change of government. I don’t think this is true – everything I’ve seen from this lot suggests that they are commonly incapable of thinking through the consequences of their own actions.