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| Law and Terror |
| 2006-10-20 |
| From an article by Kenneth Anderson, Research Fellow at the Hoover Institution and Professor of Law at American University, published in the new issue of Policy Review. .... The administration remains caught in the grip of a lawyerly clique that places an abstract ideology of executive discretion above the war on terror and is willing to lose intragovernmental battles about how to conduct the latter over and over again for the sake of the former. The administration therefore brings only minimal legislation to Congress, preferring to bet on arguments of executive power that are rebuffed in the courts. The Supreme Court gives some indication that it is willing to lessen its role in what amounts to foreign policy and war, provided the two political branches come together to give the democratic imprimatur of legislation to counterterrorism policy and to the inevitable trade-offs between national security and civil liberties. Congress, however, has little desire to exert itself legislatively in these matters because, despite the noise it makes in the public sphere, it currently has the best of all worlds — the ability to snipe, second-guess, complain, whine, and Monday-morning-quarterback against the administration, without any obligation to legislate what it thinks the solution should actually be. .... ... for their part, the Bush administration’s supporters correctly question whether these critics and opponents are in fact as serious or in good faith about the alternative containment strategy as they claim. After all, many of them have also opposed so many of the measures that might be deemed essential to any meaningful “nonwar” strategy — the Patriot Act, nsa surveillance, financial monitoring and seizure of terrorist assets, effective border and immigration control, profiling, etc. If your strategy is to conduct a defensive war located within your own borders, warn the Bush administration’s supporters, then you had at least better be prepared to conduct it there, even if it discomfits civil liberties. .... Irrespective of where one comes down in the debate over counterterrorism policy, Congress today should act maximally through the only legitimate mechanism for the long haul in a democracy, legislation. No matter who is in control of the House or Senate come January 2007, it is critical that the legislature step up to its democratic responsibility. The administration responded swiftly to an unprecedented national emergency. But the United States cannot operate permanently as a national security state. The Cold War demonstrated that a democracy can develop mechanisms to accommodate — so long as the democratic apparatus remains flexible and willing to recognize the need for genuine tradeoffs — national security, democratic process, and civil liberties. The Bush administration has operated national security questions and the war on terror, in Jonathan Rauch’s words, “out of its hip pocket,” on a discretionary basis. But that cannot be the long-term operation of a democracy. .... As a general principle on which comprehensive legislation should be based, counterterrorism laws which then morph into general criminal law are a very bad idea. Either they will indeed erode ordinary civil liberties, or else they are laws make sense limited in application to the extraordinary threat of terrorism but nonetheless will not get passed because of the fear of more general application. The point is to draft legislation to cover contingencies that are indeed considered extraordinary with respect to ordinary criminals and ordinary crimes. For that reason, in some cases — as in tribunals for alleged terrorists — they justify procedures involving special rules that deliberately depart from the usual rules of criminal law. ..... Congress ought to create a special terrorism court system, outside the ordinary criminal justice system, with special rules of procedure and evidence, for dealing with those accused of a strictly defined list of terrorist crimes; models can partly be found in Western Europe. The court would be civilian in nature, rather than the military tribunals currently contemplated; it would deal with persons accused of terrorism crimes who were either noncitizens or U.S. citizens, whether captured abroad or within the territorial U.S. Military tribunals would be limited to those, whether U.S. citizens or not, captured on the battlefield as traditionally defined — Iraq or Afghanistan, for example — rather than the “world as battlefield” concept of the war on terror. The court would have two hearing functions. The first would be to determine innocence, guilt, and punishment for unprivileged belligerency and any related crimes, such as murder, etc. The second would be to determine whether a detainee posed a threat to the United States — in proceedings on a regular, ongoing basis — and providing for administrative detention in such cases until the threat abated. (Citizenship would continue to differentiate rights in certain cases;and habeas corpus would be available with limitations.) .... |
| Posted by:Mike Sylwester |
| #1 "the legislature step up to its democratic responsibility"? -- They don't even bother to read the bills they do pass! |
| Posted by: Anguper Hupomosing9418 2006-10-20 20:02 |