Thursday, December 18, 2003
Can This Constitution Be Saved?
Maybe. Jose Padilla is not so much a terrorist mastermind but more a common criminal, although Fox News reported this week he "continues to provide valuable intelligence to the government" about a supposed Al Qaeda plot to detonate a dirty bomb. What he is most of all is a symbol--that he's been held in jail for over a year, charged with no crime and without access to counsel, on the word of Bush and Ashcroft, is a symbol of how the United States has changed in a fundamental and profound way since September 11.
One of the biggest--and, sadly, one of the first--casualties of the war on terror was the idea that the Constitution and laws must protect the worst of us if we want to be sure they're going to protect any of us. "Rights for bad guys? Why? If they want their rights, they shouldn't do anything wrong. If you don't have anything to hide, there's nothing for you to worry about." Lots of law-abiding Americans easily fall for that, and why not, when personages as august as John Ashcroft have been asking us to--and when, in the case of most people, it is in fact true? Well, how about this--as soon as we stop believing that the law applies to everybody, and replace that belief with the idea that our leaders know best and they don't have to answer to anybody, then our 227-year-old democratic experiment is probably over. We're back to where we were when King George III's government could do whatever the hell it wanted with the colonies. The appeals court decision that Bush does not have the power to hold Padilla on his word alone shows that the experiment isn't dead yet--but it's definitely on life support and its prognosis is iffy.
But maybe I am being old fashioned. What if Bush and Ashcroft and the people in their amen corner are right--that international terrorism is filled with such deadly possibility that the rules we have hitherto followed no longer apply? OK, then--so come out and say it, and then use the mechanisms provided in law to deal with it, by passing a Constitutional amendment that repeals the Fourth Amendment, for example. That would be bad, of course, but it would at least be honest, and better than yammering pious platitudes in public while undermining the law in private.
The Padilla decision will be appealed to the Supremes, and eventually, they will have to decide how much power a president has in our new-millennium wartime. That decision will be as important as any the Supreme Court has ever rendered--Dred-Scott big, Brown- v.-Board-of-Education big. Future-of-the-Constitution big.
Maybe. Jose Padilla is not so much a terrorist mastermind but more a common criminal, although Fox News reported this week he "continues to provide valuable intelligence to the government" about a supposed Al Qaeda plot to detonate a dirty bomb. What he is most of all is a symbol--that he's been held in jail for over a year, charged with no crime and without access to counsel, on the word of Bush and Ashcroft, is a symbol of how the United States has changed in a fundamental and profound way since September 11.
One of the biggest--and, sadly, one of the first--casualties of the war on terror was the idea that the Constitution and laws must protect the worst of us if we want to be sure they're going to protect any of us. "Rights for bad guys? Why? If they want their rights, they shouldn't do anything wrong. If you don't have anything to hide, there's nothing for you to worry about." Lots of law-abiding Americans easily fall for that, and why not, when personages as august as John Ashcroft have been asking us to--and when, in the case of most people, it is in fact true? Well, how about this--as soon as we stop believing that the law applies to everybody, and replace that belief with the idea that our leaders know best and they don't have to answer to anybody, then our 227-year-old democratic experiment is probably over. We're back to where we were when King George III's government could do whatever the hell it wanted with the colonies. The appeals court decision that Bush does not have the power to hold Padilla on his word alone shows that the experiment isn't dead yet--but it's definitely on life support and its prognosis is iffy.
But maybe I am being old fashioned. What if Bush and Ashcroft and the people in their amen corner are right--that international terrorism is filled with such deadly possibility that the rules we have hitherto followed no longer apply? OK, then--so come out and say it, and then use the mechanisms provided in law to deal with it, by passing a Constitutional amendment that repeals the Fourth Amendment, for example. That would be bad, of course, but it would at least be honest, and better than yammering pious platitudes in public while undermining the law in private.
The Padilla decision will be appealed to the Supremes, and eventually, they will have to decide how much power a president has in our new-millennium wartime. That decision will be as important as any the Supreme Court has ever rendered--Dred-Scott big, Brown- v.-Board-of-Education big. Future-of-the-Constitution big.
