Robert Harris -- of whose book I had heard only through Amber Taylor, so the publisher's strategy worked at least to inform other bloggers -- published an op-ed in the Saturday New York Times that follows the paper's general editorial policy of detesting the legislation that sets the rules on interrogating and trying terrorism suspects. The only NYT-published editorial I have seen that cheers the fact that, to quote the headline of a news analysis, "Detainee Bill Shifts Power to President," is John Yoo's, and he has been banging the drum for presidential wartime powers since 9/11. Harris's piece attempts to compare the current situation of the last remaining superpower with the world's first superpower, but even if all his ancient history is correct, the parallels won't convince those who aren't already afraid of the slippery slope toward tyranny. Describing the Roman law that gave sweeping new powers to the executive in order to fight terrorism, Harris says, "The Lex Gabinia was a classic illustration of the law of unintended consequences: it fatally subverted the institution it was supposed to protect. Let us hope that vote in the United States Senate does not have the same result." Unfortunately, the law's supporters think it actually does protect the rule of law -- for the vast majority of Americans who never will be seriously suspected of involvement in terrorism.
Plutarch said, "Pompey was to be given not only the supreme naval command but what amounted in fact to an absolute authority and uncontrolled power over everyone,” but many people see this legislation as giving the president uncontrolled power only over the bad guys. After all, what business did any non-Afghan have in Afghanistan after 9/11? Anyone we picked up there, at least of those remaining after the weeding out process of the last five years, clearly was up to no good and should be aggressively interrogated until he admits it. If the Bush Administration is not able to detain, waterboard and put before military commissions these terrorists, then the terrorists will become ever more successful, the American people ever more terrorized and ready to abandon even their rights.
Think of it like FDR's introduction of socialism and regulation to the previously laissez faire U.S. economy: in order to save capitalism, to prevent the unemployed masses from revolting and turning communist, he had to bend capitalism a little. The SEC here, a jobs program there -- given this reassurance, plus a world war to get GDP back up, the American people calmed. The Republicans similarly can argue that they are bending rights for a small group in order to safeguard them from what the majority itself would do to them. This is a little different from the obviously absurd notion that Al Qaeda actually could "win" the war on terror and somehow manage to take over our government. Instead of our enemies taking away our rights, we would give them up ourselves in order to gain safety. If the Supreme Court insists on habeas, conventional trials and Geneva Conventions, the citizenry simply will amend the Constitution to say that none of the above need be applied to terrorism suspects.
(This is the one thing that puzzles me mightily, however: in light of the conservative mania for amending the Constitution to keep the Supreme Court from legalizing flag-burning, same sex unions and a host of other dangers to our morals, it's odd that no movement has built since the Hamdi and Hamdan decisions for amending the Constitution to keep the Supreme Court from endangering national security by recognizing rights for terrorism suspects. Damn liberal justices -- well, except for Scalia's fetishization of citizenship -- and their mollycoddling of bin Laden...)