What Occupiers and Tea Partiers Should Fear Most

It's not taxes. It's the passage of a new bill that would allow people on both sides of the political divide to be detained without trial.

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Sixty-four percent of Americans consider big government the biggest threat to the country, according to Gallup, but who knows what they mean by big government? Do 64 percent of Americans oppose the biggest big government threat in our history -- the virtually omniscient, omnipotent national-security state? 

I doubt it, and neither the president nor many members of Congress seem fearful of public opposition to post-9/11, big-government authoritarianism. Instead, they cringe at the prospect of seeming soft on terrorism and rush to enact the 2012 National Defense Authorization Act (NDAA,) including provisions that would arguably allow the indefinite detention without trial of American citizens, seized on American soil.

I won't repeat here the many urgent critiques of this bill emanating from the left and right. But I do want to stress that opposition to the NDAA spans some of the usual left/right divisions. Opposing the indefinite detention of American citizens, Tea Party Senator Rand Paul (R-Ky.) sounds like a speaker at an ACLU convention. 

In response to libertarian concerns, the Senate has slightly amended, or qualified, the NDAA's assault on our most fundamental rights. But, at worst, the amendments are cosmetic efforts to obscure the bill's threat to American citizens; at best, they are ambiguous fallbacks, leaving open questions about the military's power to detain us forever without trial. In either case, Congress has declined to acknowledge and affirmatively protect our foundational freedom from arbitrary, unlawful imprisonment. 

But if opposition to the NDAA has had little effect, enactment of this awful bill -- along with repeated Patriot Act renewals and other post-9/11 abuses -- could help energize a non-partisan libertarian movement. Or so a liberty-loving optimist might hope. Passage of the NDAA will add the threat of summary detention to the government's post-9/11 arsenal, which already includes blacklists, enhanced surveillance, and criminal prosecutions of political speech labeled as material support for terrorism. The Supreme Court has upheld the criminalization of peaceful human rights advocacy involving association with an alleged terrorist group. And as Shahid Buttar, Executive Director of the Bill of Rights Defense Committee stresses, this means that pursuant to the NDAA, the government could conceivably not only prosecute dissidents -- it could imprison them without the bother of a prosecution. Protesters -- from Tea Partiers to occupiers -- could face the threat of indefinite summary detention, depending on the political preferences of whomever holds power. 

Is it naïve to hope that such a dramatic diminution of basic 1st, 4th, 5th, and 6th Amendment rights would rally a freedom loving populace? Perhaps. Formation of a left/right libertarian coalition would require a vocal, critical mass of Americans to recognize what they should fear most from the big government they claim to disdain. (It's not taxes.) 

People tend to rise up against the threats they personally discern or experience, which is why TSA procedures have sparked more public outcries than torture. Many post-9/11 abuses, like blacklisting and ubiquitous surveillance, are invisible. Others, like summary imprisonment or torture, are generally directed at unpopular minorities -- immigrants and Muslims, as well as the occasional high profile terrorism suspect. And when repression targets other people, in the ersatz interests of "our" security, it can pass perversely as freedom. As Rudy Guiliani famously remarked, "Freedom is about authority." Libertarians have to hope that Americans will recognize the illusiveness of such freedom and the harsh realities of post-9/11 authority before it's turned implacably against them. 

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Wendy Kaminer is an author, lawyer, and civil libertarian. She is the author of I'm Dysfunctional, You're Dysfunctional.

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