Watch Live: The Washington Ideas Forum 2014

Scandal Alert: Congress Is Quietly Abandoning the 5th Amendment

Meet the prominent legislators who think it's okay to throw Americans in jail forever without charges or trial.

gitmo full r.jpg
Reuters

What everyone must understand is that American politics doesn't work the way you'd think it would. Most people presume that government officials would never willfully withhold penicillin from men with syphilis just to see what would happen if the disease went untreated. It seems unlikely that officers would coerce enlisted men into exposing themselves to debilitating nerve gas. Few expected that President Obama would preside over the persecution of an NSA whistle-blower, or presume the guilt of all military-aged males killed by U.S. drone strikes. But it all happened.

Really thinking about all that may make it easier to believe what I'm about to tell you.

It may seem like imprisoning an American citizen without charges or trial transgresses against the United States Constitution and basic norms of Western justice dating back to the Magna Carta.

It may seem like reiterating the right to due process contained in the 5th Amendment would be uncontroversial.

It may seem like a United States senator would be widely ridiculed for suggesting that American citizens can be imprisoned indefinitely without chargers or trial, and that if numerous U.S. senators took that position, the press would treat the issue with at least as much urgency as "the fiscal cliff" or the possibility of a new assault weapons bill or likely nominees for Cabinet posts.

It may seem like the American citizens who vocally fret about the importance of adhering to the text of the Constitution would object as loudly as anyone to the prospect of indefinite detention.

But it isn't so.

The casual news consumer cannot rely on those seemingly reasonable heuristics to signal that very old norms are giving way, that important protections are being undermined, perhaps decisively.

We've lost the courage of our convictions -- we're that scared of terrorism (or of seeming soft on it).

News junkies likely know that I'm alluding to a specific law that has passed both the Senate and the House, and is presently in a conference committee, where lawmakers reconcile the two versions. Observers once worried that the law would permit the indefinite detention of American citizens, or at least force them to rely on uncertain court challenges if unjustly imprisoned. In response, Senator Dianne Feinstein tried to allay these concerns with an amendment:

An authorization to use military force, a declaration of war, or any similar authority shall not authorize the detention without charge or trial of a citizen or lawful permanent resident of the United States apprehended in the United States, unless an Act of Congress expressly authorizes such detention.

You'd think the part about American citizens being protected from indefinite detention would be uncontroversial. It wasn't. But the amendment did manage to pass in the United States Senate.

Presented by

Conor Friedersdorf is a staff writer at The Atlantic, where he focuses on politics and national affairs. He lives in Venice, California, and is the founding editor of The Best of Journalism, a newsletter devoted to exceptional nonfiction.

Things Not to Say to a Pregnant Woman

You don't have to tell her how big she is. You don't need to touch her belly.

Join the Discussion

After you comment, click Post. If you’re not already logged in you will be asked to log in or register.

blog comments powered by Disqus

Video

Things Not to Say to a Pregnant Woman

You don't have to tell her how big she is. You don't need to touch her belly.

Video

Maine's Underground Street Art

"Graffiti is the farthest thing from anarchy."

Video

The Joy of Running in a Beautiful Place

A love letter to California's Marin Headlands

Video

'I Didn't Even Know What I Was Going Through'

A 17-year-old describes his struggles with depression.

Video

Google Street View, Transformed Into a Tiny Planet

A 360-degree tour of our world, made entirely from Google's panoramas

Video

The Farmer Who Won't Quit

A filmmaker returns to his hometown to profile the patriarch of a family farm

Video

Riding Unicycles in a Cave

"If you fall down and break your leg, there's no way out."

Video

Carrot: A Pitch-Perfect Satire of Tech

"It's not just a vegetable. It's what a vegetable should be."

More in Politics

Just In