Late last night, before nodding off, I wondered, as I often do, whether I'd hyperbolized the threat from the looming detention-torture bill. "Legalizing tyranny" is a very strong phrase and I don't want to cry wolf. In the sense that this president intends to seize random Americans and rush them into black sites and torture them at will, it's hyperbole. But in a deeper sense, I think it's completely accurate. The system we're talking about is to do with wartime. A president in the past has had the option of seizing enemy combatants on a battlefield and detaining them without charge as POWs. There's no threat to liberty there. What's new is that in this war, enemy combatants have been designated as such not just on the battlefield - but anywhere in the world. What's new is that they are no longer entitled to POW status. What's new is that this war is for ever. So any changes are not just for a time-limited emergency but threaten to alter basic balances in constitutional order. What's also new is that torture is now allowed on the down-low, on the president's authority. And what's also new is that an enemy combatant may or may not be an American citizen.
Put all that together and you really do have the danger of taking emergency measures for wartime and transforming a peace-time constitution into an essentially martial system, where every citizen or non-citizen can be apprehended at will and detained without charge. I repeat: this is a huge deal. It really should be a huge deal for conservatives who care about restraining government power. Its vulnerability to abuse is enormous; sanctioned torture, history tells us, never remains hermetically sealed. It always spreads. It eats away at decency and law and civility. If the president sincerely believes that torture is our most potent weapon in this war, and that habeas corpus is a quaint relic from the past, then we are in far greater peril than even the most dire pessimists believe.
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