- The Washington Times - Wednesday, November 30, 2011

James Madison, father of the Constitution, warned, “The means of defense against foreign danger historically have become instruments of tyranny at home.” Abraham Lincoln had similar thoughts, saying, “America will never be destroyed from the outside. If we falter, and lose our freedoms, it will be because we destroyed ourselves.”

During war, there has always been a struggle to preserve constitutional liberties. During the Civil War, the right of habeas corpus was suspended. Newspapers were closed. Fortunately, those actions were reversed after the war.

The discussion now to suspend certain rights to due process is especially worrisome, given that we are engaged in a war that appears to have no end. Rights given up now cannot be expected to be returned. So we do well to contemplate the diminishment of due process, knowing that the rights we lose now may never be restored.

My well-intentioned colleagues ignore these admonitions in defending provisions of the 2012 defense authorization bill pertaining to detaining suspected terrorists.

Their legislation would arm the military with the authority to detain indefinitely - without due process or trial - suspected al Qaeda sympathizers, including American citizens apprehended on American soil.

I want to repeat that. We are talking about people who are merely suspected of a crime. We are talking about American citizens.

If these provisions pass, we could see American citizens being sent to Guantanamo Bay. This should be alarming to everyone because it puts every single American citizen at risk.

There is one thing and one thing only protecting innocent Americans from being detained at will by the hands of a too-powerful state: our Constitution and the checks it puts on government power. Should we err and remove some of the most important checks on state power in the name of fighting terrorism, well, then the terrorists will have won.

Detaining citizens without a court trial is un-American. In fact, this alarming arbitrary power is reminiscent of Egypt’s “permanent” emergency law authorizing indefinite preventive detention, a law that provoked ordinary Egyptians to tear their country apart last spring and risk their lives to fight.

Recently, Justice Antonin Scalia affirmed this idea in his dissent in Hamdi v. Rumsfeld, saying, “Where the government accuses a citizen of waging war against it, our constitutional tradition has been to prosecute him in federal court for treason or some other crime.”

He concluded, “The very core of liberty secured by our Anglo-Saxon system of separated powers has been freedom from indefinite imprisonment at the will of the executive.”

Justice Scalia was, as he often does, following the wisdom of our Founding Fathers.

As Ben Franklin wisely warned, we should not attempt to trade liberty for security. If we do, we may end up with neither. And really, what security does this indefinite detention of Americans give us?

Michael Chertoff, then head of the Justice Department’s Criminal Division and later secretary of the Department of Homeland Security, testified shortly after Sept. 11, 2001, to the Senate Judiciary Committee. He underscored that “the history of this government in prosecuting terrorists in domestic courts has been one of unmitigated success and one in which the judges have done a superb job of managing the courtroom and not compromising our concerns about security and our concerns about classified information.”

Some say that to prevent another Sept. 11 attack we must fight terrorism with a war mentality and not treat potential attackers as criminals. For combatants captured on the battlefield, I tend to agree.

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