Once again, liberal America is in a snit because the vast majority of people in this country do not agree with their prescription for the future. This time, the issue is whether we ought to protect civil liberties at the expense of the safety of our nation. (Admittedly, I over-state the issue, which is, actually, whether the best way to ensure our safety is to provide terrorists with the same rights and protections that we provide to non-terrorist American citizens or to treat them as “combatants.”)
There, I just said it. There is a basis for honest debate. I believe that the “combatant” position is likely to result in a better outcome. I also have a very strong suspicion that the vast majority of Americans agree with me. There are lots of reasons why I believe this to be the case (e.g., it will provide better opportunities to obtain intelligence, it will spare the judicial system the risk (and expense) of the spectacle that will accompany hearings in our federal courts, etc.), but that is why I am writing this post. I am writing this this post in order to point out the arrogance of position the administration is taking in this regard. Based on all of the information I have seen to date (which may not be 100% comprehensive), I have not yet seen an administration official acknowledge the nature of the debate we are (or should be) having. It is a debate they will lose.
Instead, as noted in today’s WSJ, we keep getting inane and obfuscatory statements like those of John Brennan:Asked by David Gregory on NBC's "Meet the Press" why Abdulmutallab wasn't named an enemy combatant, Mr. Brennan said, "Well, because, first of all, we're a country of laws, and what we're going to do is to make sure that we treat each individual case appropriately."
I do not know what being a nation of laws has to do with a decision about treating the Crotch Bomber as a combatant. In fact, as the WSJ points out:
[T]here is nothing illegal about holding an enemy combatant indefinitely, as the Supreme Court has upheld and as the Obama Administration has argued in court.
When Mr. Gregory pressed about "additional intelligence that could be gleaned" by interrogation, Mr. Brennan replied:
"Well, first of all, we have different ways of obtaining information from individuals according to that criminal process. A lot of people, as they understand what they're facing and their lawyers recognize that there is advantage to talking to us in terms of plea agreements, we're going to pursue that. So—and we are continuing to look at ways that we can extract that information from him."
I’m sure the American people do not want us to be required to enter into a plea deal with the Crotch Bomber so that we can collect intelligence. In fact, I think the American people (as opposed to administration officials) believe we are more likely to collect important intelligence from terrorists (which is more important than a conviction in a civilian court) if we do not let them “lawyer up” and afford them the same protections provided by the criminal justice system designed to protect the rights of American citizens who are not waging war against our country. Just yesterday, the DC Circuit "strongly" (in the words of the NYT) upheld the right of the government "to hold Guantanamo detainees and other noncitizens suspected of committing terrorist acts."
The debate over the rights that we should provide to terrorists is a debate the administration will lose because it does not (and will not, ever) have the American people on their side. Although the administration is taking a principled position, most voters disagree with that position. We are a representative democracy, and elected officials are entitled to take positions that do not have popular support. However, such officials may take unpopular positions at their peril, especially when there is not real expertise they can claim as a basis for departing from the popular will. The taking of an unpopular position without engaging in debate is the height of arrogance. It is more arrogant to hide behind the Constitution in this regard. This same arrogance is also on display in the ongoing healthcare debate (although I do not think the American people feel as strongly about healthcare as they do about the public safety issues surrounding acts of terrorism in the US). Say what you want about the Bush administration, they were always willing to explain why they took certain positions.
If the administration and their standard-bearers in Congress do not change their tune in this regard, the elections in November will be even worse than they currently fear.