Conservatives’ Crisis of Faith in the Constitution

Posted by AzBlueMeanie:

Conservatives would have you believe that they are the defenders of the Constitution. For many, this is bullshit.

In the days immediately following 9/11, many conservatives were quick to unquestioningly accept Dick Cheney's dark vision of the imperial presidency and the "unitary executive" theory under which neither coequal branch of the government had the power to check the executive branch during times of war. A cowardly Congress quickly abdicated its constitutional prerogatives and duties over war and spending to the president. Article III federal courts suddenly became deferential to overly broad presidential claims of national security and state secrets (with a few notable exceptions for which these judges were savaged by the conservative media). The principle of checks and balances of power between coequal branches of government was dismissed as a "quaint" notion that was outdated.

Civil liberties under the Bill of Rights were shredded by a president who declared that he was the "decider-in-chief" and that he alone could decide who is an "enemy combatant" (including U.S. citizens); order individuals detained indefinitely without charges or speedy trial, without access to legal counsel, the right to confront witnesses or to impeach evidence; subject that individual to repeated torture, and to transfer that individual from the jurisdiction of Article III federal courts by "extraordinary rendition" to disappear into black site Soviet-style Gulag prisons or those of foreign countries. The president ordered an unprecedented data mining spy program which sifts all electronic communications within the United States, including those of U.S. citizens. The USA Patriot Act, approved by a cowardly Congress, permitted "sneak peak" warrantless searches of homes, and national security letters for employment and financial records without presenting any evidence of reasonable cause to a court to obtain a warrant.

When Congress made feeble attempts to check the most egregious of these violations of the Constitution and civil liberties, e.g., torture, the president simply issued signing statements exempting the executive branch from the reach of the law. A cowardly Congress caved in to the executive branch by agreeing to military commissions under a legal process controlled by the executive branch rather than the judicial branch, and exempted telecommunications companies from civil liability for participating in the data mining spy programs and authorized the president's illegal spy program post hoc.

Anyone who objected to these gross violations of the Constitution and the Bill of Rights was savagely attacked by the conservative media as "un-American" and a "traitor" guilty of "treason" against the United States, and of giving aid and comfort to terrorists and America's enemies. Republican members of Congress repeated these slanderous accusations on the floor of the House and Senate to be inserted into the Congressional Record.

Many conservatives defended all of the above abuses, and questioned the loyalty of anyone who dared to object.

On January 20, 2009, conservatives suddenly rediscovered the Constitution and claimed that they were the defenders of the Constitution. Again, bullshit.

President Obama had not yet completed his oath of office before conservative media began asserting that the Constitution was under assault from an illegitimate usurper of "their" entitlement to govern, this socialist/communist/marxist/fascist/nazi/all of the above, and they openly advocated for armed insurrection against the government of the United States. The Governor of the state of Texas openly advocated for the long discredited pre-civil war notions of "nullification" of federal law under the Tenth Amendment and the "right" to secede from the United States.

Many conservatives seek to preserve the dangerous authoritarian precedents established under the Bush-Cheney regime for the next Republican president, in furtherance of Dick Cheney's dark vision of the imperial presidency and the unitary executive theory (in particular, the Cheney family).

So it should come as no surprise to anyone that conservatives are apoplectic over Attorney General Eric Holder's announcement Friday that the United States will begin to return to its Constitutional principles and the rule of law, and will try terrorist suspects in Article III federal courts. Accused 9/11 Mastermind to Face Civilian Trial in N.Y. – NYTimes.com

“New York is not afraid of terrorists,” said Representative Jerrold Nadler, Democrat of New York. “Any suggestion that our prosecutors and our law enforcement personnel are not up to the task of safely holding and successfully prosecuting terrorists on American soil is insulting and untrue.”

According to a United States Department of Justice press release dated June 9, 2009, entitled "Fact Sheet: Prosecuting and Detaining Terror Suspects in the U.S. Criminal Justice System":

There are currently 216 inmates in Bureau of Prisons (BOP) custody who have a history of/or nexus to international terrorism. Sixty seven of these individuals were extradited to the United States for prosecution, while 149 were not extradited. Seventy two of these individuals are U.S. citizens (45 of them born in the United States, 27 of them naturalized). The "Supermax" facility in Florence, Colo. (ADX Florence), which is BOP’s most secure facility, houses 33 of these international terrorists. There has never been an escape from ADX Florence, and BOP has housed some of these international terrorists since the early 1990s. In addition to the ADX Florence, the BOP houses such individuals in the Communications Management Units at Terre Haute, Ind., and Marion, Ill., as well as in other facilities among different institutions around the country.

Among those convicted international terrorists currently serving sentences in BOP facilities are:

• Sheikh Omar Abdel-Rahman, convicted of the 1993 World Trade Center bombing
• Ramzi Yousef, convicted of the 1993 World Trade Center bombing
• Ahmed Ressam, the Millenium Bomber
• Wadih el-Hage, convicted of the 1998 U.S. Embassy bombings in Africa
• Richard Reid, convicted of attempting to ignite a shoe bomb while on a flight from Paris to Miami carrying 184 passengers and 14 crewmembers
• Ahmed Omar Abu Ali, convicted of plotting to assassinate the U.S. President as well as attack and destroy civilian airliners
• Zacarias Moussaoui, convicted of conspiring with al-Qaeda to hijack and crash planes into prominent U.S. buildings as part of the 9/11 attacks

* * *

In addition to those inmates with an international terrorism history or nexus, there are approximately 139 individuals in BOP custody who have a history of/or nexus to domestic terrorism. These individuals include:

• Theodore Kaczynski, the Unabomber
• Terry Nichols, convicted accomplice of Timothy McVeigh in the 1995 Oklahoma City bombing

For those of you who have never seen the inside of a maximum security prison, let alone the "supermax" prison, let me tell you it is a sobering experience. Just catch an episode of Lockup: MSNBC's prison documentary series sometime from the comfort and safety of your living room. These prisoners are a greater threat to one another and to prison personnel than they are to the communities living near the prison. No one has ever escaped from the supermax prison in Florence, Colorado. PolitiFact | No inmate has escaped from federal supermax prison

Senator John McCain issued this statement:

“I am extremely disappointed with the Obama Administration’s decision to try in U.S. civilian courts the Al-Qaeda terrorists who planned, supported, and conducted the September 11th attacks. These terrorists are not common criminals. They are war criminals, who committed acts of war against our citizens and those of dozens of other nations.

“Terrorists who have declared war against our country should be treated as war criminals and tried for their crimes through military tribunals…

“Today’s decision sends a mixed message about America’s resolve in the fight against terrorism. We are at war, and we must bring terrorists to justice in a manner consistent with the horrific acts of war they have committed.”

Senator Jon Kyl issued this statement:

“It’s an unnecessary risk to bring the self-proclaimed mastermind of the 9-11 attacks to downtown Manhattan.

“Past trials of terrorists have proven that our civilian courts are not the appropriate venue to handle international terrorism trials. As a result of the trial of Omar Abdel Rahman, also known as the ‘Blind Sheik,’ al Qaeda obtained valuable information about U.S. intelligence sources and methods, thereby making the job of fighting terrorists tougher. Military tribunals – which have been used by Presidents dating back to George Washington – are the most appropriate, and secure, forum to try those who commit acts of war against the United States.

“It is a constant amazement to me that there are some who seem more concerned about extending legal protections to terrorists than security protection to Americans.”

It is important to keep in mind that our senators actively supported every abuse of the Constitution and the Bill of Rights by the Bush-Cheney regime outlined in the introductory section above (John McCain's vacillation on objecting to torture notwithstanding). What both of our senators are saying in essence is that they have no faith in our Constitution, the rule of law, our federal judiciary or our justice system. They want terrorist suspects subjected to extra-judicial rules that will guarantee their conviction, perpetual detention or summary execution.

The point was framed nicely by Lawrence O'Donnell and Jonathan Turley, professor of law at George Washington University, on Countdown Friday evening:

Lawrence O'Donnell: Aren't some of these critics succumbing to their fear of the terrorists, I mean aren't they now essentially afraid to fight the terrorists using our own rules, the things that we believe in, the things that we've successfully relied on as a society for a couple hundred years?

Jonathan Turley: That's was most distressing, you know this borders on constitutional defamation, these people saying that our laws cannot stand up to the task. You know this country has gone through crises that would have reduced other systems to a fine pumice. We've lasted. Our Constitution may not be as poetic as some, but it's designed to last. And it has done that. I can't understand why there's this crisis of faith and that's what these senators are showing. They are showing a crisis of faith in the Constitution. And I don't know why. Because the Constitution has been not the danger, not the risk to our liberties, it's been the thing that preserved it. And what is happening today is one of the most significant events in fighting terrorism. We've finally taken the high ground… I hope at the end of the day we will trust our legal system and our Constitution and have faith in the thing that defines us as a country.

Steve Benen of the Political Animal blog at The Washington Monthly expanded on this point:

BLINDED BY FEAR AND REACTIONARY PARTISANSHIP….When one cuts through the nonsense and poll-tested soundbites, the right's opposition to fair trials comes down to fear — fear that our principles are aren't worth honoring, fear that our rule of law is somehow flawed, fear that radical thugs have acquired supernatural powers. It's just blinding, irrational fear.

But in the larger context, as Glenn Greenwald explained, there's an insulting pretext to conservatives' criticism.

[T]he Right's reaction to yesterday's announcement — we're too afraid to allow trials and due process in our country — is the textbook definition of "surrendering to terrorists." It's the same fear they've been spewing for years. As always, the Right's tough-guy leaders wallow in a combination of pitiful fear and cynical manipulation of the fear of their followers. Indeed, it's hard to find any group of people on the globe who exude this sort of weakness and fear more than the American Right.

People in capitals all over the world have hosted trials of high-level terrorist suspects using their normal justice system. They didn't allow fear to drive them to build island-prisons or create special commissions to depart from their rules of justice. Spain held an open trial in Madrid for the individuals accused of that country's 2004 train bombings. The British put those accused of perpetrating the London subway bombings on trial right in their normal courthouse in London. Indonesia gave public trials using standard court procedures to the individuals who bombed a nightclub in Bali. India used a Mumbai courtroom to try the sole surviving terrorist who participated in the 2008 massacre of hundreds of residents. In Argentina, the Israelis captured Adolf Eichmann, one of the most notorious Nazi war criminals, and brought him to Jerusalem to stand trial for his crimes.

It's only America's Right that is too scared of the Terrorists — or which exploits the fears of their followers — to insist that no regular trials can be held and that "the safety and security of the American people" mean that we cannot even have them in our country to give them trials. As usual, it's the weakest and most frightened among us who rely on the most flamboyant, theatrical displays of "strength" and "courage" to hide what they really are. Then again, this is the same political movement whose "leaders" — people like John Cornyn and Pat Roberts — cowardly insisted that we must ignore the Constitution in order to stay alive: the exact antithesis of the core value on which the nation was founded. Given that, it's hardly surprising that they exude a level of fear of Terrorists that is unmatched virtually anywhere in the world. It is, however, noteworthy that the position they advocate — it's too scary to have normal trials in our country of Terrorists — is as pure a surrender to the Terrorists as it gets.

I'm also struck by the remarks of Jim Riches, whose son, a New York firefighter, died on 9/11. "Let them come to New York," said Riches, himself a retired deputy chief with the NYFD. "Let them get on trial. Let's do it the right way, for all the world to see what they're like. Let's go. It's been too long. Let's get some justice."

That this is even considered controversial is a dispiriting setback.

There is, of course, the ongoing debate to consider — do conservatives believe their own rhetoric? It's occasionally difficult to tell. One could probably make a compelling argument that the same far-right voices throwing tantrums yesterday at the thought of fair trials know full well that the American system of justice is well equipped for legal proceedings like these. They're whining incessantly, the argument goes, because they hate the president. Yesterday had nothing to do with national security policy and everything to do with reactionary partisanship.

Alas, it's a scarier prospect, but it seems just as likely that the right accepts these attacks as true, and has rationalized their irrational fears as legitimate.