Thursday, April 23, 2009

Rereading the Constitution

I'm really not interested in recounting the sins of the previous administration. I can watch CNN or MSNBC for that. The Bush Administration was neither completely wise nor brilliant in its handling of the War on Terror. Fine. Moving on. Obama is President now. What he's doing matters, both in the present and for the future of this nation's efforts to prosecute the GWOT (oh, sorry, the Overseas Contingency Operation) abroad and ensure politcal comity and stability here at home. President Obama needs to reread the Constitution, which is somewhat surprising, since he reputedly taught constitutional law at Harvard Law School.

Let's start with Article I, which states:

No bill of attainder or ex post facto Law shall be passed.

A bill of attainder, according to, is:

A legislative act that singles out an individual or group for punishment without a trial.

An ex post facto law is a law that subjects individuals to criminal penalties for actions that were legal at the time they were committed.

The Founders had several reasons for including bills of attainder and ex post facto laws in the Constitution. They had read history. They knew that Rome began to shift from a Republic to an Empire with a winner-take-all political system when winners of elections would attempt to prosecute their predecessors after the fact for just such things. It became increasingly important to hold onto power because if you ever lost it or retired, you'd soon find yourself executed under some new law. That is where we're heading now with allowing CIA agents to be prosecuted--here or overseas--for interrogations performed in pursuit of terrorists.

The military and CIA interrogators had strict guidelines on what they were and were not allowed to do during their interrogations of people like Khalid Sheikh Mohammed, and they got actionable intelligence that saved lives. If we subject them to ex post facto laws, we're violating our own Constitution. And we're also putting past, present, and future CIA employees and other Americans at risk from international prosecution. The war is still going on, after all, and Obama is showing signs of continuing the Bush policies in Iraq and Afghanistan. He certainly hasn't withdrawn our forces. In any case, once the Obama administration comes to an end, as all regimes do eventually, the President is leaving his own people vulnerable to the very thing he's threatening to do to President Bush's people now. This is why we have ex post facto laws and also why the President is empowered to pardon people--to prevent junk like this from happening.

Let me guess: the next thing I'm going to hear is, "Torture is a violation of our Constitution, too." Awhile back I was scolded by a liberal friend for accepting or being indifferent to the use of waterboarding or other non-lethal, non-flesh-damaging, non-bone-breaking, non-permanently-harming interrogation techniques on terrorists caught on the battlefield. I believe the exact phrasing was, "Come on, Bart. You wouldn't accept your mother or sister being subjected to that." To which I'd respond, then as now, "No, I wouldn't. But then my mother or sister wouldn't have been caught on the battlefield in Afghanistan, shooting at our troops and hanging out with people planning to kill Americans."

So, seriously, I have another question for my liberal readers: how do you get information about imminent terrorist activities from very bad people who have no interest in helping you and every reason in the world (to them) to harm you? Let's say, for argument's sake, that I'm wrong, that torture is in fact unreliable as a means of obtaining informaiton. Then what? Rather than take the "you wouldn't let your sister be waterboarded" angle, I would ask the reverse: your sister is being held captive by people known for beheading their prisoners and posting the videos on Al Jazeera. You've captured a guy that you know is high up in a terrorist organization. You know his group plans to strike again, soon, and possibly behead your sister. Now: would you forbid waterboarding if you had the lead bad guy sitting captured before you? Repeat playings of Barry Manilow records? Jimmy Carter "national malaise" speeches? How do you get the information? I don't know, either.

However, Americans who have been in the very rough and serious business of fighting this nation's enemies deserve at least the benefit of the doubt. More than that, they deserve the protections of the Constitution they've been fighting to preserve.

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