The Battle On the Home Front

By: E. C. Fish

The news from Afghanistan has been good. The Taliban, who will do as an enemy since the real one is too nebulous and well hidden to conduct actual warfare against, are on the run in Northern Afghanistan, one of Bin Laden's chief lieutenants is a confirmed casualty, and the Afghan phase of this campaign may soon see a successful conclusion.

Not that it makes a damn bit of difference. Back on the home front, the war is over, and it was a complete rout. We lost, at least to the extent that we were fighting for democracy, justice, and American values. A regime of questionable legitimacy and no real democratic mandate has seized power, overturned the constitution, and assumed unilateral control, suspending the usual checks and balances. All this occurred without a shot fired or voice raised, and there isn't a damn thing we can do about it.

Lest the above seem overdramatic, it should be noted that the Bush administration's recent behavior has upset not only such friends-of-the-usual-suspects as the American Civil Liberties Union and your humble correspondent, but also such reflexive defenders of the regime as William Safire and Rep. Bob Barr (R-GA), and that the list of anti-democratic and anti-constitutional actions taken by the administration includes some genuine humdingers, to wit...

• The President, in an executive order, has in effect overturned the Freedom of Information Act by establishing rules whereby the release of the papers of a former President can be blocked by a sitting President, a former President, or the surviving family of a former President, each against the wishes of the other. The fact that this executive order is timed to block release of the papers of the Reagan administration, which likely detail actions taken during Iran/Contra by the President's father and several key players on his current leadership team seems to indicate both that these Presidential allies have something to hide and that the President is not above invoking national security issues to save himself and his people from embarrassment.
  
  
• In another executive order, the President has effectively suspended due process for any foreign national believed to be a member of a terrorist organization. Such people would be placed at the mercy not of the established criminal justice system, but military tribunals that could detain or execute them without review or appeal by any civilian body. Such niceties as the rules of evidence, competent defense, and unanimous verdict of a jury of peers would be ignored entirely - the tribunal would investigate, prosecute, and punish, with impunity, by its own rules.
  
  
• The Attorney General has de facto suspended the writ of habeas corpus. Several hundred, perhaps over a thousand, have been detained in the investigation of the September 11^th attacks. We don't know how many, or who they are, or where they are detained, or why they are being detained, or for how long. Neither do their families and loved ones.
  
  
• The Attorney General has further decided on the de facto amendment of the 6^th Amendment to the Constitution, suspending attorney client privilege for suspected terrorists and allowing prosecutors broad latitude to make use of formerly tainted evidence.
  
  

These are not the actions of men who trust in the democratic system. Rather, they are the actions of men who consider the checks and balances of democracy and the protections of the legal system to be mere niceties to be done away with the moment they begin to inconvenience the executive branch. All of the above were done completely by executive fiat, with no consultation of and little recourse to the other branches of government.

Which is why there isn't a damn thing we can do about any of them. In the current climate, few in Congress are willing to "break ranks" with the administration, and even if they did, it is unlikely that they would be joined by sufficient representatives to make any real headway against executive orders. As for the courts, the mere fact of George W. Bush's presidency suggests we can effectively count the Supreme Court out.

We can kid ourselves that none of this really matters - that the fact that this is largely aimed at foreigners isn't morally equivalent to "they only came for the Jews this time". The fact that we're allowing the Bush administration to use this war to set up a secretive and unaccountable shadow regime, unencumbered by democratic process, should give us far greater pause, however. Such regimes rarely give up willingly, war or no war, and the secrecy in which they operate means we'll never quite be sure who they're coming for, and when.

This is a crisis of American values that, frankly, dwarfs the terrorist attacks. It's time we started acting like it.