I've seen considerable argument over Sen. John McCain's position that Fariad Shahzad, the Bungled Bomber of Times Square, should be treated as an "enemy combatant" rather than Mirandized and prosecuted through the normal channels of the justice system. Several people have said that Shahzad is somehow different, because he's a terrorist.
Well, so was Timothy McVeigh. The differences between McVeigh and Shahzad, McVeigh was native-born rather than naturalized; McVeigh was a US military veteran; and McVeigh's attack succeeded. One can very easily argue that there was a stronger case for trying McVeigh in a military tribunal, rather than in a court of criminal law, than there is for Shanzad. McVeigh's attack was up to that time the worst act of terrorism on US soil. Yet McVeigh was tried and convicted in a Federal criminal court according to due process.
Consider the consequences, then, if we were not to do the same with Shahzad. We have a US citizen who committed a crime on US soil. The fact that his crime was an attempted terrorist act, or that he bungled it and was foiled by alert bystanders, does not change the fact that it was attempted mass murder. If we treat him as an enemy combatant, we establish a precedent that there is a class of US citizens who can be denied due process and civil rights. And once such a class is established, you KNOW that class will grow. It always works that way. Mission creep is eternal.
This is not the only active threat to liberty that is going on right now.
We're all familiar with the ongoing comitragic farcical failure of the no-fly list, which has prevented six-year-olds and Marines returning from duty in Iraq from boarding flights. It has even — repeatedly — prevented Federal Air Marshals from boarding the flights they were assigned to guard. There are now estimated to be over a million names on the no-fly list. That article, from 2008, also reported that the Department of Homeland Security had acknowledged that one major air carrier alone was reporting nine thousand no-fly list false positives per day. And once on the list, there is basically still no real way to ever get off it. But how many actual positives has it yielded? Nine a day? Nine a month? Nine a year? We don't know, they won't tell us. But I think I can recall hearing of about two, maybe three no-fly successes ... in the entire history of the program.
(I'm not including political protesters whom the Bush Administration placed on the no-fly list basically out of spite.)
But is this example being heeded? Well ... not really, no. Sen. Frank Lautenberg (D-NJ) has introduced a bill, S. 1317, that would enable the US Attorney General to unilaterally deny firearms purchases to anyone merely suspected of possible terrorist activity. The panels to hold the first two hearings on the bill, starting tomorrow, have already been selected, and both have been well stuffed with anti-gun politicians and officials. The proposed bill essentially allows you no recourse, and no realistic appeal; if denied, you would not even be able to find out why you were denied. Just like the no-fly list, there would be no way to find out whether you were actually on a terror watch list, and no way to get off of it if you end up on one by mistake. If you did somehow manage to make it to an appeals court, evidence related to your guilt or innocence could be redacted if the administration chose to invoke "national security", which it currently appears to do for almost anything more sensitive than the State of the Union Address. (ACTA, for instance, which it only very recently conceded might possibly not threaten the continued existence of the US were Americans to find out what's in it.)
But wait! There's more! Sen. Joe Liebermann of Connecticut has proposed legislation to strip US citizenship from anyone declared by the State Department to be an enemy combatant. (I'm not going to bother linking. It's everywhere. There's so many articles out there your only problem will be which ones to read.) They don't even have to prove you guilty of anything; just accuse you. Even one of the Bush Administration's legal advisors has called Liebermann's bill "draconian".
We already have a perfectly functional justice system. (Well ... not as functional as it should be. But that's a discussion for another time.) The clamoring to declare anyone accused of aiding or participating in terrorism an enemy combatant and throw them into military tribunals (eventually) is not only unnecessary, it is dangerous to liberty and to the legal principles of due process that have been built into the foundations of the United States since its inception. We chip away at those principles at our grave peril, and the current screaming hysteria taking place on Capitol Hill is not merely chipping away at them, it is whacking great chunks off with a sledgehammer.
I really cannot over-emphasize how bad of an idea all of these things are.