Welcome to Post-Constitutional America

by Randolph T. Holhut

Few Americans have complained about this. The jailed are immigrants, mostly Arabs and Muslims. The average American doesn't have to fear being jailed without being formally charged without a crime or being held incommunicado indefinitely.

But the downward slope can get slippery in a hurry in an age of fear.

Consider the case of John Walker Lindh, the Californian captured by U.S. troops in Afghanistan. While it might not have been wise for Lindh to join the Taliban and participate in its civil war against the Northern Alliance, that appears to be his only crime. Meanwhile, the Justice Department is frantically trying to dig up enough evidence so they can try him on treason charges -- even though it appears that Lindh had no intention of ever fighting against Americans.

But few Americans seem to care about Lindh, or about the appalling treatment he received when he was captured. Most have made up their minds about Lindh -- he's a traitor and deserves to die.

Lindh has it easy compared to the prisoners of the Afghanistan campaign that are being detained at Camp X-Ray in Guantanamo Bay, Cuba. The U.S. is holding people they call "enemy combatants" in dog cages, all the while insisting that the Geneva Convention doesn't apply to these prisoners of war because the Taliban never had an army.

Again, few Americans cared because they were foreigners who fought against American troops. They are deemed undeserving of rights.

Until they discovered an American in the group of prisoners.

Jose Padilla (a.k.a. Abdullah al-Mujahir) found this out when he was arrested in Chicago in May as a "material witness" on a customs violation. He was held by civilian authorities in jail for almost a month. Shortly before a scheduled court hearing in New York City where Padilla's right to a lawyer and other legal protections were to be discussed, Padilla was whisked off to a Navy prison after the Justice Department accused him of planning to build and detonate a nuclear device.

Padilla, a small-time hood before he started hanging out with Islamic extremists, has not been formally charged with any specific crime. The Justice Department admits it has no physical evidence, just the say-so of a captured al-Qaeda informer, and that any case against Padilla would be weak. This probably explains why Padilla will be held indefinitely because he too has been given "enemy combatant" status by President Bush, stripping Padilla of all his constitutional rights.

The legal pretext for what's happened to Padilla is based on a 1942 Supreme Court ruling in a case involving the capture of eight Nazi saboteurs -- several of whom were American citizens -- and the legality of their trial before a military tribunal. It ruled that "citizens who associate themselves with the military arm of the enemy government, and with its aid, guidance and direction enter this country bent on hostile acts, are enemy belligerents."

Last time I checked, the U.S. Congress hadn't declared war against the Taliban, al-Qaeda or anyone else. There is no legal basis for stripping American citizens of their rights because they've been accused of associating with terrorists. But President Bush wants to behave as if the Constitution has been suspended and that he now has the power to determine whom can be imprisoned indefinitely. The Bush administration now believes it has the right to suspend the right of an American citizen to due process, legal representation and a trial before one's peers in a public court.

This, quite frankly, is un-American. These are legal tactics straight out of a totalitarian state; tactics not worthy of the world's greatest democracy. Security and "fighting terrorism" are not suitable pretexts for destroying more than two centuries of American jurisprudence, except in the post-Sept. 11 nation that The Progressive Review's Sam Smith calls "Post-Constitutional America."

Columnist Geov Parrish summed up how police states evolve in a recent column on the WorkingForChange.com website: "A minority gets identified and attacked as criminal -- preferably a threat to national security. Bit by bit their rights are gutted, while the rest of us go obliviously about our business. And then gradually, the definition of who constitutes a threat is also expanded. ...

"Unlimited detention -- without charges, the right to a jury trial, or the right to see the evidence against you. Chilling of political speech. Unlimited surveillance and investigative powers. Week by week, the initiatives pile up, the list of abuses considered off limits for our government gets progressively shorter. With nobody having been charged in relation to the threat necessitating it all."

The rule of law as enshrined in the Constitution is supposed to still mean something in America. We must not give this up in the fear of the moment and let our leaders get away with destroying our hard-won rights and turning our nation into a police state.

"Once alienated, an 'unalienable right' is apt to be forever lost, in which case we are no longer even remotely the last best hope of Earth but merely a seedy imperial state whose citizens are kept in line by SWAT teams and whose way of death, not life, is universally imitated," writes Gore Vidal in his new book "Perpetual War for Perpetual Peace: How We Got to Be So Hated."

The "land of the free" or a "seedy imperialist state." Which will we choose?