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The Doctrine of Preemption Comes Home

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In the last two weeks we have seen multiple examples of what civil liberties advocates have been warning about over and over again. The infrastructure of the police state, put together behind the scenes and with secret roomsfusion centers, was put on display in a number of different places. 

In the decades before 9/11, we became accustomed to being a nation with a law enforcement mindset, meaning that almost everything that happened domestically - even terrorist attacks against us (both foreign and domestic) - were treated as crimes. The response was to use all legal resources at our disposal to find, detain, try and convict those responsible. And by the way, it worked. After 9/11 our leaders made it clear (via) that the old ways no longer were effective because it caused us to ignore threats while they gathered. They claimed we were therefore geared towards prosecuting crimes after the fact instead of preventing them in the first place. This is the Original Lie in the War on Terror. In fact, "we" were not being complacent at all. There were government agencies tracking terrorist activity and in some cases frantically trying to get the attention of the White House. The American intelligence bureaucracy was performing well enough to identify threats and send word of them through the proper channels. The problem was not the blinkered outlook of the CIA or FBI but that of the President.

Such catastrophic negligence should have been the end of the his tenure. His abdication of responsibility was the highest of crimes, but he did not have enough honor to say "the buck stops here," accept the blame and let the chips fall where they may. Instead he brazened it out. He used the immediate national impulse to rally together and support our leaders as an opportunity to create a new paradigm, one not founded in law but in might. In the name of preemption - which everyone but our top levels of leadership had already been engaged in - he urged us to accept a new America that would prioritize striking out at those who would kill us before they could complete their work. Which, again, our agencies already had.

So the administration went below the surface and began to secretly capture, hold and torture those who were thought to be enemies. The important wrinkle here was not that we were going after them - we had been doing so for years - but that we now did so behind the scenes, with no regard for domestic or international law. (Please note: Lying about an affair during a deposition and wholesale repudiation of treaties, conventions, the Constitution and fundamental morality are entirely different species of contempt for the law.) They approach the legal system not with hostility but indifference, the way an agnostic regards God. All they want is to be told they can do whatever they want. As Jane Meyer quoted an anonymous former Justice Department lawyer (p. 224), "[t]hey didn't want serious legal advice. They liked the answers they were getting." They undertake a course of action with not the slightest thought of whether or not it is legal, or whether our system of justice can effectively process the results later. We will never get a satisfactory disposition for those locked away in our secret places because there was never any intent to expose them to the legal system.

The problem is, an attitude like that is hard to keep quarantined. The torture and cruelty that started on the battlefields of Afghanistan didn't appear in Guantanamo by coincidence; it was by design. The use of the same reverse engineered SERE tactics in Guantanamo and Abu Ghraib is not some fantastic synchronicity like Newton and Leibniz simultaneously developing the principles of integral calculus. Instead it was created and spread almost instantaneously because once you have hijacked the Office of Legal Counsel, turning it into an agency which does nothing more than dispense golden shields, you have functionally done away with the law; and where law does not exist there is no external obstacle to barbarity.

We did not insist on a full accounting after 9/11, and those in charge were emboldened. We did not insist on transparency when post-9/11 abuses started to come to light, and our leaders realized how powerful fear could be. We have averted our eyes every time we have been told we needed to for our own safety, and each time the lawlessness grew. It now is visible in the wildly disproportionate show of force in Minnesota and its conflation of peaceful assembly with riot, in the Blackwater mercenaries paid to roam the streets of New Orleans and in the makeshift detention facilities of MississippiIowa. And yet we continue to look away, and continue to submit.

Dan Fejes lives in northeast Ohio.

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A reader pointed out that the Japanese may have co... by Dan Fejes on Saturday, Sep 6, 2008 at 2:19:52 PM
Great article except for the end. Kucinich and Wex... by Nick van Nes on Saturday, Sep 6, 2008 at 6:15:26 PM
Comment from Ratings: Excellent although frighte... by Jay Farrington on Saturday, Sep 6, 2008 at 7:21:14 PM
The problem started long before 9/11. It started d... by Darren Wolfe on Sunday, Sep 7, 2008 at 3:05:07 AM
The author rightly says that there was great atten... by Peter Duveen on Sunday, Sep 7, 2008 at 9:04:27 AM