the changing politics of flagrant rights-violations

Senators John McCain and Joseph Lieberman recently introduced the “Enemy Belligerent, Interrogation, Detention, and Prosecution Act of 2011” (PDF). This legislation would allow the executive branch to name any person (citizen or non-citizen, whether in the US or overseas) as a “high-value detainee” who can be held in military custody and interrogated without appeal and without Miranda rights. The act applies to anyone who “is suspected of engaging in hostilities against the United States or its coalition partners through an act of terrorism, or by other means in violation of the laws of war, or of purposely and materially supporting such hostilities …” Criteria to be considered in deciding whether to throw someone in the brig include “potential threat,” “potential intelligence value,” and “such other matters as the President considers appropriate.” The Secretary of Defense and the Attorney General make the ultimate decision– except when they disagree, in which case the President decides.

I hope it goes without saying that this is execrable legislation, monarchical or even dictatorial in its essence, and an insult to the core principles of the United States Constitution. But what interests me is the politics.

Until 2008, only civil libertarians would have been alarmed by such a bill. They were a subset of the Democratic base, and their party did not control the executive branch. Right-wing anti-government libertarians were terrified of terrorists and highly trusting of the Bush administration; thus many (not all) of them would have supported the bill. And the mainstream voter didn’t care much about civil liberties. The political alignment favored legislation like this, although nothing as bad actually passed under George W. Bush.

Now we have a Tea Party movement composed of libertarian-leaning conservatives who are almost as afraid of the president as they are of terrorists. I think it would be easy to line them up against this bill. I’d use this line: “When President Obama and his Attorney General get really fed up with Glenn Beck, under this law, they can throw him in jail and there’s no appeal.” I know that President Obama would do no such thing. (And I know, just to be clear, that Glenn Beck is no terrorist.) But the Tea Partiers’ fear is real, and in this situation, it should create a majority coalition against arbitrary executive power.