Who’s A Terrorist?

by digby

Kevin responds to Joe Klein’s tremulous admonition that Democrats should temper their criticism of the NSA illegal spying because it makes us look like we don’t care about terrorism:

Politically, I continue to think Democrats should make it absolutely clear that what they’re attacking isn’t necessarily the NSA program itself, but the fact that the president unilaterally decided that he could approve the program without congressional authorization. In the world of 10-second sound bites, that might end up being a difficult distinction to make, but it’s worth making it over and over anyway. We’re not opposed to cranking up our intelligence efforts, but we are opposed to a president who thinks that a vague and indefinite state of war gives him the authority to do anything he wants.

Absolutely. But then, I don’t understand why anyone is worried about this in the first place. I don’t think anyone seriously suggests that the government doesn’t have the power to spy on suspected terrorists. The polls show that a majority of people already believe that the president should have to get a warrant before spying on American citizens. Indeed, I think all of us naturally assumed that the FBI has been doing that for years and those in the know understood that the NSA had the ability to do it through the FISA court. I don’t know of anyone who is saying that the government should be able to do this at all — this idea that people are just “against wiretapping” is a straw man.

There is no downside to criticizing this administration for illegally wiretapping Americans in no uncertain terms. But, I think we can take it one step further. We need to be asking why they couldn’t even get John Ashcroft to sign off on the renewal of this program back in 2003. Why did the FISA court deny more applications after 9/11? It’s impossible to imagine that they were tightening existing rules at a time like that. The history of this program is suspicious and it isn’t just unAmerican civil libertarians like me who are aware of the potential for abuse. Even people who support the program see it. Here’s a quote from the AP poll over the week-end:

The issue is full of grays for some people interviewed for the poll, including homebuilder Harlon Bennett, 21, a political independent from Wellston, Okla. He does not think the government should need warrants for suspected terrorists.

“Of course,” he added, “we all could be suspected terrorists.”

This is an issue that cuts across all the abuses of power in the GWOT, from rendition to torture to illegal wiretapping. What constitutes a suspected terrorist? Without due process how do we know that innocent people aren’t being accused? There is no review. There is no oversight. We are asked not only to take the word of the president that he is using these extra-legal powers judiciously, we are asked to believe that all the people he’s judiciously using these powers against are guilty.

Some Americans don’t trust this president. Some Americans wouldn’t trust a Democratic president. And some of us don’t trust any president with the power to unilaterally decide who is a terrorist and who isn’t and then unleash extra-legal actions against them. Certainly, we don’t believe that any president can unilaterally declare someone guilty.

Yet that is exactly what has been happening. And we know that many of the people who the president has decided are guilty were not. A fair number of those who were beaten, abused and tortured in our custody at Gitmo and elsewhere have turned out to be cases of mistaken identity. Others were “sold” to Americans as terrorists by rivals. Still more were low level grunts who had no operational knowledge of anything. This has happened quite often. Yet, we have accepted it because we “we’re at war” excuses a great deal of inhumane behavior (which is why we should always be careful about saying that we are waging one.) It’s very easy for people to fall into a primitive tribalism — the old “the only good Muslim is a dead Muslim” or perhaps “if you don’t want to be seen as a terrorist, don’t be a Muslim.”

But this NSA illegal spying issue has brought all that home. We have a president who believes that he knows who is guilty and who is not. He believes that he has the inherent constitutional power to declare American citizens “unlawful combatants.” He interprets the office of president to be above the laws. When you have a president who takes this position, it is not illogical to assume that he might declare some innocent Americans to be suspected terrorists as well. And that innocent American could be anyone.

The supporter of wiretaps who I quoted above knows that, too. I can’t see any reason why Democrats and civil libertarians of all stripes should be afraid to make that point openly. It’s why due process was made a part of the Bill of Rights in the first place.

If we willingly discard this principle in the case of morons who are planning to attack the Brooklyn Bridge with a blow torch, why on earth should we adhere to the principle in cases of dangerous gangs or serial killers or child molesters? After all, throwing those people in jail without due process, wiretapping them without a warrant, holding them indefinitely without trial could easily be seen as the president upholding his personal oath to “protect the American people” which has now officially usurped his official oath to protect the constitution.

The fourth amendment is in place to protect innocent people who mistakenly or purposefully get caught up in the government’s hugely powerful maw. To pussyfoot around that bedrock principle is to help destroy it.

I’m betting that Joe Klein and his band of would-be tough guy liberals are on the wrong side of this. Fifty-six percent of the country already believes that the government should have to follow due process. Even that guy who supports wiretaps knows very well that there is a danger in allowing anyone the unilateral power to decide who is a suspected terrorist. I hope that Democrats ignore the mewling of timorous pundits and call upon Americans’ regard for liberty and their healthy skepticism of government power to make this argument explicitly.

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