Are Republicans Seeking to Legitimize al-Qaeda?

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8 January 2010 :: J.E. Robertson

There is a fundamental difference between the logic of military tribunals for battlefield captures and the Constitutional order of criminal prosecution and due process: the Constitutional criminal justice system is designed to deal with people who violate laws; military tribunals are meant to be an ad-hoc legal variation of that standard, reserved for representatives of enemy states that violate the laws of war in a battlefield setting. By inveighing against the US criminal justice system’s ability to handle terror prosecutions, the Republican party is not only actively promoting lies, but working to elevate Al Qaeda to the status of a legitimate, sovereign government.

Not only is the Republican party attack on the federal criminal justice system an attack on the US Constitution itself and a frightening departure from the committed service to democratic ideals expected of all elected officials, it suggests both the legitimation of Al Qaeda’s claim that they are entitled to practice warfighting against US interests and that the United States territory is now, legally speaking a “battlefield”. This creates a very real, very distinct threat to long-standing civil liberties that in case of invasion could be curtailed for the general welfare or the security of the state.

The Republican position on terror prosecutions has been nakedly irresponsible for years: refuting the Supreme Court’s determination that there is literally no circumstance conceivable where the United States government could deny any prisoner, detainee or suspect the fundamental legal rights promised by the Constitution —which not only grants rights to individuals, but limits government power to powers specifically enumerated in written law— and promoting the use of abusive tactics and prosecutions that deny access to evidence and adequate defense has led to a disastrous legal situation in which some very dangerous detainees may have a legitimate legal case on appeal.

That the Republican party has sought to create a new judicial precedent in which certain criminal prosecutions are not eligible for any kind of appeal is not a sign of being tough on terror; it is a sign of the party’s willingness to throw away essential Constitutional protections in exchange for the elevation of a gang of thugs and murderers to special status, solely for the purpose of covering up the failings of its own policies. The collective result of the Republican party’s hard-line approach, which has ignored federal law, defamed the Supreme Court and eroded the Constitutional system, has been to endanger the nation by making it easier for suspected terrorists to win in court.

The United States has long been credited with having the most evolved, most open, most dynamic and legitimate, system of trial-based justice. That legitimacy depends on the consistent upholding of fundamental democratic principles for organizing fair trials, examining actual evidence, and demanding that the state not have the power to arbitrarily detain people who have not violated the law. Allegations are not convictions, in such a system, and if they become so, then we will have lost our democracy to a band of terrorist thugs.

The will of elected officials to uphold the Constitution they are sworn to serve should be stronger and more resilient than the frail logic of would-be authoritarians who believe —or simply believe it is convenient to promote the idea— that democracy is weak and dangerous, tantamount to “appeasement” and that only belligerence and disregard for the rule of law can show strength. The entire history of the United States has been about a concerted, society-wide effort to overthrow, comprehensively and for good, the logic of authoritarianism, the police state and the exercise of power for the benefit of power.

We now need to guard against the most perilous failure of imagination, the failure that allows frail minds to perceive the exercise of cynical brute force and arbitrary detention as superior to the vast history of accomplishments of a free people demanding something better of the world, and of themselves. It is also necessary to recognize that there can be no legitimate explanation for using the issue of terrorism to promote one’s own party over another during an election year. Republican attacks on the Constitutional justice system in an attempt to sow fear of Democratic leadership are, if nothing else, in direct service of the interests of terrorism.

Promoting the degradation of the Constitutional justice system in the interest of pre-arranging rigged trials to permanently imprison anyone accused of terrorist acts, without a Constitutional process, is to degrade the Constitutional system of government in service of the radical ideology of terror and hate, promoted by Al Qaeda. It is capitulation, because the very aim of terrorists is to alter the society they attack, by using fear as a lever to alter their reactions to attacks on their way of life.

The aim of terrorists is to cause us to violate our own ideals, erode the rule of law, apply the logic of fear and hate, and in the process lose the dynamism and security that stems directly from our Constitutional system and its hard-won freedoms. Republican politicians have a responsibility to defend not only “the homeland”, but to defend our cherished system of democratic values and processes, to uphold the rule of law and a permanent ban on arbitrary detention, torture and the other instruments of authoritarianism. They have, like the rest of us, an always-active responsibility to defend the virtues of democracy against the logic of fear and extremism, not capitulate to the logic of fear.

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