Fear and Trembling in the Court

By Capt. Fogg

OK, so now I'm worried. I was willing to make some excuses for Obama's new support of offshore drilling; blaming it on previous administrations' infiltration of oil men into the department of energy and the drowning of environmental regulations, but if what I'm hearing about Elena Kagan is even partly true, I'm worried that we're going to have a more dangerous court, more friendly toward unfettered Presidential powers and willing to cut a wider swath through the law to root out nebulous, ever shifting devils and their agents -- making any accusation, any suspicion a de facto conviction without representation, without trial, without appeal: in some cases without anyone even knowing about it.

"Battlefield Law", said she to Lindsay Graham last year, should be applied to anyone we have a feeling is financing Al Qaeda and one's rights should not be read to anyone that might be construed to be a "terrorist" despite the lack of any real definition of what a terrorist might be. Vague definitions and accusations of shadowy connections leading to indefinite detentions without due process? Why have a court at all if we're no longer a civilized nation but a band of warriors on a worldwide battlefield?

Attorney General Eric Holder said on ABC's This Week Sunday, that even US citizens don't need to be read their rights if they're suspected of being involved in terrorism. Suspected is the key word here and in a time when everyone seems to be suspected every time they board an airplane, it's a scary word.

“I think we have to give serious consideration to at least modifying that public safety exception." Chopping a piece out of the Bill of Rights is “one of the things that I think we’re going to be reaching out to Congress to do – to come up with a proposal that is both Constitutional, but that is also relevant to our time and the threat that we now face.”

I think it's worth mentioning that the most recent attempts at terrorist acts were hardly impeded by the reading of rights as the terrified terrorists , one of whose gonads had just been blow off, spilled their guts as fast as they could get the words out and when we're happy to torture people so thoroughly their testimony becomes invalid, what's going to change if we tell them they have any rights at all -- which, practically speaking, they don't. I'm afraid we don't either. It's certainly harder not to cry when reading about our forefathers' noble ideals about all mankind being endowed with inalienable rights when we're told that's just too risky these days.
It's always been risky and taking that risk has been one of our valid claims to greatness.

The last thing I expected or wanted from the President in the way of restocking the Court was another battlefield lawyer, supporting the degradation of our most basic American traditions and laws from gutless cowardice. We have more to fear from fear of terrorism, it seems, than from terrorism itself. At a time when the very concept of a government is so frightening to so many, I would have expected a selection with a more obvious commitment to taking the risk of Liberty and willing to face saboteurs without sabotaging our own freedom.

(Cross posted from Human Voices)