It is always amazing how many who do not care one whit about constraints on First Amendment rights implicit in contemporary “campaign finance reform” or limitations on peaceful protests around abortion clinics or who insist on the narrowest possible interpretation of the Second Amendment manage to get their shorts tied up in a rigid knot about the detention of illegal combatants associated with Al Qaeda. There are certainly serious civil rights issues that need to be addressed, but there remains a strange and unsavory sensitivity to rush to the defense of only those who hate America.
Some try to invoke Pastor Martin Niemöller’s warning:
“First they came for the Jews
and I did not speak out
because I was not a Jew.” …
“Then they came for me
and there was no one left
to speak out for me.”
However, even this sound observation can be misapplied. There are also times they come for thugs; there are also times they come for murderers; and there are also times when they come for the evil. We should be able to discern the difference and speak up for those who come to protect us.
The Bush Administration is faced with an awkward situation. They are charged with fighting a war that sometimes takes place on American soil against enemy soldiers who do not conveniently, and according to the laws of war, wear uniforms. These “llegal combatants” fall into an unfamiliar legal no man’s land. They are not quite prisoners of war since they are not part of a regular armed force. They do not even have formal “ranks and serial numbers” that are normally required of prisoners. At the same time, these people are not mere criminals, but part of an enterprise that is at war with the United States. The sooner the United States makes a formal declaration of war, the easier it will be sort out the legal categories.
Americans feel uncomfortable, and justly so, when arbitrary executive authority is used to detain people, even extremely dangerous people. While there is little evidence that the Bush Administration has abused its authority in this matter, there is always a danger of tyranny when one branch of government can act solely and unilaterally to detain people. In Ex Parte Quirin, decided in 1942, the Supreme Court invoked common law practices to empower the government to try un-uniformed Nazi saboteurs (one of whom was an American citizen) in military tribunals. The court was silent about indefinite detention of similar illegal combatants. Yet, under the Ex Parte Quirin doctrine the government will probably be able to hold indefinitely people like Jose Pedilla who were likely conspiring to engage in terrorist activity. Nonetheless, there is a more appropriate and Constitutionally regular way to hold illegal combatants.
The US Constitution has made provision for dangerous situations where conventional and important legal protections might need to be modified. Article I of the US Constitution provides that:
“The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.”
Obviously, in cases of “rebellion or invasion”, other measures can be taken and Congress should make a provision for dealing with these new illegal combatants in a thoughtful and formal way. Consider the following proposed steps:
- Via legislation, Congress should provide the temporary authority for the executive branch to detain those who it has strong reason to believe are part of the foreign network at war with the United States. The legislation should make clear the level of proof required for this detention.
- Congress should provide for a special court with the sole purpose of supervising this detention. Members of this court could be cleared to review classified information. Every six months (or whatever time period Congress specifies), the executive branch must re-make the case for continued detention to this special court.
- Congress should place a time limit on this legislation so that this special executive power does not continue indefinitely and so that the specific provisions of the legislation can be reviewed and modified as necessary.
These legislative steps would not only protect the country, but also insure that anyone who is detained is done so under the review and care of all three branches of government. Importantly, these special provisions would be temporary in nature.
It is time for Congress to act in order to protect Americans and American liberties and avoid the unnecessary distraction of constant arguments about what may be more detentions.
What Went Wrong
July 7th, 2002Sometimes a cup of coffee represents no more than a refreshment. Other times, coffee fills up more than a little cup of irony. In 1000 AD, an Arab would indulge in a cup of sweetened coffee from Ethiopia. Islamic culture introduced coffee to the world. Without its discovery, there would be no Starbucks and Seattle would be much more laid back.
By the eighteenth century, Europeans had found they could grow the “devils drink” more cheaply in its colonies than could be produced in Ethiopia. In What Went Wrong? eminent Middle Eastern authority Bernard Lewis, points out that by the eighteenth century a typical Turk or Arab would sip coffee that was imported from Dutch Java or Spanish America. For Lewis, coffee represents a metaphor for the decline in the dominance of the Islamic world. This decline and its impact on the western world is the theme of Lewis’s book.
If one visited the world at the beginning of the second millennium, the case could easily be made that the Islamic World was the most powerful, dynamic, advanced and progressive culture on the planet. The Islamic World extended into Europe from both the east and the west, controlled all of Saharan Africa and the east coast of Africa, the Arabian Peninsula, east into Asia. Much of ancient Greek knowledge had been assimilated and new insights were learned in contact with the Chinese civilization.
The Islamic culture was self-confident and thus was, for its time, tolerant of other ideas and faiths. Although they would not accept attempts at proselytization, Christians were permitted and Jews prospered and occupied positions of prominence.
The Islamic powers had reason to be confident. They dominated the world militarily, eventually expelling Crusaders from Europe.
Somewhere around the time of the European Renaissance, it became apparent even to Muslims that something was changing. European science and technology was improving, largely due to imperatives of trade and exploration of the New World. The Reformation in Europe alleviated the hegemony of thought, with an emphasis on individualism.
Gradually, Europeans pushed back the geographic limits of the Islamic World, largely expelling it from Europe. As the military superiority of the West improved, Muslims found it essential to adopt Western military weapons and tactics, but felt no real necessity to incorporate large elements of Western culture. Much of the Islamic World believed it could modernize without Westernizing. Ultimately, even these efforts failed.
In the late eighteenth century, Napoleon with superior arms blasted into Egypt and quickly overcame a power at the core of the Islamic World. Ultimately, Napoleon was forced to leave, not by an Islamic power, but by another Western one. Soon much of the Islamic world would become part of the colonial empire of one or another European power.
Today, much of the Islamic world is in poverty, ruled by tyrannical and oppressive leaders, and is technologically and economically far behind the West. If it were not for Western addictions to oil and opium, there would be little of export value from the Islamic World. Muslims also cannot fail to notice that the Eastern powers, Japan and the rest of Pacific Rim, have somehow been able to embrace Western economic culture and in some cases even surpass Western powers in terms of prosperity.
Of course, as Lewis points out, the human response to this conspicuous decline is to ask “Who did this to us?”
According to Lewis, for a long time, the Islamic world blamed the invasion of the Mongols in the thirteenth century. However, this explanation is unpersuasive given that many Islamic cultural achievements came after the expulsion of the Mongols.
Many in the Islamic World blamed Western imperialism, particularly by the British and the French. However, this explanation begs the question. It was the decline of economic and military power that allowed Western imperialism to succeed.
After, the formation of a tiny Israeli state in the center of the Middle East, the Muslim world tried to blame Zionism for their humiliation. As Lewis puts it, “… it was humiliating enough to be defeated by great imperial powers of the West; to suffer the same fate at the hands of a contemptible gang of Jews was intolerable. Anti-Semitism and its image of the Jew as a scheming and evil monster provided a soothing antidote.” The Jews were to blame.
Tolerance has come full circle. For much of the last millennium the treatment of Jews in the Islamic World was far more exemplary than their treatment by Christendom. Now Jews are hated in much of the Islamic World. It is ironic that perhaps the best indicator for the success and prosperity of a society and culture may be its treatment of Jews. If this historically persistent minority is tolerated, it implies that the dominant culture is sufficiently self-confident and prosperous that it sees no threat in the acceptance of Jews. It is an unmistakable sign of decline when this tolerance is abandoned.
Most recently, some in the Islamic world have blamed Western culture, and it chief symbol, the United States for undermining Islamic religious values. Islamic fundamentalist seek to explain decline in the Islamic World, by the abandonment of traditional Islamic practices.
The true reason for the decline of Islamic civilization has been its growing calcification and refusal to recognize the importance of individual freedom necessary for a modern economic state. Interestingly it may have been the early phenomenal success of Islam that cemented it into rigid religious structures. At the outset, Islam spread quickly and relentlessly. Within a century of Mohammed, Islam extended from Spain to the Caucuses. Islam washed over other local religions like a tidal wave and immediately dominated religious and government structures. Indeed, there was no perceived difference between the civic culture and religious culture. The law was Islamic law and carried the weight of Allah’s authority.
The Christian and Jewish religious traditions arose in a culture of the oppressed. The Jews were enslaved in Egypt and the early Christians were persecuted by the Roman Empire. Mohammed was triumphant on Earth, while Christ was put to death by local government authorities. From the outset, Christians and Jews realized that the kingdoms of the Earth and religious authority were not co-extensive. In the West, secular and religious power was often allied and sometimes synonymous, but the idea of two separate spheres of authority was at least possible. After the Reformation and a series of religiously-based European wars, it became evident that some mutual distance between the state and church could provide lasting peace. Indeed, with the rise of commercial society, the question of religious affiliation diminished in importance.
The laws and institutional arrangements of man were thus accepted as largely empirically based. What worked to produce civility and prosperity was sufficient. Arrangements could be temporary and flexible according to the needs of the time. Appeals to immutable religious authority were not necessary. This emancipation of the individual and associations of individuals to seek their own goals ignited the growth in wealth and military power that has left much of the Islamic world behind.
There is nothing inherent in the Islamic faith that prevents it from embracing Western culture. The relative prosperity of Turkey is a consequence of its adoption of Western economic and cultural institutions. Nonetheless, there remains a broad sympathy in the Islamic World with the notion that freedom, particularly the freedom that separates civil from religious authority, makes Western powers debauched and self-indulgent. The ultimate fall of these powers under the weight of their own decadence, in the minds of some, will mark Islam’s return to ascendancy.
However, as Lewis concludes:
Posted in Social Commentary | No Comments »