Barack Obama and the Global Jihad

President Lincoln After the battle of Antietam            


“The Constitution Is Not a Suicide Pact”


On Terrorism, Unlimited Detention and the Constitution

A fire storm is brewing around President Obama, as hysterics on the left and right vociferously denounce his decision not to veto the National Defense Authorization Act, which they claim ushers in a police state – the same argument they made about the “Patriot Act.”  The NDAA authorizes the continued pursuit of terrorist in every country around the world – wherever the intelligence reports leads – including the US.  It also authorizes American forces to capture terror suspects and empowers the government to detain them indefinitely without stating charges and bringing them to a speedy trial.

The core of the complaint against the President was succinctly stated by Laura W. Murphy, the director of the ACLU Washington Legislative Office. “If President Obama signs this bill, it will damage both his legacy and America’s reputation for upholding the rule of law. The last time Congress passed indefinite detention legislation was during the McCarthy era and President Truman had the courage to veto that bill.”  However there are obvious problems with this argument.

Whether the first assertion is true – that signing this legislation will ruin the president’s legacy and the reputation of the US – is a matter of speculation about the future.  But referencing the McCarthy era is a false historical analogy, because the American homeland had suffered no military attack and was in no imminent danger of one.

If one insist upon engaging in the risky business of constructing historical analogies, a practice many professional historians avoid, a comparison of President Obama’s actions with those of Abraham Lincoln’s during the Civil War would be on much firmer ground. What is at question here is the scope of the theater of war and the denial of Habeas Corpus, the constitutional provision that requires the government to charge a detainee within 72 hours or release them.

Abraham Lincoln – who is now almost universally regarded as our greatest President, the savior of the Union –  not only ignored a Writ of Habeas Corpus  issued by the Chief Justice of the Supreme Court, Roger B. Taney – author of the notoriously racist Dred Scott Decision – but Lincoln suspended the right of Habeas Corpus altogether on September 24, 1862.  His executive order offered this explanation:

during the existing insurrection and as a necessary measure for suppressing the same, all Rebels and Insurgents, their aiders and abettors within the United States, and all persons discouraging volunteer enlistments, resisting militia drafts, or guilty of any disloyal practice, affording aid and comfort to Rebels against the authority of United States, shall be subject to martial law and liable to trial and punishment by Courts Martial or Military Commission… the Writ of Habeas Corpus is suspended in respect to all persons arrested…”

When Lincoln was accused of subverting the Constitution he said: “The constitution is not a suicide pact.”  The bill that President Obama is signing into law is far more respectful of the rights of American Citizens.  Yet he has a more elusive and potentially destructive enemy, whose theater of war is world-wide and they have rejected the recognized rules of war.  Still, the President has insisted on retaining the role of our federal courts in trying terror suspects, while Republicans argue for military tribunals exclusively.

The paramount issue here is the imperatives of national security vs. Individual rights, and the arguments of both sides have merit.  Like the critics of this bill, I am also disturbed by the absence of any Court supervision in determining who is a terrorist, and the possibility of abuse by future Presidents.  But the American electorate has the power to  make their representatives repeal this law anytime they wish.  That power, the power of the ballot, will remain.

President Barack Obama is tasked with keeping American citizens safe from another attack that could be more devastating than 9/11….a nuclear weapon or dirty bomb.  As Commander In Chief of the armed forces it is his responsibility to insure that this will not happen.   It is an awesome task, one that must be mistake free, and thus far the President has performed marvelously.   Furthermore, he is on firm constitutional ground in signing this bill.  Article I, Section 9, clause 2 of the Constitution, clearly states: “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.” 

I regard this passage as proof that President Lincoln was right, and President Obama, a brilliant Constitutional scholar, concurs.   It shows that the architets of American Democracy foresaw the possibility of a national security emergency that might require extraordinary measures which abridge the normal rights Americans enjoy.  That’s why the US Constitution, despite the limitations of this 18 century document in dealing with 21st century problems, was not intended  to be a “suicide pact.”

The measures President Obama is taking to wage war against the Jihadist is neither unprecedented nor unconstitutional.  What Americans  who are concerned  with protecting civil liberties for the majority of law abiding citizens should really be worried about is what will happen to our democracy if the Jihadists should succeed in detonating a dirty bomb or nuclear weapon in an American metropolis.

Should this happen, we will lose all of our civil liberties with popular consent!  People will be so frightened by the horror of it they will agree to anything if they think it will make them safer.   Alas, as odious as they are to Americans, those are the choices that confront us. This is what real  life is like in the era of the Islamic Jihad.  President Obama is choosing the lesser evil.

At War with the Jihadist

He is facing an Enemy that Lincoln couldn’t imagine


Playthell Benjamin

Harlem, New York

Deember 17, 2011

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