Conservatives Drop Their Love for the Constitution

Terrorists, conservatives say, hate us for our freedom, so they must be stopped-even if that means sacrificing our freedom in the process.


Santayana defined fanaticism as redoubling your effort while losing sight of your goal. America's recent discussions about the war on terror would give him few grounds to change his view.

Several GOP presidential candidates have said they would support bringing back waterboarding, a practice the U.S. prosecuted as a war crime after WWII. Apparently it's only torture when the other side does it.

Last week the Senate was consumed with debate over a defense bill. Among its provisions: an amendment by New Hampshire Republican Sen. Kelly Ayotte to nullify an executive order banning torture. Another proposal: allowing U.S. citizens captured on U.S. soil to be held indefinitely without charge by the U.S. military. (An amendment to strike that language from the bill failed, despite the commendable support of Virginia Sens. Mark Warner and Jim Webb.) Yet another provision would require civilian authorities to hand over terrorism suspects to the military.

Supporters of the detention provision noted language stipulating that the "requirement" to detain a person in military custody "does not extend to citizens in the United States." But as critics of the measure noted, there is a difference between what is required and what is allowed. The bill "does not preclude U.S. citizens from being detained indefinitely," according to Rep. Justin Amash. Sen. Lindsey Graham put it more bluntly: the bill declares "that the homeland is part of the battlefield" and those suspected of terrorism can be held indefinitely without charge, "American citizen or not." 

What's behind this push to militarize the domestic fight against terror? Not the military. The Pentagon's top lawyer, Jeh Johnson, recently warned against "overmilitarizing" counterterrorism."There is risk in permitting and expecting the U.S. military to extend its powerful reach into areas traditionally reserved for civilian law enforcement in this country," he said in October. 

And it's not like civilian authorities have been overwhelmed. The Heritage Foundation has produced a handy summary of the 40 terrorist plots foiled since 9/11. That's 40—as in four per year. Some of them posed serious danger. But some of the "plots" are almost laughable, involving losers with delusions of grandeur. Take Iyman Faris, whose plan was to make the Brooklyn Bridge collapse by using a blowtorch. Hamid Hayat lied about attending a terrorist training camp, but he wasn't plotting anything more specific than generic "jihad." Raja Lahrasib Khan's "plot" consisted of trying to ferry $1,000 to radicals in Pakistan. 

Then there is Jose Pimentel, recently captured by New York authorities in a case so weak federal authorities refused to participate in it or appear at the press conference announcing Pimentel's arrest. Reports say the unemployed Pimentel made threats while high on pot, and may have received too much help from an informant when he made a pipe bomb by scratching the sulfur off match heads. We're going to blue-pencil the Constitution for this?

Conservatives complacent about the response to domestic terrorism ought to keep in mind what the Obama administration has to say about the subject. Two years ago the Department of Homeland Security identified a principal threat as "rightwing extremism," epitomized by such dangerous elements as returning veterans, abortion opponents, and anyone "rejecting federal authority in favor of state or local authority." That would include people like James Madison, FYI. ("The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.")

Conservatives also ought to short-circuit the circular reasoning about accused terrorists  that often dominates discourse on the right. That reasoning goes like this: X says he is not a terrorist and thinks he should be able to prove it in a civilian court. But he should not enjoy that luxury, because terrorists do not deserve civilian trials—and X is a terrorist.

Conservatives also ought to renew their skepticism about government's ability to get things right – something they seem to doubt in every area except national security. Remember the jokes about health care being run with the efficiency of the Post Office and the compassion of the IRS? Now in particular is not a good time to adopt unshakable faith in the military's infallibility – not after U.S. forces created a diplomatic disaster by calling in a NATO airstrike against friendly Pakistani forces.

Terrorists, conservatives say, hate us for our freedom, so they must be stopped—even if that means sacrificing our freedom in the process. Somewhere up in Heaven, Santayana is sighing.

A. Barton Hinkle is a columnist at the Richmond Times-Dispatch, where this article originally appeared.