Remember when detention was in classrooms?

I love columns that require me to look for something in the U.S. Constitution. Here’s a selection from the Sixth Amendment: “In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial . . .” Hear that? Speedy. As in, it has to happen, and it has to happen expediently, not any time you feel like it. That appeared to be the reasoning behind a ruling from a U.S. district court that ruled indefinite detention of terror suspects unconstitutional, and subsequent legislation banning it.

The legislation has taken the form of an amendment in a routine bill outlining the 2013 defense budget. Prominent backers include, naturally, Rep. Ron Paul (R-TX), plus another Republican and two Democrats. Opponents include Reps. Buck McKeon (R-CA) and Lamar Smith (R-TX), who had this to say in a letter to colleagues in defense of last year’s defense authorization law that stripped the right to trial from terror suspects, including those who were U.S. citizens taken into custody on U.S. soil:

No one could possibly favor the unlawful detention of American citizens . . . [The goal of indefinite detention is to] reinforce the protection of American citizens from terrorist attacks.

Clearly these two are aware that the unlawful detention of American citizens is a bad thing; otherwise they wouldn’t deny that they favored it. How is not being assured of the right to trial, which is enshrined in a law older than and superior to the one passed last year, not unlawful? It also carries a presumption of guilt that turns at least 252 years of legal principle upside down. All in the name of protecting the American people, who would need only be tagged as a suspect to get the business end of the 2011 law.

I personally don’t have much problem with its authorization of military custody; a real terror attack would require the military’s involvement, especially if it started from a foreign country. But the Constitution is unequivocal about the right to trial. You can argue over to whom the Constitution as a whole applies – only American citizens, or just people who were in the country at the time? – until the cows come home, but it definitely applies to American citizens. To deny them a trial is patently illegal; to deny the others a trial is potentially inflammatory and could compromise the ability to ascertain vital intelligence. That is unsafe.

There are some things you should do in the name of counter-terrorism and some things you shouldn’t. A couple of good litmus tests are constitutionality and applicability to Americans, and this law has come out pretty acidic on both sides of the testing strip.

School detention would be much simpler

Lately, no political topics have interested me more than constitutionality and the separation of powers. That the separation in the U.S. is so clearly defined is refreshing to me, as I live under a head of state serving in the executive and legislative branches at the same time, and it’s not pretty. It came up in the news again after the White House objected to a provision of a defense spending bill, dealing with the detention and transfer of suspected terrorists.

The provision would require suspects to be held in military custody, as opposed to U.S. civilian prisons. Democrats are divided over this, with the White House and Sen. Dianne Feinstein (D-CA), among others, arguing that this bill limits the president’s authority to make decisions regarding national security issues. Sen. Carl Levin (D-MI), who chairs the Senate Armed Services Committee, argues that the presence of a “national security waiver” in the provision renders this point moot.

That might have made everything acceptable if not for the fact that, as the White House notes, the choice of which option is best for the nation’s security interests is different for every case and must often be made in a very limited amount of time. Where would they be detaining a suspect while they wait to hear back from Congress about whether or not they’ve cleared the waiver? In such instances I’d trust the judgment of the Joint Chiefs of Staff before anyone else’s judgment, least of all that of Congress, who has exhibited poor judgment on everything as of late.

The White House statement also points out that “the military does not patrol our streets.” Should the act of terrorism qualify as an act of war – meaning, explicitly sanctioned by another country’s commanders-in-chief, consistent with the definition of war – then there would be a role for the U.S. military. If it is one person or a group acting independently of their nation’s government, as it usually is nowadays, I would view it as a crime against American civilians, unless they were trying to assassinate the president.

The question then becomes, what is to be done about a foreign civilian who attempts a crime against American ones? As they would be a non-citizen, their eligibility for Fifth Amendment protections is highly questionable. It might be necessary to create new criminal laws dealing with these instances so this doesn’t become a point of disagreement for Congress and the White House again. That this doesn’t seem to be in the books already is dismaying.

Of course, as the White House also notes, if the suspect were captured on foreign soil, civilian facilities would have no role anyway. But laws for that are a whole other column.

It might be OK to sing “Bomb Iran” now

If the most recent thwarted terror plot wasn’t devised by the Iranian government, the two men who failed to carry it out may have just screwed it over in a very big way. But don’t expect many people to believe that this was simply a lone pair of wolves; I certainly don’t. If a smoking gun emerges implicating Iran, as a whole, you can bet there will be calls to scrap sanctions and start a war. In another sense, that could end up being the least appealing option.

The plot included the attempted assassination of the Saudi ambassador to the U.S., Adel Al-Jubeir, and bombing attacks on the Saudi and Israeli embassies in D.C. The pair, belonging to the state-sponsored Quds Force, made an interesting move by looking to a member of a notorious Mexican drug cartel for help with the assassination. Unfortunately, he happened to be a paid Drug Enforcement Administration informant. Whoopsies.

It’s dumb luck that the would-be attackers didn’t sufficiently vet their man. Otherwise, we’d already be drawing comparisons to 9/11 and the ensuing needed revenge. In that sense, though, the U.S. is already boxed into a corner. There’s no way they can afford another war, despite the short-term gains for the arms industry. We were more comfortable with the war in Afghanistan because we weren’t on the slow train to a recession then. Quite the opposite, in fact.

This will be a far more compelling argument against war with Iran than overtired platitudes about how wonderful peace is. True peace is only possible when nobody is giving you a conceivable reason to think about the alternative. An economically isolationist approach may end up being the way to go, although China and Russia would be needed for this to work. Making that happen is only marginally less difficult than a diplomatic solution to the Iran problem.

While I make no claims of expertise in the arena of counterterrorism, my best suggestion is a combined American/Saudi/Israeli effort to take out Iranian weaponry in all its forms. It would be similar to what was done in Libya in terms of actions, but this time the U.S. would have a legitimate stake in it. Speeding up the withdrawal processes in Afghanistan and Iraq would help with the costs. Let’s hope the Iranians hadn’t already thought of that, not to mention the risks of keeping a closer eye on Mexico.

This is what we talk about when we’re talking about scaling back on American military spending. There is a time and place for it, and this could be one of them. Iraq and Libya were not. But at least we have a foreign policy expert who could be of use. I’m just throwing that out there.

Meet the fright-wing extremists

When Jared Lee Loughner shot Rep. Gabrielle Giffords (D-AZ), we responded with political questions: Who or what did he support? Who or what did he really oppose? Who or what led him to such an act? After getting nowhere with such a discussion, we just decided he was crazy. Virtually the same questions are being asked about Anders Breivik in the wake of his shooting rampage in Oslo and Utøya, Norway, and his lawyer is invoking the insanity defense.

Breivik says he was punishing his victims, attendees of a Labor Party youth camp (or, as Glenn Beck so intelligently calls them, “Hitler Youth” – I’m not even surprised anymore), for “treasonous” friendliness to immigration, specifically the Muslim kind. The Atlantic Wire provides us with Breivik’s reading list, which includes blogs that focus on the global “threat” of Islam. They then ask if the right, in general, “owe[s] the world a . . . round of denunciations.”

Those with an abiding belief in nativism are by their nature on the fringes. But the blogs listed in the Atlantic article serve largely as aggregators of news articles on jihadist activity. When they do editorialize, they call for condemnation of acts that deserve condemnation, honor killings and terrorist recruitments among them. Had the attacks not taken place, people would dismiss these blogs as alarmist and somewhat prejudicial, but not dangerous. (I looked.)

The people behind the writings Breivik enjoyed do not necessarily incite the type of act he committed; simply by virtue of existing, they give Breivik and people like him justification. What one takes in when they read them, they take out, sometimes with a false perception that someone will thank them for what they do later. The writings themselves are not the real problem.

The most watered-down version of Breivik’s views would be generally regarded as right-wing, just as the most watered-down version of this guy’s views would be generally regarded as left-wing. But both are members of the fright wing, in which people, normally psychologically disturbed, resort to violence (or incite it) to achieve political ends. Fright-wingers can come from any place on the left-right scale. We only bring up that scale because it’s what we understand.

Therefore, it’s disingenuous to think of irrational acts such as Breivik’s through a political lens that most people consider rational. All we can really do is decide he’s crazy. And for those who were wondering, yes, he does sound like a terrorist to me.

I’ve got an Islamabad feeling about this

Today, at least one person will ask you where you were when you found out Osama bin Laden is dead. I was in my living room, talking on the phone with Adam about school, and he gave me the news after he read it online. As I write this, I’m watching President Obama give his statement and wondering about the political implications of this operation, at home and abroad.

There is no question that in the short term, at the very least, this news has already given a huge boost to American morale. As we all do when something of this magnitude takes place, we camped out in front of CNN, where we saw dozens, hundreds, of people running to the White House to cheer and sing patriotic songs. This is the only death that would ever result in a party. In that moment, all partisanship over the issues of the day was forgotten, and the entire United States was on the same page.

As much as I hate to rain on a well-deserved parade, let’s not kid ourselves about what could happen next. I guarantee that the rest of al-Qaeda has been planning for this for years. To the best of our knowledge, only bin Laden and a few of his family members are dead, leaving an untold number of replacements behind. The word “retaliation” has come up more than once; my guess is bin Laden would have passed on instructions for it well before last night.

Furthermore, bear in mind that the attack took place outside of Islamabad, the capital of Pakistan. That country’s authorities have worked with the U.S. military and intelligence officials before. However, the relationship has always been shaky, given that Pakistan is one of the most, if not the most, anti-American country in the world. If the U.S. plans to take its eye off Afghanistan, they will only move it east.

But the fact that a U.S. intelligence operation has been so successful, even if it took a long time, will do more to renew faith in the country’s defense policy than anything or anyone else has since General David Petraeus’s Iraq surge. That will bode well not only for the Pentagon, but for Obama. He gave the word to execute the operation; a good chunk of the credit will go to him, for that and for his kickass statement. But there is no need to politicize the attack. The military did the leg work, and the honor should and will be theirs.

So enjoy this day. This is a good thing for America and the Middle East. Both may face new threats, but at least they’re rid of the oldest and worst. May he rest in pieces.

It’s just the radical kind, OK?!

If you want to get a better understanding of why so many people are upset over Rep. Peter King’s (R-NY) congressional hearings on homegrown radicalism of the Islamic persuasion, watch this. In both cases, one side of the argument cannot bring itself to admit that this particular variety of radicalism is a bigger problem at this point in time than others, only that they are all problematic and must all be opposed. They then either explicitly or implictly accuses the other side of discrimination.

It certainly gives off that appearance at first glance; after all, King is focusing specifically on radical Muslims in the U.S. He is quick to point out, though, that two decades ago, he held similar hearings on militia groups of the right-wing persuasion, who were a more pervasive threat in those years. Considering that he has been a vocal opponent of illegal immigration, the closure of Guantánamo Bay, the repeal of DADT and not using torture during terrorist interrogations, you couldn’t call him a lefty.

King’s position on these hearings is that it’s less about race or religion than behavioral patterns. That position was bolstered by a comment from an American-born man whose son converted to Islam and is now charged with killing an Army private. It’s nothing inborn, he says; Islamic radicalism is “programmed” into susceptible people. He adds that he has “law-abiding” Muslim family members, for good measure.

Have you noticed how often I’ve had to clarify that we’re talking about radical Islam? You don’t hear me, King or any other reasonable person accusing all Muslims of being terrorists. As Ann Coulter once put it, “Not all Muslims are terrorists, but all terrorists are Muslims.” Even she gets it more than the people criticizing King for perceived prejudice. It’s certainly risky to say that all terrorists are Muslims, but the latest attempted attackers all have been.

If there is going to be any plan to eradicate these attacks, we must clarify exactly what we’re watching for. There’s no sense in stopping everyone of Muslim appearance at the security gate (the part Coulter didn’t get). Instead, the government’s efforts should be based less on demographics than psychographics – variables relating to personality, behavior, attitudes and values. Using Islam to justify violence would fall under that umbrella.

In the meantime, everyone should pay careful attention to the testimonies before passing judgment on what they’re for. The people giving them seem to know what’s up.

For the sake of national security and stuff

Whereas the answer to all questions of U.S. politics can be found by watching The West Wing (I have the first five seasons on DVD, thanks to Adam), be it resolved that the right to privacy is inherent in the Constitution, seeing as almost any government violation of it would entail an unreasonable search or seizure. (Watch episode S01E09, “The Short List,” for more on this.) I say “almost” because the extension of three key provisions of the Patriot Act may run into some constitutional barriers.

The provisions are as follows: counterterrorism offices will be able to use business records to monitor suspected terrorists, with court approval; they will be able to monitor more than one electronic device in the possession of a suspected terrorist, with or without court approval; and they will be allowed to gather intelligence on non-citizens with no affiliation to known terrorist groups. I take it you don’t need court approval for non-citizens.

Ironically enough – or at least it was before I realized that I’ve pointed this out about five times by now – congressional Republicans appear less interested in the judicial issues at hand than their Democratic counterparts. The latter party attempted to slip in an amendment requiring that all relevant investigations be in line with the Constitution; it was defeated by party lines. For national security’s sake, or something.

Rep. Lamar Smith (R-TX) also said the extension, which would run until 2013, would allow Congress to “study the law” and make changes to it. In the meantime, and you know why, he says everything must remain in place. That seems reasonable enough to me. He’s certainly not making it a zero-sum game, in which you’re with the Patriot Act or you don’t like national security. Those days, thankfully, seem to be over.

I personally have no objection to any of the three provisions, as long as there is a damn good amount of evidence before counterterrorism offices use them. But their constitutionality is neither for me nor for Congress to determine. According to Smith, the courts have consistently backed up such activities. Only if the original provisions got that back-up earlier does Congress not have to bother checking. Besides, it’s a factor in all legislation, is it not?

At best, while the Democrats’ suggestion is admirable in sentiment, it may be more cosmetic than anything else. They should stick to the finer points of privacy protections.

Where’s the brief?

It’s time once again for The Future American’s FAIL OF THE WEEK! Every Saturday, I name a person or group who has spent the past seven days behaving in a particularly idiotic way. Since it’s my belief that idiocy knows no politics, nobody is safe.

This week’s fail was brought to you by the Office of the Director of National Intelligence. I’m giving it to the office in general because we have yet to pin the blame on a single person for the director himself, James Clapper, not knowing of a foiled terror plot in London before Diane Sawyer told him about it an interview. I dare say it was a very “In what respect, Charlie?” moment for the poor guy, and he’s the last person who should be having one of those.

The plot had been foiled that morning, and the interview took place later that day. White House counterterrorism adviser John Brennan had to pick up the slack for Clapper by explaining to Sawyer how serious the plot was and the implications it carried. Homeland Security Secretary Janet Napolitano was also present. I figure neither one of them was too pleased with Clapper or his staff; no doubt he had a good talking-to once they were safely off-camera.

Had our semester not finished a couple of weeks ago, this story would have been perfect for someone’s “PR in the news” presentation. Perhaps it will amount to nothing more than a PR glitch in the end; it certainly raises questions about how Clapper stays informed day to day, and the onus is on him to prove that he’s running a tight ship. On Parker Spitzer, however, the hosts suggested that this may be a sign that the Office of the DNI is an unnecessary layer of bureaucracy, given the many intelligence positions that already exist within the government.

I personally favor synergizing the efforts of all intelligence and counterterrorism offices. However, it may be necessary in the future to merge a few of them together, and appoint the best director available to Clapper’s position. Questions were raised about him before he took the wheel; in the column I wrote at the time, I noted that the questions specifically dealt with his ability to work effectively with others. Now it seems that he’s not as detail-oriented as he ought to be. Once again, it’s up to him to prove otherwise.

That takes care of that. Now then, seeing as it’s Christmas Day, I’m giving everyone an extra present: the chance to vote for Fail of the Year 2010! Last year I picked it myself, but I hope to make the voting process an annual tradition. Follow this link to select one of the year’s top five fails. The winning column will be re-posted next week. Enjoy your holiday, if you have one today! (I don’t, for the record, but I imagine most of you do.)

Goodbye, yellow level load

It might be offensive for me to admit this, but seeing “Terror Level: Elevated” on the Fox News crawl every single day always made me laugh. What does that mean? That there’s always a significant risk of a terror attack in the wake of September 11? Thanks for the update, Department of Homeland Security. Whatever it meant, I’m glad the AP is now reporting that the color-coded terror warning system is drying up and withering away, as well it should.

“The post-9/11, Bush-era system has been criticized as too vague to be useful in communicating the terror threat to the public, either ignored or the butt of jokes.” That alone should tell you how successful it was in alerting Americans to the possibility of an attack. After 9/11, the entire country was as vigilant as ever; everyone wanted to know what to prepare for and how. But after a while, they simply looked up, read “orange” and went about their business. All the color system achieved was telling them an attack was more likely today than it was yesterday. As if they can’t figure that out.

Based on what? If U.S. intelligence is picking up anything that may signify a forthcoming attack, it might be prudent for them to tell everyone through the press as much as they know and how they know it, or at least as much as they can say without revealing their own security secrets. It would send a message to the terrorists in question that they really can’t hide, and a surprise attack won’t be as much of a surprise as they wanted. What if they had a hijacking and nobody came? Just pointing that out.

A proposed new model would cut the terror warning system down from five levels (low, guarded, elevated, high, severe) to two: elevated and imminent. An imminent threat would not last more than a week and would not give anyone a “high and ambiguous” impression of an oncoming attack. Furthermore, intelligence officials would be expected to go public with their information, as I’d suggested. No word on when that might be implemented.

I’m not so sure I like elevated vs. imminent, though; “elevated” implies that there’s something below it. How about normal vs. imminent? Or regular vs. unleaded? Or kinda scary vs. really bloody shit-your-pants scary? Either way, it would make more sense as having two lower levels you never end up using. (The article mentions criticism of their ignorance of the color spectrum; green comes between yellow and blue.)

I wonder how many people will even notice that the color system is gone? Just asking that question drives home the point again about how useless it was.

It’s not just for swarthy males anymore

Almost immediately after the initial shock of 9/11 wore off, a contingent of people began pleading with the government and their fellow Americans to avoid racial profiling when seeking out terror suspects. At the time, their only back-up was Timothy McVeigh. It may have taken nine years, but whoever the puppetmasters are, they wised up.

The D.C.-based National Security Preparedness Group published a 42-page report on Friday claiming that terror threats against the U.S. have started to come from within much more than from beyond. It also claims that people of all races, genders and economic, career and educational backgrounds have been found to make these threats. The only consistencies are “a newfound hatred for their native or adopted country, a degree of dangerous malleability and a religious fervor.”

For those who didn’t score so well on the verbal portion of their SAT, “malleability” indicates that a person is easy to persuade. In this context, “dangerous malleability” means these people are about incapable of critical thought, which is probably a trait found among all followers of terrorist leaders. A good critical thinker would realize early on that martyring oneself through terrorism cannot possibly work out well.

In any case, there aren’t many ways to weed out people with the above characteristics that don’t involve crossing constitutional boundaries. However, there are a few possibilities. I expect that the Internet would be a gold mine of information on how domestic terrorists organize themselves. Some undercover work of the sort normally reserved for child predators would be in order. With social media and blogging overtaking the web as we once knew it, “hacking” in the traditional sense would be minimal. And if the Internet doesn’t work, some good old-fashioned spying might.

Through this, it ought not to be too difficult to figure out the single person that domestic terrorists-to-be have in common. We discussed last week how cleric Anwar al-Awlaki is an example of one of these. At the time I wrote that it would be more productive in the long run to interrogate him and keep him confined than kill him on sight. This is why. If they make speech that incites terrorism or directly connected to it, a search warrant can be easily obtained.

The most notable terrorists of the past year may have been Muslim, but terrorists in general need not be. Political fervor can also motivate people who would resort to mass violence. I don’t expect that variety of terrorism to be taken as seriously as the religiously fundamentalist kind, but you might as well add it to the list of factors now.