Defining Disloyalty

The Constitution
The Constitution
The supreme law of the United States of America. The first three Articles of the Constitution establish the rules and separate powers of the three branches of the federal government: a legislature, the bicameral Congress; an executive branch led by the President; and a federal judiciary headed by the Supreme Court. | Photo: | The Constitution, Ammendment, Rights, America, Liberty,

Wesley Clark thinks he knows it when he sees it.

One of the most annoying arguments since 9/11 is that "the Constitution is not a suicide pact!"

Sure, the argument goes, the Constitution techically says people have inalienable rights. The government can't lock them up forever without a trial or spy on them without probable cause. But that obviously wasn't intended to protect evil people! Muslim terrorists having rights, come on now -- these people want to kill us!

Case in point, former Democratic presidential contender Gen. Wesley Clark, who recently said the government should not only lock up people "who are disloyal to the United States as a matter of principle" it should take steps against people who are potentially disloyal: "We have got to identify the people who are most likely to be radicalized. We've got to cut this off at the beginning ... there is a role for government to step in to prevent a dissenter from becoming an active shooter, or worse."

Clark subsequently insisted that when he said radicals should be "segregated" and "separated from the rest of society" he didn't mean we should lock them up in internment camps, but he didn't explain how else this was going to work (make them stand in the corner?).

This kind of thinking actually predates the war on terror. As long as I've lived in the U.S., law enforcement has been complaining that actually respecting people's rights -- no searches without search warrants, letting them have lawyers present when they're questioned, etc. -- was nothing but a get-out-of-jail-free card for the bad guys. For example, Ed Meese, Reagan's attorney general, once said that giving suspects their Constitutional rights only protects guilty people; if you were innocent, you wouldn't be a suspect.

9/11 made it worse by intensifying the fear that the security nanny state depends on: instead of a murderer getting out of jail to kill again, it's a vast army of terrorists who will murder us in our bed if we don't confine everyone who looks suspicious to Gitmo. The Constitution doesn't apply when the enemy is so scary!

In reality, of course, the Constitution does apply. It applies to the worst of us -- terrorists, neo-Nazis, the Klan, child rapists, serial killers. Everyone. It doesn't matter whether you're a horrible human being or a saint, innocent or guilty. It certainly doesn't matter that you think "disloyal" thoughts if you're not committing crimes based on them.

And that's a good thing. As Justice Lewis Powell put it, it's very easy for even decent governments to assume anyone who questions them is an enemy of the country. During the Bush years, right-wing pundits shrieked endlessly that anyone who questioned the government was de facto a terrorist-supporting traitor (at least as long as we had a Republican in the Oval Office). Giving legal advice to alleged terrorist groups on how to clear their names has been treated as "material support" for terrorism, unless it's a terrorist group that has support in Washington.

Which, of course, is another problem, that governments are often selective in how they define disloyalty. Clark, for example, is all about "segregating" radical Islamists, but doesn't say anything about, for example, the right-wing militias who proclaim the entire federal government is invalid. Or how about G. Gordon Liddy, who once told his radio audience how to kill federal agents wearing body armor?

Likewise, lots of American, non-Muslims become radical to the point of violence: Timothy McVeigh, Eric Rudolph (anti-abortion Olympics bomber), the Unabomber, Kevin Harpham (planted a bomb at an MLK Day parade in Spokane) or Jerad and Amanda Miller (antigovernment radicals who went on a shooting spree last year), to name a few. I'm strongly skeptical that Clark would really advocate policies on disloyalty that would harass or segregate millions of white Americans.

Not that I think nonviolent, noncriminal right-wing dissent should be targeted -- but neither should Muslim dissent. As long as someone's not committing actual acts of war, crime or terrorism, targeting anti-American thinking is not only unconstitutional, it's just plain wrong. Ugly as I find the beliefs of the far right, they're entitled to believe them and voice them. Ditto extremist Muslims, Christians, commies, Nazis, and whatever new brand of crazy the 21st century has waiting for us.

The Founding Fathers had hands-on experience dealing with a government that played hardball with the disloyal colonists -- locking them up for their views, spying on them, searching their homes and suppressing dissent. One of the reasons for the Bill of Rights was to ensure the new federal government wouldn't go down the same route.

If we were back in 1776, I guess we know which side Clark would be on.

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Updated Jun 20, 2018 4:17 PM UTC | More details


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