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Is America a Battlefield?

March 10, 2013

The recent Senate filibuster of the President’s CIA Director nominee and the ACLU’s investigation into police departments using military-style weapons are connected.  Both are also connected to law enforcement agencies’ recent purchases of armored military vehicles for domestic use.  The connection that this writer sees is this:  Opponents of the filibuster concerning a Presidential nominee’s connection to drone strikes and questions pertaining to domestic use of the same are part and parcel of a post-9/11 belief held by many that the ‘Global War on Terror’ means that everywhere – America included – is a battlefield, and that being the case, extraordinary, ‘wartime’ measures are necessary to combat the shadowy foe.  This is also reflected in the growing militarization of our police forces, ostensibly to fight the ‘War on Drugs.’

The common link here is the use of ‘war’ in order to justify extraordinary infringements upon our liberty.  By that, I mean that a police force that is a de facto military force becomes an army of occupation – one a civilian population cannot resist.  Drone strikes against ‘terror suspects,’ as defined by an Executive Branch official, without charges having been files, a trial conducted or guilt established, is another infringement, in that our rights to due process, to a speedy and fair trial, to confront our accusers, to know the charges against us, to defend ourselves, to the presumption of innocence and to having a jury of our peers be judge of our innocence or guilt all disappear once it is an accepted fact that one man can be our accuser, prosecutor, judge, jury and executioner.

If we stop to consider this in light of the last time America was a battlefield – the Civil War – we can see how our forbears dealt with actual rebel armies on the march in Union territory, actual spies in our midst, and what they thought about what they did in the aftermath of a successful conspiracy to kill a sitting President had done its’ evil deed.

in 1866, a year after Lincoln’s assassination had followed hard on the heels of Appomattox, the Supreme Court ruled, in Ex Parte Milligan, that President Lincoln’s suspension of habeas corpus use of military courts was unconstitutional, because the Constitution remains in force wherever our flag flies, for so long as the courts can remain in session.  In other words, where an appeal to justice remains possible, the judge, not the soldier, is arbiter of the law.

in 1878, in the aftermath of Federal troops ending their occupation of the former Confederate states, Congress passed, and  President Hayes signed the Posse Comitatus Act.  Federal troops – soldiers – cannot be used for purposes of domestic law enforcement.  (Use of troops for law-enforcement goes by the name ‘martial law.’)  This is still recognized as a guiding principle of American law today, though it is usually applied to formally designated military organizations, such as the U.S. Northern Command, which has military responsibility for U.S. territory.

The blurring of the lines between police and military services is troubling in this regard.  A century and a half after the Civil War’s conclusion, we find ourselves living in a country where it is controversial to defend habeas corpus and due process against demands that ‘threats’ be ‘neutralized’ by Executive fiat, as if such a mortal threat to our security exists as to justify measures that match – and exceed those Abraham Lincoln used when the Army of Northern Virginia’s reveille sounded in his ears every morning – and which were rejected by the Supreme Court shortly thereafter.  Whether styled ‘police’ or ‘homeland security personnel,’ the ‘Duck Test‘ applies:  If it looks like a soldier, is armed like a soldier and rides around in an armored vehicle, it’s a soldier, no matter what the badge says.

Government is a useful, but dangerous servant.  Allowing a servant to become so well-armed and formidable as to make resistance to it impossible tempts an abuse that cannot be easily corrected.  It matters not if that abuse is made incrementally, and with the best of intentions:  The results are the same.  From Roman Emperors becoming captives of their Praetorian Guard to Caliphs giving way to their sultans to modern examples of national security states run amok, the end-result – loss of liberty without achieving safety from real or imagined threats – is the result.  We were warned, even before we became an independent nation, by none other than Ben Franklin.  We have a duty, as citizens, to ensure that the balance between order and liberty is maintained in that dynamic tension that allows government to keep order while respecting a liberty that, once lost, may be very hard to recover.

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