Amid the elegies for the dead and the ceremonies of remembrance, seditious questions intrude: Is there really a war on terror; and if one is indeed being waged, what are its objectives?
The Taliban are out of power. Poppies bloom once more in Afghan pastures. The military budget is up. The bluster war on Iraq blares from every headline. On the home front the war on the Bill of Rights is set at full throttle, though getting less popular with each day, as judges thunder their indignation at the unconstitutional diktats of Attorney General John Ashcroft, a man low in public esteem.
On this latter point we can turn to Merle Haggard, the bard of blue-collar America, the man who saluted the American flag more than a generation ago in such songs as “The Fightin’ Side of Me” and “Okie From Muskogee.” Haggard addressed a concert crowd in Kansas City a few days ago in the following terms: “I think we should give John Ashcroft a big hand…[pause]…right in the mouth!” Haggard went on to say, “The way things are going I’ll probably be thrown in jail tomorrow for saying that, so I hope ya’ll will bail me out.”
It will take generations to roll back the constitutional damage done in the wake of the attacks. Emergency laws lie around for decades like rattlesnakes in summer grass. As Joanne Mariner of Human Rights Watch points out to me, one of the main legal precedents that the government is using to justify detaining “enemy combatants” without trial or access to a lawyer is an old strikebreaking decision. The government’s August 27 legal brief in the Padilla “enemy combatant” case relies heavily on Moyer v. Peabody, a Supreme Court decision that dates back to 1909.
The case involved Charles Moyer, president of the Western Federation of Miners, a feisty Colorado trade union that fought for such radical reforms as safe working conditions, an end to child labor and payment in money rather than in company scrip. As part of a concerted effort to crush the union, the governor of Colorado declared a state of insurrection, called out the state militia and detained Moyer for two and a half months without probable cause or due process of law.
In an opinion that deferred obsequiously to executive power (using the “captain of the ship” metaphor), the Supreme Court upheld Moyer’s detention. It reasoned that since the militia could even have fired upon the strikers (or, in the Court’s words, the “mob in insurrection”), how could Moyer complain about a mere detention? The government now cites the case in its Padilla brief to argue that whatever a state governor can do, the President can do better.