In Britain, the Labour Party, led by Prime Minister Gordon Brown, is attempting to enact legislation empowering the Government to detain terrorist suspects for 42 days without bothering to charge them with any crime (as a result of post-9/11 legislation, the British Government may do so now for 28 days). Much of the opposition to this expansion of the Government's detention power comes from the British Right, which sees it as an intolerable expansion of unchecked government power and a severe erosion of core Western liberties. Factions within the British Left are opposed to the legislation for the same reason.
The official position of the British Conservative Party is to oppose the legislation, and former Tory Prime Minister John Major -- who himself was the target of a 1991 bombing-assassination plot by the IRA -- wrote an Op-Ed in the Times Online emphatically opposing these increased detention powers and also opposing new DNA and other domestic surveillance programs. Headlined "42-day detention: the threat to our liberty -- The Government's plan is simply part of an assault on our ancient rights," the conservative former Prime Minister wrote:
[T]he case for war was embellished by linking the Iraqi regime to the 9/11 attacks on New York -- for which there is not one shred of evidence. As we moved towards war, that misinformation was compounded by the implication that Saddam's Iraq was a clear and present danger to the United Kingdom, which plainly it was not.
These actions damaged our reputation overseas. And, at home -- on the back of the threat of terror and two serious incidents in London -- they foreshadowed a political climate in which civil liberties are slowly being sacrificed.
We now know that, despite repeated denials, our Government was complicit in rendition, or -- to put it in plain terms -- the transfer of suspects out of civilised jurisdiction to a place where they could be held without charge for a lengthy period.
Although the intention was presumably to garner information, such action is hardly in the spirit of the nation that gave the world Magna Carta, or the Parliament that gave it habeas corpus.
I don't believe that sacrifice of due process can be justified. If we are seen to defend our own values in a manner that does violence to them, then we run the risk of losing those values. Even worse, if our own standards fall, it will serve to recruit terrorists more effectively than their own propaganda could ever hope to. . . .
The Government has introduced measures to protect against terrorism. These go beyond anything contemplated when Britain faced far more regular -- and no less violent -- assaults from the IRA. The justification of these has sometimes come close to scaremongering. . . .
The Government has been saying, in a catchy, misleading piece of spin: "If you have nothing to hide, you have nothing to fear." This is a demagogue's trick. We do have something to fear -- the total loss of privacy to an intrusive state with authoritarian tendencies. . .
So is a society in which the right to personal privacy is downgraded. These days a police superintendent can authorise bugging in public places. A chief constable can authorise bugging our homes or cars.
The Home Secretary can approve telephone tapping and the interception of our letters and e-mails. All of this is legal under an Act passed by the Labour Government. None of this requires -- as it should -- the sanction of a High Court Judge. . .
No one can rule out the possibility of another atrocity -- but a free and open society is worth a certain amount of risk. A siege society is alien to our core instincts and -- once in place - will be difficult to dismantle. It is a road down which we should not go.
That is an expression of conservatism true to its ostensible principles of individual liberty and limited government power. And, in England, principled conservatism on such issues is not unique to Major. The Tory MP leading the opposition to expanded detention powers, David Davis, resigned his seat in order to run again specifically on a platform of opposing due-process-less detentions and similar expansions of government surveillance power:
In his resignation statement, he said he feared 42 days was just the beginning and next "we'll next see 56 days, 70 days, 90 days". But, he added: "In truth, 42 days is just one -- perhaps the most salient example -- of the insidious, surreptitious and relentless erosion of fundamental British freedoms."
He listed the growth of the "database state," government "snooping" ID cards, the erosion of jury trials and other issues.
"This cannot go on. It must be stopped and for that reason today I feel it is incumbent on me to make a stand," said Mr Davis.
This skepticism of Government power -- which lies not only at the heart of most key British reforms over the last 8 centuries but also at the heart of the American Founding -- is precisely what has been missing almost completely from the American Right, for which there is now no federal government power too great or too unlimited to embrace. The American right-wing faction which now dominates the Republican Party is defined largely by their insatiable lust for limitless government power in virtually every realm -- spying, detentions, interrogations, and war-making. Hence, while British conservatives largely oppose a policy merely to allow the Government to detain terrorist suspects for 42 days with no charges, our "conservatives" react with fury over the U.S. Supreme Court's rejection of the President's claimed authority to hold such suspects in Guantanamo for 6 years -- really indefinitely -- without providing them any meaningful process at all. In fact, the Bush administration asserted the right to detain even U.S. citizens, arrested on U.S. soil, indefinitely, with no charges or any contact with the outside world, for years, and they proceeded to do so, with virtually no opposition of any kind from our self-proclaimed right-wing defenders of individual liberty or limited government.
The rare exceptions on the U.S. Right which have opposed such Draconian powers -- the Ron Pauls, Bruce Feins and Bob Barrs -- have largely been excommunicated from the GOP Church, because the greatest blasphemy on the American Right is to oppose endless expansions of Government power or to insist on some limits on the Government's surveillance and detention authority.
While British conservatives rally to defeat the Government's attempt to increase its detention powers, the U.S Right is plagued by -- defined by -- a truly warped, deeply authoritarian and profoundly un-American mentality. That mentality is exemplified by this characteristically deranged reaction to yesterday's Supreme Court ruling by National Review's in-house legal expert, former prosecutor Andrew McCarthy:
A Courtroom, er, Battlefield We Can Win On [Andy McCarthy] An old government friend emails with a practical response to the Supreme Court:Let's free all Gitmo detainees...on a vast, deserted, open and contested Afghan battlefield. C-130 gunship circling overhead for security. Give them all a two minute running head start.
To our country's pseudo-tough-guy "conservatives," the very idea of merely requiring the Government to prove the guilt of the people it wants to imprison for life or execute is so intolerable, so offensive, that they want instead to release them all -- including detainees who are indisputably innocent -- onto a battlefield so that they can be slaughtered by our planes with no trial at all. Moments earlier, McCarthy declared the Supreme Court ruling to mean that "the American people had lost to radical Islam, 5 to 4" -- in the authoritarian eyes of the American Right, the American people "lose" when our Government is required to prove the guilt of people before it can imprison them for life or kill them. The contrast between the British Right and the American Right could not be more glaring. The former is at least mildly faithful to the principles they espouse, while the latter has morphed completely into an authoritarian, government-power-worshiping faction that fantasizes it's waging glorious war against -- to use Antonin Scalia's politicized term -- "radical Islamists," but which is only at war with its own claimed principles and the principles on which the country was founded.
UPDATE: I was just on WNYC debating yesterday's Supreme Court ruling with Jed Babbin, one of the most enthusiastic and active participants in the Pentagon's "military analyst" program (Babbin was one of the "military analysts" on the indescribably propagandistic trip to Guantanamo, where they were led around by the Pentagon for a grand total of 3 hours and then came back and, in unison, pronounced Guantanamo free of abuse; Babbin is still squeezing propaganda mileage out of that trip, as he said this morning that he was at Guantanamo and there was no abuse. Detainees even play soccer there, he said).
The question I put to him again and again was one that he simply couldn't answer: how and why would any American object to the mere requirement that our Government prove that someone is guilty before we imprison them indefinitely or execute them? That is all that yesterday's Supreme Court ruling required -- not that detainees be released, but that their guilt be proven in a fair proceeding. The fact that the Right is so enraged by this basic requirement vividly reveals the authoritarian impulses which define them. After all, key McCain ally Lindsey Graham is actually threatening to amend our Constitution to limit the right of habeas corpus in response to yesterday's ruling. The authoritarian radicalism of this faction can't be overstated.
Glenn Greenwald was previously a constitutional law and civil rights litigator in New York. He is the author of the New York Times Bestselling book "How Would a Patriot Act?," a critique of the Bush administration's use of executive power, released in May 2006. His second book, "A Tragic Legacy", examines the Bush legacy.