In an op-ed yesterday, Senator Feinstein hit the nail on the head when it comes to the Military Commissions Act. "We must track down, prosecute and punish terrorists," she wrote. "But we must never forget that we are a nation of laws. This makes us strong, not weak."
As Senator Feinstein's essay implies, the current debates over the MCA -- and its attendant debates over Guantanamo and habeas corpus -- are fundamentally a much larger dispute over whether or not the "the rule of law" is its own best defense.
The argument in favor is simple: in the long run, the theory goes, the best way to protect our nation is to protect the legitimacy of our political system. If the theory sounds familiar, that's because it is. It guided much of U.S. foreign policy during the Cold War -- so much, in fact, that the goal of empowering our military was almost always subservient to the larger goal of protecting the perceived legitimacy of our government. In the end, that legitimacy won the conflict at large -- and in my view, it's what will win the "War on Terror," too.
By contrast, the argument against the rule of law holds that the world is so cruel, and human beings so blindly violent, that we must always be prepared to suspend our core principles in order to to protect them. Needless to say, this is the paradoxical logic of the Military Commissions Act. More specifically, the MCA explicitly suspends habeas corpus -- the central tenet of the rule of law doctrine -- in the presumption that it unnecessarily impedes our security. After all, the thinking goes, if a core principle of our democracy only makes it harder to detain terrorists, and if it clearly wasn't enough to prevent terrorist attacks in the first place, why not just put it on hold for a while?
The answer lies in the fact that principles like habeas corpus are directed not so much towards those who violate the law as those who uphold it. When it comes to terrorism, therefore, the purpose of the rule of law is not so much to dissuade terrorists from carrying out their plans, but to persuade the rest of the global community to help us contain the threat.
Yet that will never happen so long as we neglect the very principles that make the rule of law possible. There's simply no way we'll enlist moderates the world over if we continue to suspend habeas corpus, say, or if we persist in holding detainees at Guantanamo.
In the end, that's why Senator Feinstein's essay yesterday was so salient. In addition to providing a succinct history of the Military Commissions Act -- its origins, its consequences, and, above all, its dangers -- she makes a clear and compelling case for why its most egregious provisions need to be repealed.
For as Senator Feinstein explains, the threat the Military Commissions Act poses to our democracy is far greater than any security it provides. Which is why we would all do well to follow her lead, and demand that Congress repeal or amend the MCA as soon as possible.
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