When Faisal Shahzad attempted to explode his absurdly amateurish car bomb in Times Square and was quickly caught, the response was one we've come to expect. It didn't matter how forthcoming Shahzad was -- some conservatives were terribly disappointed that he wasn't being tortured and characterized the whole thing as evidence of the Obama administration's unconscionable weakness. For some reason, they decided to focus on the Miranda warning we've seen recited on television thousands of times. "They Mirandized him, which I always find stupid on the part of our people," said Sen. Orrin Hatch. For some, the idea that when an American is arrested for a crime in America, we should apply American laws to him is incomprehensible.
A creative solution was soon found: Why not just wave a magic wand and declare him a foreigner, so we could stop worrying about laws and the Constitution? Sen. Joe Lieberman stepped up to the plate, with a proposal to strip citizenship from people who are suspected of being involved in terrorism. A draft of the bill is not available, but Lieberman's office told The Washington Post's Greg Sargent that the senator's proposal would allow the State Department to decide that an American is in cahoots with a terrorist group and then strip that American of his or her citizenship.
Thirty-five years after the House Un-American Activities Committee was disbanded, we continue to argue about what, and who, is truly American. Politicians like Sarah Palin declare their supporters to be the "real Americans," the Arizona Legislature instructs the state's law-enforcement officers to begin checking the papers of anyone who looks not quite American enough, and a crew of hardy patriots continues its crusade to convince the rest of us that the president himself is a foreigner. We should be able to agree, though, that in a country of immigrants and immigrants' children, what binds us as a nation is our commitment to a set of values. Unfortunately, opportunities to betray those values abound -- and some can't resist the temptation.
Though our history is full of stories of innocent people railroaded by the system, only since September 11, 2001, have some politicians embraced the idea that "innocent until proven guilty" is a value we ought to reject outright. For instance, you might remember the case of Jose Padilla, the American arrested in Chicago's O'Hare airport in 2002 on suspicion of planning to explode a "dirty bomb." When asked about him, President George W. Bush said, "This guy Padilla's a bad guy" -- and that was that. The administration decided it needed to grant Padilla no due process whatsoever -- no formal charges, no right to see a lawyer, nothing. Padilla spent three and a half years in a program of solitary confinement and sensory deprivation that successfully drove him insane before the Bush administration finally relented to the courts and put him on trial. Had they not suffered a string of court losses over the manner in which they were treating detainees, the Bush administration clearly would have let Padilla rot without any form of due process.
The argument the Bush administration then made is now creeping back: The president had the ability to order an American arrested and jailed for life, for whatever reason he liked. When you think about it -- or about Lieberman's citizenship-stripping proposal -- it's always useful to ask yourself, "What if the politician I hate most was the president. Would I trust him or her to carry this out in a way that wouldn't be horrifying?"
That thought experiment should give you pause. Because one of the bedrocks of a constitutional system isn't that we trust our leaders but that we don't have to trust them. We establish institutions and procedures that make abuse much more difficult. For all the power officials may be granted, there are some places they are forbidden to tread. The president can't just order people locked up for life if he decides, "This guy's a bad guy."
Though no one has done a poll on the Lieberman proposal yet, it's a good bet that a majority of the public would be in favor of stripping citizenship from "bad guys." The unfortunate fact is that at any given time, large portions of our population are ambivalent about the rights guaranteed in the Constitution, especially when those rights are used by people they don't like.
We learn what our rights mean when they are exercised by people we don't like -- by neo- Nazis using free speech to proclaim their hateful ideology or by serial killers availing themselves of lengthy appeals of their sentences. We get reminded at those times that just as we don't trust the president to be judge and jury, basic American rights aren't given out only to those we decide are righteous. What makes us free are the institutions we have created and the liberties we have cast into our laws.
When John Adams drafted the Massachusetts Constitution in 1780, he wrote that the powers of the government's branches had to be separated "to the end that it may be a government of laws, and not of men." When the Constitution was being written just a few years later, Adams and the other framers agreed that there were some rights so fundamental to the kind of nation they were creating that those rights had to be placed outside the political whims of the moment. These are enshrined in the Bill of Rights -- the right to say what you want, practice your religion, and receive a fair trial if you're accused of a crime, among others. They aren't reserved to people who aren't "bad guys," and they can't be taken away by an act of Congress, a popular referendum, or an executive order from the president.
We should give credit where it's due and acknowledge that some conservatives have recoiled from Lieberman's citizenship-stripping proposal. Republican House Leader John Boehner rejected the idea immediately. "If they're a U.S. citizen, until they're convicted of some crime, I don't know how you would attempt to take their citizenship away," Boehner said. "It would be pretty difficult under the U.S. Constitution." Even Glenn Beck, of all people, came out against it. Faisal Shahzad, Beck said, "has all the rights under the Constitution. We don't shred the Constitution when it's popular. We do the right thing."
So once again, we are presented with an opportunity to examine what "American values" are. Our faith in those values gets tested when upholding them means being offended, or tolerating those who make us angry, or being frustrated with the slow pace of justice, or allowing bad people to be treated with fair procedures, or accommodating ourselves to some measure of fear and uncertainty. But being American ought to mean that we can stand up and pass that test. We can muster the strength to say, yes, liberty is sometimes uncomfortable, justice for all can be frustrating, freedom is untidy, but even so we will not turn our back on those values. That's what makes us American -- or ought to.
