I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Wednesday, December 21, 2005

"Temporary" government powers almost never are

Kevin Drum points out that if we use a loose definition of "war" to determine the scope of Executive power (i.e., conflict against a hostile external force), rather than its traditional definition (i.e., an all-out war against a battlefield enemy), then the U.S. has been at "war" more or less continuously since 1941 (counting the Cold War), and will be at war without interruption for the next decade at least. That means that the "war" exception to our Constitutional liberties which many believe exists is not an "exception" at all, but is really the permanent state of things in the United States.

Along those lines, Todd Crowell, an author and former Senior Writer for Asia Week (who currently writes the Asia Cable blog on Asian political affairs), e-mailed me the following article he authored last summer which describes the creeping evolution and expansion of Malaysia's Internal Security Act, a law authorizing indefinite detention by the Government which was enacted as an "emergency" measure to contain a communist insurgency in 1960. That insurgency was defeated long, long ago, and the law not only remains, but has been used aggressively over the last 45 years by the (democratically elected) Malaysian Government to indefinitely detain and punish all sorts of political opponents of the Government.

When liberties are eroded, the process is gradual and incremental, and usually ends up at a destination which supporters of each incremental erosion don't foresee and wouldn't support. And once governments get their hands on ostensibly temporary and "emergency" new powers, those powers, with little debate or resolution, usually become permanent.

A Cautionary Tale
By Todd Crowell

Malaysia’s Internal Security Act (ISA) was originally enacted in 1960 during the "Emergency," the communist insurgency that engulfed the newly independent country in the 1950s and 1960s. That rebellion petered out long ago, but the law is still on the books, proof that "emergency" measures tend to linger long after the emergency has passed because they are useful to the authorities.

Originally aimed at communist insurgents, the Internal Security Act, which provides for unlimited detention without trial, has been used against all kinds of "security" threats, even common criminals, like forgers, and against political activists, student leaders, union bosses and journalists, anyone who challenges authority
Malaysia’s experience is a cautionary tale for the U.S., since, in the wake of the terrorist attack on New York and Washington on Sept. 11, 2001, the U.S. has been moving stealthily toward its own version of detention without trial, an internal security act in everything but name.

The prime example is Jose Padilla, an American citizen suspected of wanting to plant a "dirty bomb" in an American city, who has now been held in a naval detention center in South Carolina for three years without trial as an "enemy combatant." . . . .

Since 1960 more than 3,500 Malaysians have been held under the law that permits detention for up to two years without trial and allows the Home Minister to renew the detention order indefinitely. One detainee, Loh Meng Liong, was held for 16 years before he was freed in 1982. There is no maximum limit.

The Malaysian experience also demonstrates that torture and unlimited detention go hand in hand. Former ISA detainee Tian Chua, who is now information chief for the opposition New Justice Party, recalled at a recent gathering of former detainees, "We were routinely tortured during interrogations, stripped naked, beaten with broomsticks and threatened with rape."

Former Deputy Prime Minister Anwar Ibrahim was detained under the ISA as late as 1998 for opposing the P.M. He was later tried in court, convicted of sodomy and corruption and served six years in jail until his released last year. Ironically, he had been detained under the ISA as a young politician, protesting treatment of peasants.

The September 11 attacks on the U.S. gave the ISA a fresh lease on life since it provided former Prime Minister Mahathir Mohamad justification for more arrests. About 100 members of the banned Jemaah Islamiah organization, which is believe to have inspired, if not directed the October, 2002, Bali bombings, were detained under the act.

Washington used to regularly condemn Malaysia’s (and Singapore’s) use of the unlimited detention as a violation of human rights. One doesn’t hear Washington complaining so much these days. Wonder why. Shortly after the terror attacks, President George W. Bush thanked Mahathir for Malaysia’s efforts against terrorism.

It should be emphasized that Malaysia is not some tin-pot dictatorship like Zimbabwe. It is a functioning democracy, which is, in many ways, a model for a moderate Muslim-majority state. We should be so lucky if Iraq turned out to be half as stable, prosperous and democratic as Malaysia is today. That’s why Malaysia’s experience is pertinent to the U.S. today.

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