[These are my views, and mine alone!]

“We are a nation at war” — a truth ratified by legal fiat now in US Code. But what is this war? So many attest that this is no longer war as we were taught to recognize, like fighting Nazis — state-against-state, force-on-force — but rather a war against non-state actors, armed groups, or, colloquially, “bad guys.” Can a nation be at war against a bunch of bad guys?

Yet so many in Government solemnly declare this to be our 21st century war, where, unlike wars past, intelligence operations adopting law enforcement tactics will be most effective. We are past Patton and his tanks, and we even leave straight-leg infantry behind. We have, so they tell us, entered a realm best addressed by the sweet cookie dough mix of CIA+SWAT.

Of course, US law enforcement agencies have always done their own intelligence, and US intelligence agencies have acted abroad (at least until recently) in law enforcement mode.

But the traditional core activity-space for either intelligence or US law enforcement institutions has not been, to put it mildly, not about killing foreign persons abroad — at will. In fact the whole idea of US intelligence and law enforcement agencies acting freely in foreign paramilitary mode has until recently been …

Unconstitutional. Not that weird things did not happen; but when they did, they were wrong.

Yet in the past 10 years, paradoxically, they have somehow become right. To be blunt: This is happening because US institutions defined primarily as law enforcement, intelligence, and military have begun a real merger. This represents a merging of activities (operations) as well as an institutional kludging: where law enforcement becomes a universal militarized paradigm — domestically in the form of a more military-like police — and globally in the form of more police-like military — where both use intelligence proactively to identify and root out threats to the United States. And where an intelligence agency has become America’s foremost military institution.

This is in fact now the way forward in Washington circles, no matter partisan source or spin. It is bipartisan. It is fact. It is the whole coming “21st century.”

What is breathtaking today is the merging of three historically very different kinds of national institutions — and methods — each grounded in very different, and always-until-now circumscribed legal orbits. Yet why is this change breathtaking?

The security institutions of the American nation-state have had clearly defined constitutional roles for a reason. We do not want soldiers arresting American citizens, we do not want intelligence agencies casually assassinating both Americans and non-Americans on executive order, certainly without Congressional oversight, and we do not want police agencies engaged in extended combat operations, either against American citizens at home, or against any others abroad.

Yet this is exactly what is happening now. It is in fact an unfolding process not only well underway, but also now nearly irretrievable.

Moreover, this process is a historically unprecedented development in American life. The abridgements of the Civil War or perhaps the “Red Scare” were brief outliers “bad things” compared to the steady march today of a transformation of US national security institutions and their evermore titular ownership — which has been consummated now in the rush of a single decade.

This development can and never will be recalled because the legal foundation for this shift is invested in a longstanding divestment of Constitutional authority from the Congressional to the Executive branch of government.

Congress long ago abdicated its authority to declare war, but after 9-11 the Legislative branch has also thrown over its oversight of those key constitutional distinctions that have long kept separate national security and domestic law enforcement. Intelligence functions are now simply folded into the new cookie mix.

Hence, because of the excuse of perpetual war against “terrorism” or “Islamic extremism,” the executive branch of government now has the right to define any person as a “terrorist” or “supporter” — anywhere on earth, without distinction of international or domestic sovereignty, and even US law.

All terrorism may be local, but the US has made the local, global. In our majesty we have erased the historical divide between domestic and foreign jurisdiction. Check out S.1867: National Defense Authorization Act for Fiscal Year 2012:

http://pastebin.com/zfKTcN5F

There are potential long-term strategic consequences to such a legal construction that enshrines

· A conflation of law enforcement and war

· A conflation of global vs. local

· A conflation of military and law enforcement in US life

There are two obvious strategic consequences:

1. As we are doing now, the US strikes with impunity, and preemptively against terrorists, without necessarily getting permission from the nation-states whose sovereignty they abridge. The whole world is the new compass of American law enforcement (whatever the mil/intel/police instrument of delivery). Other nations at some point may take exception to American drones visiting death on their soil without prior sanction. May I put it this way: They will take exception, and ultimately, our relationship with the world will be put at risk.

2. The US now legally equates threats to the homeland outside the US as no different from internal threats. Under S.1867, traditional distinctions between US citizens and aliens are erased before the authority of the American executive branch and its enforcement agencies. How does this unstated but implicitly existential act alter the very nature of the relationship between citizen and state?

You tell me.

Many assert that “the government has taken the necessary precautions to curb intelligence and law enforcement abuses … Therefore, these concerns [threatening American civil liberties] while perhaps valid for personal political beliefs, are exaggerated when examining the argument with the evidence.”

Yet the Government’s own evidence — in front of our very eyes — tells a different story, which simple — if oft repeated — official assertion cannot dismiss.

In historical times of national emergency — like the Civil War — both civil liberties and the institutional lines demarcating intelligence, law enforcement, and military functions have been blurred. A crisis of national identity — like a terrible civil war — can do that.

Yet are such deep abridgements justified in our own times? Do we in fact face such a desperate time of national emergency? Do threats to the nation necessitate a wholesale erasure of Constitutional dividing lines and the wholesale elevation of Executive power at the expense of hallowed American liberties? Do we as a nation today really and truly inhabit a state of continuing war, in which threats to our national existence demand a post-constitutional über-authority?

Clearly the Executive Branch of Government and its submissive helpmate, today’s spineless Legislative Branch, believe this to be true reality. So many still endorse this primitive assessment: That of the open-ended specter of “Islamic Extremism.” Yet also in national security circles, there is the casual and general notion that “warfare in the 21st century” will be something called “4th Generation Warfare” — which, to be plain, presents a cartoon-world where the US is endlessly at war with hostile non-state actors whose dearest wish in life is the death of Americans.

Yet what do such casual assumptions tell us of our own Government’s dearest wish, which is to control all threats, anywhere and everywhere? Does such a breathtaking global desire itself not represent in itself the creator of threat? Have we not seen over past decades that calling out enemies is the same as making enemies?

But more existentially for American people — once known as “citizens” — what if this wish to control all also inevitably comes home, where it (also inevitably) entails the death of Liberty, the death of the American Idea, the death of our own precious national identity?

Perhaps, in soundless words, S.1867 is, if not our death knell, then its most eloquent prefiguration.

Jiust a short note, Having had some occasion to contemplate detention of terrorist suspects, it strikes me as odd that the general public accepts the notion that those who are detained are necessarily guilty. Now, some certainly are and some who are extremely dangerous cannot be tried in any court because the evidence against them is contaminated by their having been treated as merely subjects for interrogation. Those are doomed no matter what their actions may or may not have been. Other prisoners in the GWOT are detained because some junior NCO or officer decided to "play it safe" and send them to GITMO or wherever. To do that carries no risk for the remanding officer and, in fact, contributes to good statistics which are often rewarded. In other words, not all detainees are guilty. Now, the senate has opened the door for wider detentions without due process including in CONUS, What a good idea!

As we enter the second decade of the 21st century, the notion of nation-state borders and laws are being challenged from all corners and greatly eroding. The United States, which gained its power in the late 20th century, is having trouble coming to grips with these new facts of life. Welcome to the Brave New World of "same world."

Same world exists to a large extent in the ever expanding cyber world. This is a world where non-nation states like AQ or "flash mobs" like the cyber raiders Anonymous, can ply their trades with ease. They can reach out to anyone with a computer. They can recruit and wreak havoc in ways that leave little space or time for a slow moving nation state to deal.

Same World also exists in real space. Our borders are porous no matter how many Customs, Border and TSA agents are assigned. We have enemies that try to strike our interests from overseas. We have the same enemies trying to strike our interests at home. And they show little mercy in their methods or their goals. They wish to kill us and drive us out of the Middle East.

We can debate the merits of 20th century laws that distinguish between US soil and overseas. In some ways, it is almost quaint. But quaint will not deter our enemies. They are enemy combatants whether in the borders known as America, outside those borders or living in the 21st century reality of Same Space. We need all means to deal with them. Limiting our options is not wise.

Shortly after taking office, President Obama pursued fulfilling his campaign promise to close the terrorist prison at Guantanamo Bay, despite dangerous national security implications. While the President has backed off this risky campaign pledge, his Administration has taken off the table detaining future captured terrorists at GITMO, despite having no backup plan.

As the former Vice Chairman of the Senate Intelligence Committee, I repeatedly sought to work with the Administration on crafting a detention and interrogation system for handling the questioning of captured terrorist suspects, but the Administration refused.

Intelligence is our first line of defense against terrorist attacks on our troops overseas, our allies, and our families here home. And, unfortunately, the lack of a coherent detainee and interrogation policy under this Administration threatens our ability to gain this life-saving intelligence.

Senators' McCain and Levin's efforts to craft and pass bipartisan legislation outlining a detention and interrogation policy for terrorists is an important step forward. However, while I applaud their commitment to dealing with this critical national security challenge, it is essential that any new framework clearly answer how terrorists captured both overseas, and inside the United States, like the Christmas Day bomber, can be questioned and detained. Most importantly, Congress and the President must ensure that this, and future Administrations, have the flexibility and authority to detain captured terrorists, legally question them to gain intelligence, and, if necessary, prosecute them without compromising our intelligence sources and methods.

America’s reign as the world’s bastion of political liberties is over. We no longer conduct ourselves as a people and a polity dedicated to the legally protected rights ensconced in our Constitution. The rest of the world has seen this occurring over the past decade with particular reference to how the United States government treats others. We ourselves have permitted the abuse of freedom at home as it has spread and intensified since. It grows rather than abates the further removed in time we are from that stunning event. Surely, then, the sources of this regression lie deeper than the trauma itself. Passive acquiescence in this degradation of the liberties that have been the foundation of our civic religion tells us as much.

Case in point is the call for a pragmatic consideration of the Congressionally approved detainee provisions within the defense authorization bill, passed by the Senate last week, that would require mandatory military detention for some terrorism suspects. The one reason cited for a possible questioning of these draconian provisions is that they may reduce the authorities’ flexibility in handling the suspected terrorist threats. Seven hundred years of habeas corpus protection against tyranny are recast as a technical cost-benefit calculation in the appraisal of criminal procedure. The dignity and legal integrity of citizens is casually subordinated to nebulous fears about lurking dangers unidentifiable and unsubstantial. A judicial system whose openness, insularity from political manipulation and respect in all respects for the principle of fairness made it the envy of the world is fatally compromised. Military justice for American civilians not only tolerated but required. This is what large majorities in both houses of Congress have ordained with significant support from Democrats as well as lock step backing from Republicans. We are promised a veto by President Obama. We shall see whether that constitutional lawyer indeed recognizes in this legislation a point of no return in the attack on the constitution and the persons he took an oath to defend or whether he will manage to finesse the issue in keeping with his woeful record of actively trespassing on our individual rights above and beyond the inheritance from his predecessor.

It should come as no surprise that we have reached this juncture or that it produces just a barely noticed ripple in the troubled waters of the nation’s public life. That conforms to our obedient deference in the face of the mounting toll of freedoms lost since our political class has flung itself mind and soul into the atavistic battle against demons we call the “war on terror.” Today the President of the United States has arrogated to himself and his associates the prerogative to kill any citizen residing outside the country’s territory if (s)he is judged by anonymous criteria to constitute a threat to America or other Americans. Today, the administration asserts that it can short circuit arbitrarily any legal proceeding (where it is either plaintiff or defendant, on the unchallengeable ground that the pursuit of justice will harm national security – as the Executive defines it. -Today, the federal government claims the right to engage in unrestricted electronic surveillance of citizens based on a simple declaration that it sees reason to do so. Today, our communications and movements are deemed legitimate targets of federal and local agents monitoring or investigating without presumption of a crime being committed or planned. Today, the federal government can pressure private companies to withhold basic services from persons or organizations it arbitrary declares ‘threats’ to the national interest. Wikileaks has been denied access to credit card networks and other electronic means of transmitting funds in exactly this way. Today, members of entire communities are being tracked 24/7/365 so as to devise a complete map of their social actions and interactions over time – to have on record just in case. No one in authority specifies what that “just in case’ refers to – whether to the courts, the community or the individual. In the event that the military detention bill becomes law, American citizens will have few if any protections against abuses similar to those that have occurred at Guantanamo; indeed, that already has been the fate of some American citizens of the “wrong” ethnicity apprehended in the months after 9/11. In short, the citizens of this great Republic are being reduced to subjects of the state.

How this has happened requires a long and intricate disquisition. In this short space, here are a few points to ponder. One, American political life and public discourse has lost its honesty and, thereby, its integrity. Ultimately, a healthy democracy is sustained by ingrained norms of behavior. Their inevitable violation by some, some of the time, does not vitiate their general observance as the crucial software of a decent, law abiding polity. Their pervasive neglect, though, is toxic. Two, too many Americans have abdicated their responsibilities as citizens. They wear their ignorance as a badge of honor while lavishing time and attention on those – in politics and in our celebrity culture generally – who exploit that ignorance. Our mainstream media especially are villains in this process. The massive flight from responsibility means that our rulers and opinion leaders are left unaccountable – and they are well aware of it. Three, we have become a fearful people. We allow the free floating insecurities of post-modern life to be focused on bogeymen and phantoms. That psychology fosters the emotions and attitudes that lead Americans who love freedom in the abstract to trade their concrete freedoms for palliatives that in the end neither solve problems nor settle nerves. We are politically immature – and are suffering the consequences.

The issue is stark, the implications profound. To treat it like yet another contorted Washington parlor game or contrived theoretical puzzle would be a disservice. Too many on the scene these days know all the tricks but miss the point.