Well, that didn’t take long.

On Wednesday, Federal District Court Judge Laurie Smith-Camp granted a temporary injunction preventing a Nebraska abortion bill from taking effect. In granting the injunction requested by Planned Parenthood, Judge Smith-Camp found that Planned Parenthood would likely be successful in declaring enforcement of the new law prohibited by the Constitution, and therefore granted a temporary injunction blocking Nebraska officials from putting the law into effect.

So, what is the law that got blocked? The fundamental basis of the law is that an abortion provider would be required by law to go through a number of detailed procedures which the state claimed were to ensure that the woman obtaining the abortion was doing so freely and voluntarily, without any threat or duress and with a full understanding of the potential negative impacts of the procedure.

Sounds pretty innocuous, right? The statute is merely requiring informed consent before a medical procedure, just like any other medical procedure, right?

Well, not exactly. LB 594, the bill in question, has twelve paragraphs of requirements and regulations which abortion providers would be mandated to review with women seeking abortions, including determining if the procedure was being done under duress, whether there were risk factors in the procedure, and a “material” discussion of any risk factors that might be present. The physician would also have to certify in writing that the risk of continuing the pregnancy is greater than the risk of the abortion procedure, if there was anything other than a “negligible” risk involved.

Whew. I don’t recall getting a grilling like that when I got my wisdom teeth out, or when my wife had her gall bladder removed. The requirements of LB 594 are informed consent on steroids.

Or, perhaps they’re not really about informed consent at all. Judge Smith-Camp described the requirements as “requiring medical providers to make risk assessments and disclosures that, if the bill is read literally, would be impossible or nearly impossible to perform.” Is it possible that the Legislature, rather than being concerned about informed consent, was trying to just stop abortions altogether through a back-door technique?

Judge Smith-Camp had to be suspicious of that when she observed that “[n]o such legislative concern for the health of women, or of men, has given rise to any remotely similar informed-consent statutes applicable to other medical procedures.” The Legislature didn’t do itself any favors in this regard when they outlined the purposes of LB 594, which included in part stating that the Legislature disagreed with the logic behind Roe v. Wade and would do everything possible to protect the life of an unborn child. Putting those two things together was a big reason why Judge Smith-Camp found that Planned Parenthood would be “likely to succeed” in declaring LB 594 unconstitutional and entering the temporary injunction.

This isn’t new ground for pro-life legislation. Roe has been law in the United States since 1973, and the basic premise for Roe is pretty well accepted by the majority of Americans. For some time, the pro-life strategy has been one of incremental reduction. They have been unsuccessful at the big goal – making abortions illegal – so they have been forced to work around the margins of abortion, trying to at least make some of them harder to get or limiting access to the procedure.

This incremental reduction strategy has achieved a number of successes for the pro-life movement. It appears that LB 594 was another salvo in the incremental reduction arsenal. Unfortunately for the pro-life community, it appears that they over-reached in their attempt and ran afoul of the constitution.

One final observation about LB 594 that I found interesting. One provision of the bill authorized lawsuits against physicians who did not provide women with the byzantine notices required by LB 594. Those lawsuits would expose physicians to significant financial liability – and the law would allow damages against the physicians to be presumed unless the notification requirements (the ones Judge Smith-Camp called “impossible or nearly impossible to perform”) were satisfied.

The lawsuit angle was one of the reasons Judge Smith-Camp granted the temporary injunction, and she used some pretty strong language to demonstrate her concern that LB 594 was a Trojan horse in an attempt to outlaw abortions. Here’s what she wrote about the lawsuit provision:

“LB 594 effectively cloaks such plaintiffs as private attorneys general … with the apparent object of turning them into quasiprosecutors, dedicated to eliminating the activity the Legislature has found to be objectionable.”

Ouch.

Using lawsuits to help enforce conservative-supported legislation isn’t new. Remember Arizona’s new immigration law, requiring police to stop and ask people about their immigration status? There is a provision in that law that allowed private citizens to sue police departments if they don’t think they were being vigorous enough in enforcing the law. Sound at all familiar to the lawsuit language in LB 594?

It appears that conservatives have learned a new trick when passing laws designed to enforce their particular brand of social policy – authorize private lawsuits against individuals who might not be fully and lustily complying with the policy. The intent of the lawsuit provisions can only be to intimidate service providers who have to carry the conservative policies out (police in Arizona, doctors in Nebraska) to err on the side of the conservative social policy or risk a big lawsuit.

But, wait, you say. Isn’t part of the conservative mantra tort reform? Isn’t part of the conservative ethos that slimy trial lawyers are dragging the economy down with frivolous lawsuits, so we need to change the tort system to loser-pays or put a damage cap to make sure that trial lawyers and rogue juries don’t devastate American businesses and ruin the economy?

So, here’s my understanding of the conservative position on the tort system. Using civil courts to compensate people injured by businesses is a terrible idea that needs to be severely limited. Using civil courts as “quasiprosecutors” to enforce conservative social policy is a great idea that needs to be expanded.

Sounds a little like their position on the Department of Education – abolish the Department of Education altogether, except for the part where we prevent schools from teaching sex ed or distributing condoms.

If you want to remain silent, you’d better speak up.

 That’s what the United States Supreme Court has told criminal defendants who want to invoke their Constitutional right to remain silent. In Berghuis v. Thompkins, the Court ruled on June 01 that police can continue to question an arrested suspect as long as the suspect doesn’t explicitly tell the police he doesn’t want to talk.

 The Berghuis ruling limits the rule in Miranda v. Arizona (1966), which requires police to advise criminal suspects of a number of their Constitutional rights, including the right to remain silent. (Bonus Constitutional fact – the right to remain silent comes from the Fifth Amendment’s protection against being compelled to testify against yourself).

 Berghuis doesn’t change the rule that police have to read Miranda rights to a criminal suspect. What it does is allow the police to continue to question a suspect until he “affirmatively invokes” his Constitutional right to remain silent. Before Berghuis, police would have to wait until the suspect waived his right to remain silent before they could interrogate him.

 In Berghuis, the police were investigating a murder. They were questioning a suspect under arrest, Van Chester Thompkins. They had Mirandized Thompkins (although he refused to sign a form acknowledging he understood his rights) and continued to interrogate him. Thompkins never told the police to stop the interrogation, so the police continued. They asked Thompkins if he believed in God, if he prayed to God, and then (start the tape recorder) whether he prayed to God for forgiveness for “shooting that boy down.” Thompkins said yes, and that “yes” can and was used against him in a court of law.

 Thompkins was convicted of murder, and appealed, saying that his “yes” was a violation of his right to remain silent and should not have been used against him. The lower court agreed with Thompkins. The Supreme Court did not.

 Justice Anthony Kennedy, writing for a majority that (unsurprisingly) consisted of Kennedy and the Conservative Four, said that a suspect’s waiver of his Miranda rights can be presumed when the suspect has been advised of his rights and chooses not to exercise them. The Berghuis decision significantly limits language in Miranda that said “a valid waiver will not be presumed simply from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained.”

 Not anymore. In Berghuis, the Court cut that portion of Miranda out, and fundamentally changed how a suspect’s Constitutional rights are understood. Before Berghuis, there was a presumption that a suspect will invoke his Constitutional rights (such as the right to remain silent), and the police would need the suspect to actually waive those rights before proceeding with an interrogation. Now, police can assume that a suspect is waiving his rights during an interrogation unless the suspect specifically says he is invoking those rights.

 In other words, the Supreme Court changed the right to remain silent from an “opt out” to an “opt in.” It shifted the presumption from protecting the accused to assisting the government. It is, as Vice President Joe Biden would say, a big (SNIP) deal.

 In the majority opinion, Kennedy said that Thompkins understood his rights when he chose not to invoke them. But how did Kennedy know that? After all, Thompkins didn’t sign the form saying he understood his right to remain silent. What if he didn’t?

 Kennedy said that nothing has changed about the Miranda rule requiring a suspect to be advised of his rights in such a way that he understands them. But how can an officer tell if a suspect understands his rights if that suspect doesn’t say anything? In addition to allowing the police to assume a suspect is waiving his right to remain silent, Berghuis also allows the police to assume that the suspect understood his right in the first place and question a suspect who may not understand his Constitutionally-guaranteed right to remain silent – which was exactly the concern the Miranda court had when it made the advisement requirement back in 1966.

 Strangely enough, we haven’t heard a peep from conservatives who get very upset about “activist judges” imposing their own policy views on the country. We haven’t seen a mis-spelled sign from the Tea Parties around the country who shout about their fears of the Constitution being destroyed by the socialist-communist-Marxist-Nazi-Klingon-liberal President Barack Hussein Obama. Berghuis seems to be a radical change in the law, and a significant limitation on Constitutional protections. And yet, a very strange silence from both parties.

 Rookie Justice Sonia Sotomayor wrote the dissenting opinion, pointing out how the Berghuis decision “flatly contradicts” previous decisions from the Court, sets up “an unworkable and conflicting set of presumptions,” and “at worst, it overrules sub silentio an essential aspect of the protections Miranda has long provided.”

 I know that’s a lot of quotes, but it’s a pretty impressive dissenting opinion from a first-timer. Although I do think she’s showing off a little with the whole “sub silentio” (meaning, basically, I’m not saying, I’m just saying) reference.

 Given that Miranda has been called into question even by current Attorney General Eric Holder, I suppose civil libertarians should be pleased that the Court didn’t just outright overrule the decision in its’ entirety. But the underlying rationale of Berghuis is definitely concerning. Will the Court make other Constitutional rights “opt in” for suspects? Will the right to a jury trial be presumed waived? How about the right to an attorney?

 In other words, how much more will the scales tip towards the government and away from the accused as the years go on?

But, what’s going to happen to the police dramas on television we all love?

Last week, Attorney General Eric Holder announced his support for a limitation on a suspect’s Miranda rights in a terrorism case. This comes on the heels of Republican criticism of Times Square bombing suspect Faisel Shahzad being read his Miranda rights during questioning.

Just so we’re clear, “Miranda rights” come from a Supreme Court case called Miranda v. Arizona, where the Supreme Court ruled that the Constitution required a criminal defendant be advised of his constitutional right to remain silent and have a lawyer present during questioning by law enforcement. The rationale behind the decision was to ensure that suspects were aware of their constitutional rights and prevent confessions from being made due to force or deception.

It also made dialogue for TV police dramas much easier to write. But I doubt that was the main intent of the decision.

During the Bush administration, the “war on terror” was used to ignore a whole swath of constitutional rights. We were introduced to the concept of unchecked Presidential power, indefinite detentions, warrantless wiretaps, trials without lawyers or juries, confessions obtained from torture, and a whole host of other “techniques” that sound a lot more Soviet Russia than Uncle Sam.

At first blush, the Obama administration seems to be reigning in some of these practices. They do seem to view attacks like Shahzad and the Christmas Day airplane bomb attempt by Umar Farouk Abdulmutallab as crimes and treat them accordingly.

But not completely. The Supreme Court created a public safety exception to Miranda, and the Obama administration has been aggressively using that exception to question suspects like Shahzad and Abdulmutallab before they get a Miranda advisement.

Wait a minute, you say. Cops don’t always have to read a suspect’s Miranda rights immediately upon arrest?

Nope. In New York v. Quarles, the Supreme Court said that a suspect can be questioned without a lawyer and without a Miranda advisement when public safety concerns are “paramount.” The Obama administration has used Quarles as the camel’s nose under the Miranda tent. Now, Holder has announced he wants to expand law enforcement’s ability to suspend the Fourth and Fifth Amendments and question terrorism suspects without lawyers or Miranda advisements.

I’m of two minds about Holder’s proposal. On the positive, it is reassuring to see that there is at least an acknowledgment of the Bill of Rights and the necessity of ensuring that due process is provided even to terrorism suspects. I’ve written for years about how the difference between a free society and a dictatorship is the Bill of Rights and its’ limitations on the government’s ability to use its’ power against the government’s own people. The Obama administration, far more than the Bush administration, appears to understand the need for such limitations to maintain a free society.

And, it could be worse. Senator Joe Lieberman recently put forward a bill that would strip American citizenship for someone that was accused – accused, not convicted – of a crime of terrorism. Lieberman has taken the lead in police-state-like proposals cloaked in a “war on terror” sheath, but his citizenship-stripping idea has taken his contempt for the Bill of Rights to eleven. The fact that this guy was one Supreme Court justice’s vote away from being the vice president in 2000 is, in hindsight, terrifying. Who would have thought that Lieberman could have made Dick Cheney look like a civil-libertarian vice president?

But Obama has shown that he has a little authoritarian in him as well. The “public safety” exception to Miranda could end up being an exception that swallows up the rule if written too broadly. Obama has yet to close Guantanamo Bay and is still allowing a Guantanamo-style prison to be operated in Afghanistan where people are being detained indefinitely. He’s even staked out a position that a President has the authority to order the assassination of specific individuals if he feels it necessary.

He’s not Bush, but there’s a lot of Bush in Obama when it comes to national security and constitutional rights issues.

It’s really ironic. The Tea Party folks make hysterical “unconstitutional!” shrieks about things that are completely constitutional, such as health care reform and Obama’s eligibility to be President. They accuse him of violating the Second Amendment and “wanting to take guns away” when he has done nothing of the sort and has taken an extraordinarily expansive view of the Second Amendment. Yet they are completely silent about breaches of actual Constitutional freedoms, like the Fourth, Fifth, and Sixth Amendments.

Apparently, amendments four through six don’t move the needle in BeckPalinStan.

Just because you’ve identified a problem, doesn’t mean your solution is a good idea. Arizona, in response to an issue of illegal immigration that pretty much everyone agrees has not been properly handled by the federal government, has passed a controversial new law. Whether that law makes things better or worse is up for debate.

First of all, let’s lock down exactly what the new law does. Under the new law, Arizona law enforcement officers are required (that word becomes important later) to check the immigration status of any person they have a “reasonable suspicion” of being in the country unlawfully. The law also gives citizens the right to sue a local government agent or agency if that citizen believes the new law is not being enforced to “less than the full extent.”

OK, buckle up, because there’s a lot of problems in this law to go over.

The first legal problem the bill faces is the Supremacy Clause of the United States Constitution. This is the one that is very rarely discussed amongst right-wing Constitutional lovers, because it holds that federal law is the “supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

You never see that one a sign in a “states’ rights” rally, do you?

Immigration is, by definition, federal law. States like Arizona don’t get to have their own rules about who can come in or out of the country. We tried that once, with the Articles of Confederation back in 1776, and it didn’t work out so well. And the “preemption doctrine” says that when an area of law is so inherently federal (like immigration), the Supremacy Clause prevents states from passing laws in that area.

So does Arizona’s law violate the Supremacy Clause? Maybe. The law isn’t adding new rules, just mandating that state officers attempt to enforce already-existing federal rules. It’s a grey area that will certainly have to be hashed out in federal courts.

Legal problem number two is vagueness. Any law has to clearly define what is or is not prohibited and how it is to be enforced. The “reasonable suspicion” part of the law is going to be troublesome. What exactly is “reasonable suspicion” that a person is in the country illegally? The answer to that question suggests one of the biggest practical problems with the bill, in that it invites racial profiling of Hispanics.

The bill does say that race cannot be the sole grounds for reasonable suspicion – meaning that it can be part of the grounds, just not the whole thing. But even if that’s the case, what non-racial basis can be used to justify a check of a person’s immigration status? So far, that’s a question that no one – including the proponents and authors of the bill – can adequately answer. And that makes it subject to a vagueness attack.

One reason to strike down vague laws is to prevent selective enforcement. The theory goes that if a law is so vague that it’s not clear how it should be enforced, then the authorities are given leeway to abuse that law selectively against a group of people. They could get away with that selective enforcement because the law is so vague that it isn’t clear what that official is and is not supposed to do. That’s exactly what Hispanics in Arizona and those around the country interested in civil rights are afraid of.

Those are the two legal problems with the law, which will almost assuredly be vigorously litigated. I’m all for making sure lawyers get more money, but the legal bill the state of Arizona’s taxpayers will be footing for defending this law should be a whopper.

But there’s some practical reasons why this law is a bad idea as well, most notably for law enforcement officers. I have to think this law makes being a cop in Arizona a heck of a lot more difficult. Keep in mind, there’s a lot of Hispanic people in Arizona. Some of those Hispanic folks are criminals. Some are victims. Most are just Arizonans trying to live their lives in peace.

Now, every time an Arizona law enforcement officer has a “lawful contact” with those persons (or anyone else), that officer is going to have to decide if there is “reasonable suspicion” that they are in the country illegally. Of course, they’ve been given no guidance as to what that reasonable suspicion might be, so they’ll have to make it up as they go. I can’t imagine what could possibly go wrong.

It gets worse. Lots of times, officers will be investigating serious crimes, and needing to gain the trust of the people they are having “lawful contact” with in order to help their investigation. That’s going to be a lot more difficult if the officer is required – required, not encouraged, remember – to check on the immigration status of the people that officer is dealing with in an investigation.

Proponents of the bill will point to an exception that the requirement is only “when practicable.” But what does that mean? And will that mean something different to a judge and jury when the officer is being sued for not enforcing the new law?

Because that’s the part of the bill that isn’t getting nearly enough attention. Any person can bring a lawsuit against any officer or agency if that person thinks the law isn’t being enforced “to less than the full extent permitted by federal law.” A person winning a lawsuit gets their attorney’s fees and costs paid for by the losing party. And there’s plenty of anti-immigration organizations out there looking to get some publicity and a little dough for their lawyers by suing insufficiently-zealous Arizona cops, believe you me. And, again, while I am firmly in the pro-lawyers-making-scads-of-money camp, this provision is ripe with the potential for mischief.

So, imagine you’re that law enforcement officer. You’re investigating a murder, and trying to convince a witness to talk to you about what she saw. She’s reluctant, because she comes from a tough background and has learned not to trust the police. But you need her testimony for your investigation. As you talk to her, you discovery she’s Hispanic, and (for whatever reason) you think she might be here illegally.

Do you, as the law requires, check your witness’ immigration status? Do you check it even if it will derail your murder investigation and let the guilty party go free? Do you not check it and risk being sued by an anti-immigration zealot, putting your job and your family’s livelihood at risk?

What a horrible position to put a law enforcement officer in. I have long thought that police officers have the hardest and most dangerous jobs in the world. Why the state of Arizona wants to make their jobs harder just to make a political point is beyond me.

There’s another angle to this story as well, one of hypocrisy. Where is the Tea Party outrage about this bill? I thought the Tea Party people were all about small government and reducing the intrusion of “Big Brother” government into our lives. I thought they loved the Constitution and just were about people being left alone.

The sole purpose of this bill is to give law enforcement – that’s the government, Tea Party folks – more authority to detain and arrest people. I’ve seen lots of your signs (some of them comically misspelled, of course) telling everyone how the Constitution prohibits health care reform and how the Constitution says President Obama isn’t actually President because he was born in Kenya, or Indonesia, or Mars, or something like that.

Hey, folks, this is an actual intrusive-government problem here! Arizona just passed a law that mandates the police to stop people on the vaguest of reasons. That’s a huge government intrusion, right? You’re all about small government, right? You should be up in arms about this, right? You’d be very concerned about this even though it is likely not to affect your overwhelmingly-white membership because you believe in freedom for everybody and aren’t even the slightest teeny tiny bit racist, right?

Right?

The Republican party’s hypocrisy is worse. In Arizona, they’re the driving force behind the new law. Remember, this is the same Republican party who thinks the economic downturn can be fixed by putting limits on patients suing doctors who butcher them. Now they’ve passed a law giving the green light for anyone to sue a police officer or police department if that person thinks Arizona’s immigration enforcement isn’t tough enough.

So, to summarize the Republican position on lawsuits: Suing doctors, bad. Suing cops, good.

And the hits keep on coming. The Republican National Committee has just set up a new fund-raising website claiming Obama is “versus” the Constitution. Plenty of Republican attorneys general are spending taxpayer money to get the newly-passed health care reform bill declared unconstitutional.

Really? Were you guys around when the PATRIOT Act was passed? When President Bush’s warrantless wiretapping program was revealed? When Vice-President Cheney tried to argue that the vice president’s office wasn’t legislative or executive and therefore not subject to oversight? When Guantanamo Bay was created as a place to hold prisoners indefinitely at the whim of the president?

You know, things that were actually violations of the Constitution.

I’ve got plenty of problems with the Obama administration, many of them revolving around his failure to stop the Constitutional violations of his predecessor. But here’s the thing. Just because you don’t like a particular policy decision Obama or anyone else makes doesn’t mean it’s unconstitutional.

People are entitled to whatever opinion they like, I guess. But they aren’t entitled to wrap themselves in the Constitution and pretend it says whatever they want it to say. And if you’ve held your tongue after eight years of a presidential administration who exhibited naked contempt for the Constitution, you really don’t get to tell me about how much you love the Constitution.

Sometimes, it’s what isn’t said that’s more important than what’s said.

Nebraska has recently passed the “Pain Capable Unborn Child Act,” which outlaws abortions in the second half of the second trimester of a pregnancy (after 20 weeks) because, according to the Unicameral, that is the point at which the fetus can feel pain.

Sounds relatively straightforward, right? Another attempt to ban later-term abortions from a conservative state in the ongoing pro-choice vs. pro-life battle, right? Nothing to see here, move along.

As college football analyst Lee Corso would say, not so fast, my friend. Nebraska’s new law is more than just your run-of-the-mill pro-life trial balloon tossed into the courts. This law is intended to challenge the fundamental basis of abortion laws in the United States.

Let’s take it from the top, though. In 1973, the Supreme Court decided in Roe v. Wade that abortion was a constitutionally-protected right that must be balanced against the state’s interest in the life of the unborn child. Roe defined viability as the threshold when the state’s interest outweighed the mother’s interest – in other words, once the fetus could survive outside the womb (was “viable”) then the state’s interest outweighed the mother’s interest and the state could restrict abortion access. In addition to keeping agitators on both side of the issue employed and well-funded for the last 37 years, that basic rule has been what has guided the courts in deciding the contours and boundaries of abortion law.

So what’s the big deal, you ask? It’s all about the premise. Nebraska’s law (like other “fetal pain” bills in states like Oklahoma and Texas) abandons the viability premise. Under Nebraska law, an abortion is illegal because the fetus can feel pain, regardless of whether it is viable or not.

That is nothing less than a frontal assault on the legal architecture of abortion law since Roe was decided in 1973. There’s no way that Nebraska’s new law could survive a legal challenge under current law. It could only survive if the Supreme Court uses a law like Nebraska’s to re-interpret the Constitution and change abortion law. Which is, of course, exactly what the pro-life community wants to see.

Now, this won’t happen overnight. There will be legal challenges to the constitutionality of Nebraska’s law filed, and they will take years to filter their way to the Supreme Court. Between taking the abortion bill to court and suing the Federal government over the health care reform bill passed earlier this year, the budget for Nebraska’s Attorney General office should be plenty stretched. Good thing the state is so flush with tax revenue.

(As an aside, I was discussing Nebraska’s new law with a very wise colleague of mine. She pointed out that the Tea Party faithful were quite upset about health care reform “stealing their freedom” by proposing a tax penalty for not buying insurance. They didn’t, however, seem nearly as upset about a bill that removed the actual freedom to receive an actual health care procedure. Good thing the Tea Party is a broad base of libertarian-minded independents and not just a collection of hard-core and somewhat cranky conservatives, right?)

So what’s going to happen once this gets to the Supreme Court? Tough to say, as we’re about to be treated to another episode of everyone’s favorite reality show, “Supreme Court Justice Confirmation.” But keep in mind, the Conservative Four (Scalia, Thomas, Roberts, and Alito) will be there regardless of who the rookie justice will be. And the Conservative Four have shown no hesitance to make dramatic changes in settled law – just go read about Citizens United and see how they turned decades of campaign finance reform on its’ collective head.

But, you might ask, shouldn’t the idea of judges making dramatic changes to settled law run counter to conservative ideals? Isn’t that – gasp – judicial activism that is so anathema to conservatives everywhere? Shouldn’t conservatives who believe in their principles just go to the ballot box and try to change law through the legislature instead of using the court to end run the will of the people, like they’ve loudly and consistently accused progressives of doing?

They should. I hope they do. I’m not holding my breath.

There’s tone-deaf, and then there’s the Oklahoma state legislature.

As we approach the 15^th anniversary of the bombing of the Murrah Federal Building in Oklahoma City – perpetrated by anti-government domestic terrorist Timothy McVeigh in which 168 people died – members of the Oklahoma legislature are discussing the formation of a “volunteer militia” to “defend” the state against what they view as “unwarranted” intrusions from the federal government.

Remember, McVeigh believed that the federal government was an enemy force responsible for killing Americans in Waco and Ruby Ridge. He believed that deadly force – including the bombing of a federal building – was necessary to resist the federal government’s “unwarranted” intrusions. So, really, what better way to commemorate McVeigh’s victims than to organize a group McVeigh would stand in line to join?

Think about it for just a moment. State senators think it would be a good idea to create a volunteer militia – a group of armed citizens who enforce the rules as they think they should be enforced. And, at least one thinks that it would be legal.

“The Second Amendment deals directly with the right of an individual to keep and bear arms to protect themselves from an overreaching federal government,” said Randy Brogden, a Republican state senator and (naturally) candidate for governor.

Um, actually, not so much. There are arguments to be made as to whether the Second Amendment’s intent was to protect the right to bear arms for hunting and recreation, or to repel foreign invasion. There is no argument, historically, that the purpose of the amendment was to keep the federal government in check.

Besides, Oklahoma (along with 49 other states) already has a state militia. It’s called the National Guard. At the time the Second Amendment was written, there was no such organization. Heck, there wasn’t even supposed to be a standing army. Times and laws have changed to make such a “minuteman” style of army both unnecessary and unwise.

Now, in fairness, recently the Supreme Court has ruled that the Second Amendment guarantees an individual right to bear arms, which as taken any meaning out of the whole “well-regulated Militia” part of the Second Amendment. But this isn’t an issue about whether individuals can possess firearms.

If the argument for an armed force protecting a state from an “overreaching federal government” sounds familiar, it should. In 1957, the governor of the state of Arkansas ordered the National Guard (the state militia, remember) to prevent black students from attending a previously-all-white high school. Arkansas’ governor at the time, Orval Faubus, believed the Supreme Court’s decision requiring schools to be desegregated was an “overreaching federal government” intruding upon the rights of the state of Arkansas. In 1962, then-governor George Wallace attempted to use the Alabama National Guard to prevent the integration of the University of Alabama. Wallace believed that the federal court’s decision that the state could not prevent blacks from attending the school was the act of an “overreaching federal government” intruding upon the rights of the state of Alabama.

And now, because in 2014 people will face a tax penalty if they don’t purchase health insurance, Oklahoma state legislators want to mobilize private armies with the blessing of the Oklahoma legislature. I thought private armies were what Somali warlords used to help maintain control of their territories, not what Americans used in political disagreements.

But let’s think this through. We’re talking about volunteer armies that would be somehow deputized by the state legislature based on a particular political belief. Would everyone get to do that?

On “The Daily Show,” comedian Wyatt Cenac played a supporter of health care reform and was asked his response to the violent and separatist language used by health care opponents. He said “bring it on, I mean, we’ve got guns too.”

Apparently no one told the Oklahoma legislature that he was kidding.

Earlier this week, several members of the Hutaree militia in Michigan were arrested for conspiring to kill police officers. According to prosecutors, the group planned to make a fake 911 call to lure police officers into an ambush and then use bombs to attack the funerals of the officers slain in the original ambush.

What’s even more chilling is the reasons attributed for these attacks. According to federal authorities, the militia hoped their attacks would spark others to rise up and violently oppose the government. The Hutaree militia (whose name is supposed to mean “Christian warrior”) believed that they were preparing for the Biblical end-times and the rise of the Antichrist in the form of the United States government. Therefore, they believed they were compelled by God to use violence against agents of the Antichrist and that any innocent persons harmed along the way were unfortunate collateral damage to their holy mission.

Sound at all familiar? Who needs a trip to Baghdad or Kabul when you can just head to rural Michigan?

Unfortunately, that’s not the only reason why the Hutaree story sounds familiar. It wasn’t that long ago that an anti-government believer flew a plane into a building in Texas. And it wasn’t that long before the plane attack that an anti-abortionist walked into a church and assassinated a doctor. And it wasn’t that long before the assassination that soldiers were shot by a man violently opposed to the war in Iraq. And it wasn’t that long before the shooting of the soldiers …

OK, you get my point. There’s plenty of reason for concern about the rising tide of politically-motivated violence in this country. This is particularly true if you remember back to the mid-1990s, when the militia movements first gained notoriety. A lot of what you heard back then – the government is evil, your freedoms are being taken away, the President is a traitor, good citizens should arm themselves and resist – is being echoed in the Tea Party rallies of today. Whether the current anti-government rhetoric will culminate as the rhetoric in the 1990s did – with the bombing of the Murrah Federal Building in Oklahoma City and the death of 168 people – remains to be seen.

But there’s a broader legal issue that has received little attention. After the September 11 attack on this country, we were told by then-President George Bush that the fight against terrorism was a new kind of war, requiring new kinds of tactics. Those tactics, as it turned out, involved indefinite detention of terrorism suspects, the use of torture, the elimination of habeas corpus, and ultimately the granting of the President with dictatorial powers in the name of “keeping us safe.”

That was a pretty easy sell to a scared nation being told about mushroom clouds hanging over its’ cities. And let’s be honest, it was also made easier when those on the wrong end of all that unchecked Presidential power were named Mohammed or Ali instead of David or Joe.

So, why haven’t we called the Hutaree militia a terrorist cell? The plan certainly fits every description of a terrorist plot I can think of. But there’s no mention of terrorism in the indictment filed against the militia members. There’s been no mention of terrorism in the President’s statements about the attack. Ironically enough, the Obama administration offered support to the people of Moscow who were victims of domestic terrorism in the subway bombings, but no references to the domestic terrorist plot broken up by law enforcement.

Why is this important? Because it exposes the lie told to us for years that constitutional rights have to be surrendered to fight terrorism. The Hutaree militia plot was foiled not by the PATRIOT act, but by good law enforcement. They’re being held in jail, not in a super-secret military prison outside of the country, and they haven’t broken out and wreaked havoc on the American countryside like we’ve been told Guantanamo detainees would if we put them in a SuperMax prison.

Apparently, that means the Republicans believe that foreign-born terrorists are way more dangerous than domestic terrorists. Isn’t that a touch unpatriotic?

I’ve said this before, and I will say it again. “Declaring war” against an abstract concept like terrorism, or crime, or littering, is fine as a metaphor but terrible as a legal rationale. If we’re serious about declaring actual war against terrorists, then we’d be renditioning the Hutaree militia members to Guantanamo and torturing them.

We’re not. Our refusal to accept actions like the Hutaree plot as terrorism is further evidence that, at some level, we understand that treating the “war on terror” as an actual war and suspending our constitutional freedoms for the duration puts us into the perpetual war that George Orwell warned us about in “1984.”

Senators John McCain and Joe Lieberman have introduced the Enemy Belligerent Interrogation, Detention, and Prosecution Act of 2010 before the United States Senate. The proposal is shocking in it’s sweep. If passed into law, the bill would literally give the President the authority to detain anyone he wishes, American citizen or not, for as long as he wants.

I’m not kidding. I’m not exaggerating. This isn’t the opening chapter of “It Can’t Happen Here” or any other dystopic fictional work. Here’s how it would work.

According to the bill, if someone who was taken into military custody and suspected of being an “unprivileged enemy belligerent,” the bill would give the President authority to detain that person in military custody without trial or criminal charges “for the duration of hostilities against the United States.”

And you thought the Bush-era euphemisms like “enhanced interrogation” for “torture” were gone. Silly you.

But what do all those euphemisms mean? Well, an “unprivileged enemy belligerent” is someone who the President determines to be a member of a group hostile to the United States. If that sounds similar to the Bush-era “enemy combatant” designation, that’s because it means the exact same thing.

How about the “duration of hostilities” thing? That means when the President declares the “war on terror” to be over. And if you think the answer to that question is “never,” just like a war on crime or poverty or bad taste in music, you’re exactly right. It’s the primary problem for treating a metaphorical war on a concept the same as a real, legal war on something tangible like a country. By telling a populace they are in a war, even a perpetual war, a government gets to enhance its’ power and repress its’ citizenry for the duration of the perpetual war. George Orwell told us that in “1984.”

Did you notice a common theme running through the description of the bill? It’s the President that gets to make all of these decisions. The bill is actually just putting into law the “Unitary Executive” theory made popular by the neoconservative movement that brought us the Iraq War and Guantanamo Bay. That theory states that the President has unfettered authority during times of war as commander in chief of the military. A perpetual war, of course, means a perpetual granting to the President of unfettered authority. And that is pretty hard to distinguish from a military dictatorship.

Surely, though, such a law would be unconstitutional, right? Well, on its’ face you would think so. But the Bush administration did a pretty good job of taking this country down a constitutional rabbit hole with its’ fearmongering of 9/11, getting at least six unconstitutional ideas into the mainstream of American thought before breakfast. And with the Conservative Four on the Supreme Court, there’s no reason to be optimistic about this bill being struck down if it became law.

For example, remember Jose Padilla? He was the guy accused of trying to set off a “dirty bomb” in 2002, and held indefinitely as an “enemy combatant” by President Bush. Eventually even the Bush administration was forced to try him in Federal court, where he was sentenced in 2007 (by the way, not for anything involving a “dirty bomb”) to 17 years in prison. He remains there to this day, which is amazing to know considering how we’ve heard from the Republicans how terrorists are all supervillains whose mighty powers couldn’t possibly be held by a SuperMax prison.

I guess I understand why McCain would sponsor such legislation. He’s in a huge primary fight against a conservative talk show host, and thinks he needs to look tough to get the hard-right conservative votes. Lieberman is more of a mystery to me, and I cannot fathom how a Jewish man who knows his history could ever give the kind of authority to anyone that his bill would grant the President.

What surprises me a little is why the Tea Party kooks haven’t picked up on this. Remember, these are the folks who think that President Obama is a socialist. And a communist. And a Marxist. And a dictator. And a Klingon, I think. Regardless, they think he’s a Bad Dude who is trying to “steal our freedoms” and “take our country away” and stuff like that.

Well, guess what? If this bill passes, Obama would have the legal authority to do just that. He could declare all the Tea Partiers as “unprivileged enemy belligerents” and have them arrested and held in military detention for as long as he wants. It wouldn’t matter that the Tea Partiers have no connection whatsoever to international terrorism. The President and the President alone could make that decision, with no access to the courts or any other independent tribunal for review. After all, Padilla didn’t have anything to do with what he was accused of, but he would have been held indefinitely anyway.

Perhaps if the Tea Partiers spent less time worrying about death panels and more time worrying about military tribunals, they’d be a more productive force in society. But I’m not holding my breath.

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