This post is going to require a bit of a trip down the old rabbit hole, so bear with me.

Tuesday on The Daily Show with Jon Stewart, former Republican Speaker of the House Newt Gingrich argued against Mirandizing the Christmas Day Underwear Bomber, Umar Farouk Abdulmutallab. Stewart countered:

STEWART: Didn’t they do the same with Richard Reid, who was the shoe bomber?

GINGRICH: Richard Reid was an American citizen.

Well, that certainly wasn’t true — Reid, who was brought to justice under the Bush administration through the civilian court system, is a citizen of England. Gingrich later corrected himself, via Twitter:

@newtgingrich: On daily show was wrong re: ShoeBomber citizenship, was thinking of Padilla. Treating terrorists like criminals wrong no matter who is Pres.

(By the way, Newt — love the “Washington Crossing the Delaware” background.)

This prompted The Atlantic’s politics editor, Marc Ambinder, to respond:

The trouble @newtgingrich, with your Padilla example is that Padilla did not talk while he was in military custody.http://twurl.nl/0ol5bw

Ambinder’s link goes to Greg Sargent’s blog at WhoRunsGov. Sargent points out that Gingrich’s “correction” makes the issue even more confused — particularly since Gingrich followed up his above Tweet with one saying that it is wrong to treat any terrorists as common criminals in any case, regardless of who is president:

Yesterday, he suggested it was okay to Mirandize a terror suspect provided he were an American citizen. Today, he seemed to transfer that opinion onto Padilla in his Tweet — but then in the very next sentence added that treating any and all terrorists like criminals is wrong in all cases, no matter who is president.

Well, the issue was taken up Thursday morning in a White House press briefing with Robert Gibbs, in which Gibbs said:

“Jose Padilla was made an enemy combatant so that we could get him to talk,” Gibbs said. “And guess what happened when we made him an enemy combatant, he didn’t talk. He did talk when he was transferred back into a civilian court.”

The Weekly Standard’s Thomas Joscelyn is at pains to point out the inaccuracy of this statement, and you can read his spirited defense of the arbitrary use of military tribunals here. (I lifted Gibbs’ quote from the morning’s press briefing from his piece.)

As Joscelyn has it, Padilla — an American citizen, mind you; albeit a lousy one — wouldn’t talk until he was transferred to military custody in Guantanamo Bay, Cuba. He concludes:

If anything, Jose Padilla’s case shows why the Obama administration’s approach can be woefully inadequate.

So, the question seems to have shifted from whether we should try foreign nationals identified as possible terrorists in civilian courts, to whether anybody, American or not, should be handed over to the military to be detained indefinitely and possibly tried at some undetermined point in the future by a military tribunal. Do I have this straight?

I argued before that it seems a little weird to have people who profess a fervent belief in limited government and the constitution demanding unchecked power for the executive branch. Joscelyn is arguing that because Padilla talked while in military custody (and while subject to whatever forms of “interrogation” used during that time), that this must be what we do when it comes to individuals accused of “terrorism.” Torture works, therefore it is not wrong. Military tribunals “work,” therefore they can be used whenever we see fit. As Christopher Hitchens puts it in God is Not Great,

The totalitarian principle, which is often represented as “systematic,” is also closely bound up with caprice. The rules might change or be extended at any moment, and the rulers had the advantage of knowing that their subjects could never be sure if they were obeying the latest law or not. (p. 231)

In my post, I wrote that citizenship doesn’t enter into the calculus of rights — and apparently, that’s exactly the case being made (in complete reverse) in The Weekly Standard: If a person is accused of terrorism, he forfeits all rights to due process, regardless of whether he’s a U.S. citizen or not. The apparently conservative Joscelyn is arguing point-blank for totalitarianism — for a system in which the State determines whether or not you have rights at all. 1984 references have become so common as to be annoying, but one can hardly help but be reminded of the Ministry of Love.

UPDATE: Gee, here’s another pretty solid argument.

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