Before the delegates finally agreed to the new Constitution, Madison and the other Founders eventually pledged to incorporate a Bill of Rights as the first Ten Amendments to the Constitution — a pledge they honored by riding through the towns and villages of the young country, making the case for the Bill of Rights which was approved by Congress and ratified in 1791.

But to fully appreciate the gift Mason, Madison and the other Founders passed on to us, we need to briefly look back to 1776 and recall that other great document that gave definition to what was to become the greatest nation the world has ever seen, the Declaration of Independence. In it is the following:

On New Year’s Eve past, our President and Congress desecrated the Constitution they have sworn to defend when President Obama signed the National Defense Authorization Act of 2012 (NDAA); an Act which includes language that violates not only the Bill of Rights but other constitutionally protected liberties as well that were sealed in blood and passed down to us by those 18th century patriots.

The NDAA gives the President the authority to use the Armed Forces to detain any person “who was part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners.” Under the law, the President also may lock up anyone who commits a “belligerent act” against the U.S. or its coalition allies “without trial, until the end of the hostilities.” The law embraces the notion that the U.S. military can be used even domestically to arrest an American citizen or anyone else who falls under such suspicion and detain them indefinitely without trial, an action that has been illegal since the Posse Comitatus Act of 1878.

Yes, the Obama administration got some wording put in to say that “nothing in this section is intended to limit or expand the authority of the President or the scope of the [2001] Authorization for Use of Military Force,” nor shall the NDAA “be construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.” And there were some waivers stuck in to give the President discretion over whether to send someone into the gulag of the Military Commissions system, possibly for the rest of a detainee’s life given the indefinite nature of what was formerly called the “war on terror.”

After signing the NDAA, President Obama engaged in some serious handwringing, expressed some “serious reservations” about some of the law’s provisions, and declared, “I want to clarify that my Administration will not authorize the indefinite military detention without trial of American citizens.” He added that he would interpret the law “in a manner that ensures that any detention it authorizes complies with the Constitution, the laws of war, and all other applicable law.”

We may argue over whether the NDAA is the deepest wound ever inflicted on the Constitution or just another debilitating cut, noting that the United States has lost its way before beginning with the Alien and Sedition Acts, signed by our second President, John Adams. But to me, the NDAA represents the most serious affront to the rights of American citizens in my lifetime.

Behind closed doors, the law’s chief co-conspirators – Sens. Carl Levin, DMichigan; John McCain, R-Arizona; Lindsey Graham, R-South Carolina; and Joe Lieberman, I-Connecticut – injected into the NDAA ambiguous language that could be applied by the current President or the next or the next or the next… to Americans who resist endless war against “associated forces” somehow linked to al-Qaeda or the Taliban. All four of these co-conspirators are prominent supporters of harsher and harsher sanctions against Iran, actions that have put in place the dry kindling that awaits some spark to touch off a new conflagration in the Middle East. Now that neocon operatives have “associated” al-Qaeda with Iran does that mean protesting a new war with Iran constitutes the kind of “support” that could prompt a long vacation at Guantanamo Bay?

The success enjoyed thus far by those determined to use artificially whipped up fear of “terrorism” in the same way Joe McCarthy used the dread of “communism” to deprive Americans of their constitutional rights is one of the most painful moments of my life. It is time we remember our Founders who had the courage to declare how importantly urgent was the enterprise upon which they, and the foot soldiers of George Washington’s army, were embarked. In 1776, at a time when it seemed far more likely than not that they would hang at the end a rope, they formally declared their support for a common effort to defeat tyranny: “We mutually pledge to each other our Lives, our Fortunes and our sacred Honor.”

- Oliver Wendell Holmes

The Iraq war isn’t over.

For tens of thousands of soldiers returning from the battlefield, it never will be.

Too many of these American heroes will turn to alcohol or drugs in an effort to assuage their mental injuries.

Too many will end up homeless.

Too many will be unemployed.

Too many will end up divorced.

Too many will commit suicide.

Most will be forgotten by their country.

This will be the legacy of nearly nine years of an ill-advised and unnecessary war.

And the worst will be that we still have learned nothing about the horrific cost of war in terms of both dollars and human sacrifice.

If you have one wish, one hope, or one prayer for Christmas, please direct it for these lost veterans who now have to try to put together their shattered lives.

- Socrates

This week’s unfolding events, precipitated by the child sex abuse scandal at Penn State, have left me with an empty feeling in the pit of my stomach.  During the quarter century I have lived in Pennsylvania, I have developed a deep admiration for Joe Paterno—not for his coaching prowess, but for what he has given back to the university.  “JoePa” not only gave back several million dollars in contributions to the university, he also gave those who attended the school an image of character they could strive to emulate.

Paterno’s sometimes irascible nature was often a thorn in the side of those who wanted more wins and additional national championships; but, in his near half-century in the coach’s hot seat, he produced an enviable record that counts far more than wins, losses and championships.  The graduation rates for Penn State football players who played for Paterno is far above the averages for most other football programs.  When the NCAA released its graduation rates report in 2009 for athletes who entered college during the 2002-03 school year, Penn State led all Top 25 teams with an astonishing 89% graduation rate.  Because of the way Paterno ran his program, hundreds, perhaps thousands, of young men earned college degrees they might not otherwise have even sought.

But this week we discovered that “JoePa,” like most of us, is mortal and, as such, doesn’t always clear the moral high bar we like to set for our heroes.  At the time of this writing, there is no indication that Paterno committed any legal breech; but he failed his moral duty by not following through to ensure allegations of sexual abuse by a member of his staff were pursued to their necessary conclusion.  Because of this failure, Paterno has been removed as the football coach for Penn State.  To see that this move is appropriate, one only need reflect on the young boys that might have been spared the pain, humiliation and degradation that comes from being the victim of sexual abuse had Paterno been more diligent—the number of occurrences is not important for even one would be one too many.  From what I know of Paterno, I suspect he knows in his heart of hearts that his removal was necessary and that he will regret his failure of action until his dying day.  The cross he will force himself to carry will be far heavier for the decent person he is.

This incident should cause all of us to reflect on both how we measure morality and how all too often we conveniently allow it to be called into question in a manner that suits us at the moment instead of applying it with even-handed consistency.  Jumping on the bandwagon of those who would pillory Paterno, Jennifer Rubin of the Washington Post wrote “Penn State football should be retired, permanently.”  I can find no record, though, of Rubin ever criticizing George W. Bush for lying about WMDs to help justify the invasion of Iraq, which, of course, resulted in the deaths of several thousand U.S. citizens.  Neither can I find an instance of Rubin speaking out against the torture of foreign nationals by the Bush administration.  It would be appropriate for us to hold the President of the United States to at least the same level of moral standard we hold the coach of a college football team.

(Author’s Note:  I’m not saying Rubin never criticized Bush, just that I have not been able to find an instance in which she did so.)

Self-serving appeals to moral standards when it is convenient do no one any good.  Any parent who has ever told their child it is wrong to do something like, say, exceed the speed limit, only to later have that child ask, “If it’s wrong to do that, why are you doing it?” understands the dangers posed by morality of convenience.

Moral outrage must be applied across the board.  If we can punish Paterno for failing his moral duty yet turn a blind eye to those who authorized, directed and committed torture under the Bush administration we are failing ourselves, our country and our children.

In the end, it is our morality that defines our individual worth.  Joe Paterno is not the only one who should be made aware of his deficiencies.

- William Rivers Pitt

I didn’t spend much time yesterday, or the day before that, or the day before that with the news media’s seemingly incessant recounting of the horrors that occurred a decade ago.  I didn’t watch the remembrance ceremonies or listen to stories of those lost, those who survived and those who were heroes.  Instead, I spent most of the time as I have most of the past decade—ruing that which we have become since the first plane slammed into the World Trade Center.

It’s not that I don’t care, because I do.  But I can’t help asking how we can spend so much time, money and effort memorializing the 3,000 people who died on that tragic day, while giving only minimal lip service to remembering the nearly 5,000 Americans who have died in Afghanistan and Iraq in the ensuing 10 years.  The 5,000 deaths are no less tragic simply because they didn’t all occur on the same day.  And, in America at least, we speak nothing of the 2,700 other international forces who have died supporting our inane wars, let alone the estimated 1.5 million Iraqis who have died violently since our invasion.

But it is not just the deaths for which I mourn.  I mourn for what the decade has cost us.  Not the $1.5 trillion that could have been used for schools, teachers, roads, job training and other things we so desperately need, but what we have lost of our national character.  Because 9/11 turned us into a nation of fear and a people who have decided we are willing to give up the cherished freedoms for which our forefathers fought in order to convince ourselves we are somehow more secure.

Sometime between 8:45 a.m. on 11 September 2001 and the end of President Bush’s speech on 20 September, many Americans began living in fear, a fear that has allowed our government to usurp our Constitutional rights granted under the 1st, 4th, 5th, 6th and 8th Amendments and Section 9 of Article 1 (the right of habeas corpus).  We somehow sleep better because we have tortured both guilty and innocent people.  And we are willing to let the government intrude where it could not previously have gone before without a warrant because those who invoke these measures reassure us it is only done with proper oversight.  This despite over 1,000 documented, unprosecuted abuses of the so-called Patriot Act and its bastard offspring.

We have seen a resurgence of hate in our national character.  It was never dead, but it had been much more muted since we came to grips with the rights of all people regardless of race in the ‘60s and ‘70s.  Our national hatred now has as its target anyone who bears some vague look about them as someone who might be a follower of Islam.  This hatred manifests itself in the seemingly never-ending vitriolic rhetoric emanating from right-wing talk shows; in the bombing of mosques; in good old-fashioned vandalizing that would have done the cross-burning Southern haters of Negros proud; and in the materials released to the media by those seeking election to our national house of ill repute, and by that I mean Congress.

We even have members of Congress who feel it appropriate to hold hearings into the “radicalization of Islam in America,” hearings that are right out of the McCarthy handbook for searching out communists.  But no one ever holds hearings into the “radicalization of Christian Fundamentalists in America.”  That, of course, is because we are a Christian Nation.  So it’s okay for Christians to hate, for Christians to burn books other religions consider holy, for Christian politicians to publicly flaunt how much they pray and criticize those that don’t put in an equivalent amount of time on their knees, for Christian pols to turn their backs on the “lazy” poor and for Christian wealth to prosecute an economic war on the American middle class.  The list could go on, but I think you get my point.

This is not the Christianity I was taught as a child.  I was taught that the Christian God loved everyone equally and that I was no better or worse than anyone else because of my faith.  I was taught that we were to stop and help the injured at the side of the rode instead of passing by with unseeing eyes.  I was taught that instead of meeting violence with violence, we should turn the other cheek.  I was taught that God gave us a brain and an inquiring spirit so we could grow as we expanded our understanding of the world around us, not so we could retreat into a cocoon of “faith” that denies science.

But the single item that distresses me most is that we now have children in the 5th grade who have known no other world.  To them, this is how the world is.  These children have never known a country that was not in an economic recession, for before it toppled almost two years ago, their country’s economy had been tottering on its feet like a punch-drunk prizefighter for the previous eight years.  Theirs is a country that has always tapped phones in secret, always imprisoned people without trial or due process of law, always tortured, always lived in a cocoon of fear and hatred that serves to justify virtually any act, no matter how barbarous or criminal or wrong.  Politicians, in their world, have always used threats of terrorism to frighten, to control, to change the subject, to win elections, and to make money for themselves and their friends with no consequences for such vicious acts.  For these children, it has always been this way.

How will they ever learn that it doesn’t have to be this way?  We all know children learn infinitely more by what they see than by what they are told, so unless we very soon see some sort of Christian miracle that can change the nation, change who we have become, to show them the better angels of our nature buried beneath the tarnish of our Brave New World, they are doomed to a life in which today is the norm.

Perhaps our Christian politicians should begin praying for such a miracle.

- Edmund Burke

Author’s Note: The following is excerpted from the draft of the book on Just War Theory which I am presently engaged in writing.

When we look at the morality of war, we have, unfortunately, an extensive history from which to draw anecdotal examples of immoral behavior. In instance after instance behavior has occurred that can be debated as to (1) whether or not the behavior was justified and (2) whether or not the result justified the behavior. It can be instructive to consider one such instance that has achieved nearly universal exposure in plays (Shakespeare’s Henry V), books and movies. This behavior, its justification and its result can provide a basis for considering the question of the value of the moral high ground.

Some may view it as only passing academic interest to subject historical wars to modern day Just War Theory, but there is much to be learned from looking at what has gone before through the lens of today’s thinking.  It may seem that holding, as has been done, mock trials to determine Henry V’s guilt in giving his orders for the slaughter of French prisoners may be largely an academic exercise (I know of no such case in which Henry has been found not guilty), but the study of both historical rules concerning warfare and warfare situations can aid us in the development of modern day Just War Theory.

On 25 October 1415, as part of the Hundred Years’ War, the English army under King Henry V met the French army commanded by Charles d’Albret, Constable of France¹ at Agincourt, in a narrow strip of open land between the woods of Tramecourt and Agincourt, near modern day Azincourt in northern France. Though outnumbered,² the English managed to visit a crippling defeat upon the French and perpetuated English dominance that continued until the slow decline of Plantagenet fortunes in France after the appearance of Joan of Arc. While the battle itself is an interesting story,³ Henry’s behavior during the battle provides an important scenario that is relevant to discussions of morality and war.

Because of their lesser numbers, in preparation for the battle the English adopted a defensive position designed to absorb attacks by the French. After the first two waves of French attacks were repulsed, the English found themselves in possession of around 2,000 French prisoners, all of whom were put under guard behind the English lines. Although the code of conduct at the time obliged the prisoners to refrain from making any attempt to either escape or return to the battle, the English could not be absolutely certain the prisoners would obey the code. Henry, therefore, had to concern himself with providing a sufficient number of guards to ensure the prisoners could not break free and rejoin the fight in the rear of the English lines.

As the English prepared to receive a third assault from the French, Henry decided he could not spare the number of men from his depleted ranks that would be required to guard the French prisoners so they could not rebel and launch themselves into the English rear. Upon reaching this conclusion, distasteful though it may have been, Henry ordered the slaughter of all the French prisoners. Describing Henry’s actions, John Keegan writes:

“Henry, a Christian king, was also an experienced soldier and versed in the elaborate code governing relations between a prisoner and his captor.  Its most important provision was that which guaranteed the prisoner his life – the only return, after all, for which he would enter into anything so costly and humiliating as a ransom bargain.  And while his treachery broke that immunity, the mere suspicion, even if well-founded, that he was about to commit treason could not justify his killing.  At a more fundamental level, moreover, the prisoner’s life was guaranteed by the Christian commandment against murder, however much more loosely that commandment was interpreted in the fifteenth century.  If Henry could give the order and, as he did, subsequently escape the reproval of his peers, of the Church and the chroniclers, we must presume it was because the battlefield itself was still regarded as a sort of moral no-man’s land and the hour of battle as a sort of legal dies non.”⁴

The incident at Agincourt is just one of many historical narratives that raise several questions, including:

1. Does, as Keegan suggests, the battlefield become a “moral non-man’s land” in which morality and ethics become irrelevant?
2. What morality, if any, applies to the ill treatment of prisoners of war in order to gain a battlefield advantage?
3. Who bears moral culpability for such orders—those who issue the orders; those who carry out the orders; or both?
4. If such actions are deemed to be unjust, how does their execution affect the perpetrator’s justification for prosecuting the war? Or does it?

Answers to questions such as these will depend largely upon two interrelated items—(1) how one views war, and (2) the value one places on retaining the moral high ground.

For the realist, the moral high ground is virtually non-existent when applied to considerations of war because, for him, the ends justify the means. Both the pacifist and the Just War Theorist, on the other hand, will normally place significant stock in maintaining the moral high ground. The pacifist will never condone Henry’s actions, and it is only with great reticence and assurance that the act is justified by some higher moral objective that adherents of Just War Theory will deign to endorse actions such as those of Henry V at Agincourt.

But why is the moral high ground of such importance? It is important because, simply put, humans are basically moral creatures.⁵ By this I mean we are special and unique among the animal kingdom in that we are capable of making judgments about our own and other people’s behavior. Furthermore, we have the capacity to consciously change the way we behave, both individually and collectively—we have the Freedom of Choice.

The moral high ground is that space in which our actions are motivated by and consistent with our own personal moral code. Because of our capacity for making such judgments and modifying our behavior, when we abandon a portion of our code in order to accomplish a specific end, when we perform an act that is contrary to what we believe, we yield the moral high ground. The result is injury, not only to those whom our actions affect, but also to ourselves.

This is not to say our choice of action will always be easy or straightforward. At Agincourt, Henry appears to have felt the need to kill his French prisoners, in part at least, to preserve the lives of his own soldiers. The result was a victory for the English army, but at what cost? We cannot know whether Henry or any of the Englishmen who carried out his bidding were ever stricken with such grave remorse that they later took extreme action on friends, loved ones or themselves. History does not tell us of the constant recurring nightmares any of them might have been forced to endure for the remainder of their lives.

In modern day warfare, the decision to torture a few individuals in order to extract information that can potentially save the lives of hundreds violates our moral code against doing harm to others. And yet, faced with such a choice, different individuals will make different decisions as to whether or not to compromise their own morality. It is this struggle for guidance in how to make, if not the “right” then, the “best” such decisions to which much of Just War Theory is directed.

Much of current Just War Theory rests on what has gone before.  Concepts and rules developed by the Greeks, the Romans, the medieval Catholic Church and philosophers of the past three centuries all put forth important considerations for today’s Just War Theory.  It is not too hard to imagine that, although warfare has changed considerably through the centuries, many of the same concerns such as the concept of “Christian charity,” concern for the devastation caused by war and consideration of the impact of war on non-participants are just as relevant today as they were when Augustine of Hippo established his views on warfare and the Christian ethos in the late 4th and early 5th centuries.

But the historical view provides us with more than just the theoretical underpinnings for developing a modern day Theory.  By looking at past wars and their aftermaths we can avail ourselves of a more comprehensive understanding of what drives us to war, how we prosecute wars and how we deal with war’s aftermath.  Were we to disregard prior warfare and concern ourselves only with future wars, we would be left to develop our Theory in a purely theoretical sphere with no empirical data, no historical facts to help direct our considerations. Having the concrete example of Henry V’s actions at Agincourt, and others like it, compels us to give consideration to the treatment of prisoners—not because we image they might be poorly treated, but because we know for certain they can be.

The lynchpin of Just War Theory is the effort to retain the moral high ground. A doctor who is committed to “first do no harm” will only inflict further injury (e.g., surgery) upon his patient when the expected result of that injury is a condition in which the patient’s welfare will be improved. Similarly, Just War Theorists will only condone the violation of the commandment against murder when the expected result is a condition that is morally superior to that which exists prior to the violation of the commandment. Moreover, the expected result must be seen to be a holistic moral improvement, not simply a one-sided result that will be advantageous to the state.

The value of the moral high ground is that it forces us to consider and then reconsider our actions. Abdicating it reduces our ability to not only justify our actions but, having acted immorally, later regain the high ground. When we kill once, it becomes far easier to kill a second time. When we give up our morality in pursuit of one end, it becomes far easier to give it up again later in pursuit of another. And with each abdication, it becomes that much more difficult for us to claw our way back to the top.