May 02, 2004
Are You An Enemy Combatant?
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. —That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed… Declaration of Independence July 4, 1776
The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States…U.S. CONT. art II, §. 2, cl. 1.
Of all the post-Sept. 11 denials of fundamental and civil liberties, the “Enemy Combatant” doctrine is the most egregious, because it is unprecedented in the history of the United States and created out of the thin air of the President’s mind. There is no clear legal definition of exactly what an "enemy combatant" is; there is no law that defines it, no constitutional principles that govern it. However, if the President designates a person an enemy combatant under this doctrine (s)he can be detained indefinitely without charge or trial by military authorities, with no right to appeal and no right to a lawyer - even if (s)he is a U.S. citizen.
The Bush Administration claims that the power to designate someone—anyone—an enemy combatant springs from constitutional roots, claiming that the President’s Constitutional powers as Commander-in-Chief of the U.S. Armed Forces permit him to order the military to seize suspects he (and he alone) designates enemy combatants in the War on Terror. Yet there is nothing in Article II, Section 2, clause 1 of the Constitution that gives birth to this doctrine, or even hint at such a power to detain an American citizen in times of War. How then can the President lay claim to a power that is not constitutionally sanctioned, nor mentioned within its foundational decrees?
He has affected to render the Military independent of and superior to the Civil Power...Declaration of Independence July 4, 1776
In its recent argument in front of the United States Court of Appeals for the Second Circuit, the Bush Administration insisted that military-style rules like the enemy combatant doctrine now apply to American citizens, even on American soil, because Al Qaeda has "made the battlefield the United States." Really, since 9/11 there has not been one terrorist attack on American soil; indeed, the President has stated that we should live our lives as usual. We should be aware of our surroundings, but otherwise sally forth and be capitalists. When I step outside my doors every morning and travel to work, there is no evidence of battlefield America. But even if this were the case, there is no provision in the Constitution—at least that I am aware of—that allows the President to declare Martial Law.
In time of crisis, governments are always tempted to detain perceived enemies without charges, hold them incommunicado and deny them counsel. It happened during WWII, and in 1971 Congress passed a law referred to as Section 4001 which states that: No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress…Limitation on Detention; Control of Prisons, 18 U.S.C., § 4001.
But the framers of the Constitution—ever mindful of history—knew that if the government was allowed to act on those impulses, the result would be tyranny and oppression. That is why they built into the constitution the very rights the Bush Administration is now intent on crushing under the throne of Monarchical rule.
Let My People Go
The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it...U.S. CONT. art I, §. 9, cl. 2.
Most of us are familiar with the cases, of Jose Padilla—a.k.a. Abdullah Al Muhajir—and Yasser Hamdi argued before the United States Supreme Court on April 28, 2004. Both of these men were labeled enemy combatants by Bush, and both have been subsequently held without charges and in isolation since their initial incarceration, denied even the right of Habeas Corpus, which is the right of every American to appear in a court of law, so it can be determined whether or not that person is imprisoned lawfully and whether or not he should be released from custody.
These cases, contrast sharply with that of John Walker Lindh, the American Taliban, and points to the arbitrary, and some might say, racist application of the enemy combatant doctrine.
While both Lindh and Hamdi were captured on the battlefield in Afghanistan at the same time, Lindh, who is white and from an upper middle-class family, was shipped back to the U.S. and was never labeled an enemy combatant. After he was flown back to the U.S. after a brief period of interrogation, Lindh was allowed to see a lawyer and appear before a criminal court in Virginia. He was subsequently sentenced to 20 years in prison in October 4, 2002 as part of an agreement reached in July 2002 under which he pled guilty to one count of supplying services to the Taliban and a criminal information charge that he carried a rifle and two hand grenades while fighting against the U.S.-backed Northern Alliance. And while neither Padilla or Hamdi can be connected to the death of an American citizen Lindh took part in the prison uprising which cost a CIA operative his life.
Once more America’s racist past (and present) makes itself felt in a system that is supposed to be predicated on equal justice for all before the law. Had Padilla—born in Brooklyn of Puerto Rican ethnicity, or Hamdi who was born in Baton Rouge Louisiana of Saudi Arabian parents and subsequently raised in Saudi Arabia—been white would they now be labeled enemy combatants? My guess is no, they would have treated like Lindh, and the press would have lamented their sad ordeals.
Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court… U.S. CONT. art III, §. 3, cl. 1.
The enemy combatant doctrine begs another question: why, if there is such compelling evidence against Padilla and Hamdi have they not been charged with treason? Is this because there is such a high threshold to skirt in order to prove a case of treason, and the government is relying on the testimony of one man who admits that his intelligence is not exactly creditable?
It is my hope that the U.S. Supreme Court, despite the conservative minority that seems bent on deferring to the executive, can see clearly the danger in allowing this doctrine to stand. At no other time in American history, with the exception of the illegal internments of Japanese-Americans during WWII, have the Constitutionally guaranteed rights of Americans—especially minorities once again—been under such assault from the government that is supposed to champion their cause. Indeed how can we as Americans stand by and re-elect a man who would hold high the cause of freedom and democracy in Iraq as a reason to prosecute a War, while trampling them underfoot here in America? Is it because we think that we can’t be labeled enemy combatants?
It is clear to me that George W. Bush does not understand or respect the document—the United States Constitution—he has sworn to uphold and protect, except in cases where he believes it will lend credence to his agenda. Of our Constitutionally codified rights as Americans, he cares not a whit. Indeed when speaking of citizens’ rights he refers not to the U.S. Constitution, which is the basis for U.S. law, but to the bible, a happenstance I find frightening.
So the next time you are walking down the street, talking on the phone, engaged in political debate that might be considered critical (like this article) of the Bush Administration, or returning from an Arab country, have a care, for you too can be considered an enemy combatant and locked away without cause or charge. And according to the Bush Administration you will have no rights the American government is bound to entertain.
Padilla and Hamdi are in effect no longer American citizens; their rights (and perhaps yours), have been arbitrarily stripped away by the President without due process of law. Is this how we want to fight the War on Terror? Is this how we want to spotlight American democracy around the world, with hypocrisy and tyranny? Is this how OUR government is supposed to treat its citizens?
The true measure of the greatness of any society that holds liberty, equality, and due process sacred before the law, is not how it treats its citizens in time of peace and tranquility, but how it treats them in time of strife when it is all to easy to smother liberty in the name of preserving the Republic. George W. Bush is President and answerable to us, the American people, for his action, not a monarch where his word should go unchallenged by the two co-equal branches of government. No matter what angle it is viewed from, the enemy combatant doctrine is illegal.
It is hard to imagine that America would look kindly on a foreign government that demanded the right to hold some of its own citizens in prison, incommunicado, denying them access to legal assistance for as long as it thought necessary, without ever charging them with a crime.Posted by V. Edward Martin at May 2, 2004 08:28 PM
Nevertheless, that is the position that George Bush's administration has tried to defend in the courts with regard to American citizens whom it has deemed to be "enemy combatants." —The Economist, London, December 14, 2002
You’ve totally ignored the pertinent precidents in international law here, especially the Geneva Conventions. The concept of “enemy combatants” is not something, as you allege, that sprang only out of the president’s mind or is governed only by the US Consitution—it’s a thorny issue, admittedly, but you should really broaden your account to get anything resembling a full picture.
From a memo by the general councel of the Defense Dept:
“An “enemy combatant” is an individual who, under the laws and customs of war, may be detained for the duration of an armed conflict. In the current conflict with al Qaida and the Taliban, the term includes a member, agent, or associate of al Qaida or the Taliban. In applying this definition, the United States government has acted consistently with the observation of the Supreme Court of the United States in Ex parte Quirin, 317 U.S. 1, 37-38 (1942): “Citizens who associate themselves with the military arm of the enemy government, and with its aid, guidance and direction enter this country bent on hostile acts are enemy belligerents within the meaning of the Hague Convention and the law of war. Enemy combatant” is a general category that subsumes two sub-categories: lawful and unlawful combatants. See Quirin, 317 U.S. at 37-38. Lawful combatants receive prisoner of war (POW) status and the protections of the Third Geneva Convention. Unlawful combatants do not receive POW status and do not receive the full protections of the Third Geneva Convention.”
It’s a matter of debate, with alternate possible interpretations—I’ll be the first to say—but you seem to be jumping to some especially harsh and unwarrented conclusions in trying to read into this some unprecendentd and draconian power-grab by George Bush.
Posted by: Martin at May 3, 2004 12:09 AMI agree, Martin. It’s not a power grab. It’s just a slow, steady erosion of our freedom.
Some people like the feeling of security, knowing that the government is watching out for them. Others have a very low threshold for the loss of even the smallest freedom. Most, however, are content to do nothing as long as they can work, feed their families, and take a vacation every year.
“First they came for the Jews and I did not speak out because I was not a Jew. Then they came for the Communists and I did not speak out because I was not a Communist. Then they came for the trade unionists and I did not speak out because I was not a trade unionist. Then they came for me and there was no one left to speak out for me.”Posted by: Lee at May 3, 2004 07:40 AM
If it looks like a duck, and quacks like a duck, it’s a duck. U.S. citizens are entitled to a quick and speedy trial. International law does not supersede the constitution. U.S. presidents are not supposed to have dictatorial powers.
Posted by: Bob J Young at May 3, 2004 09:23 AMThe “rebellion” clause of habeus corpus in the Constitution could be interpreted as exactly what domestic terrorism IS. Then again, to suspend it indefinitely for the period of some “war on terror” of undetermined duration, that certainly violates the spirit of that clause.
There is no tactical or military advantage to holding people forever in Guantanamo or some similar facility. I don’t get all bleary-eyed in bemoaning the fact that Al Qaeda supporters get arrested here, but I do think it’s disturbing if they don’t go to TRIAL for it.
The war on poverty was lost. The war on drugs is an ongoing losing battle. Now we have the war on terrorism. My economics professor once said to beware whenever the government declared war in the name of any cause, because such wars are unwinnable.
If these people have to wait til the war on terrorism is won, they’ve just recieved life sentences without benefit of a trial by peers, or any trial at all for that matter.
There are POW’s in Iraq who were not held captive as long as these individuals. Is that fair? Is it even constitutional? I don’t think so. And neither should the Court.
Posted by: Michael at May 3, 2004 01:08 PMMartin—
I believe harshness is needed at this juncture BEFORE the abuse of our fundamental rights as Americans become so eroded as to be meaningless. The checks and balances system was put into place for a reason; i.e. so that no one branch of our government could get so powerful as to force its will in a tyrannical fashion upon the other tow, or upon the American people.
As for Ex parte Quirin, 317 U.S. 1, 37-38 (1942) you will not that the decision deals with “Citizens who associate themselves with the military arm of the enemy government…” where is the enemy government here? Is al Qaida now to be considered a government? If so where is its seat of power, what is its structure? I do not believe al Qaida no matter how large it grows could be considered a enemy government. If the Court finds that it is not, then what, will Ex parte Quirin, 317 U.S. 1, 37-38 (1942) no longer apply?
Another quick point: at the time of the Ex parte Quirin, 317 U.S. 1, 37-38 (1942) ruling the U.S. was engaged in a “declared” War with clearly defined nations, and clearly define enemies. Al Qaida is an amorphous organization with tentacles stretching the breath of the world; new rules must be drafted to deal with it. Holding American citizens outside the law is not it.
The beauty of the “War on Terrorism” is that it is such a vague idea as to allow the Bush administration, or future administrations, to twist and bend the law pretty much any way they want to. In the past, there was a clearly defined enemy, a clearly defined battlefield, and a clear set of actors whom eventually negotiated the end of the conflict, afterwhich those detained in battle were dealt with according to international law.
But how does one declare an end to the “War on Terrorism?” One can never know whether there are cells planning attacks. Are any acts of terror a continuation of the war, whether on American soil or not, whether against American targets or not? Does the “War on Terrorism” only pertain to foreign threats, or domestic threats as well? Who has the right to declare an end to a conflict? Al Queda seems to operate fairly independent of bin Laden, so even were he to be captured/killed/agree to a truce, that doesn’t ensure an end to terrorism. These all seem to be questions that need to be answered, yet have not been. Until then, Bush, Ashcroft, etc. seem to think they have a “carte blanche” to run roughshod over Constitutional rights.
Posted by: blipsman at May 3, 2004 03:25 PMIt’s a funny thing about terrorism. To hear many people speak of it is to think it is something brand new. The Sons Of Liberty (John Adams and Paul Revere were members) would now be refered to as terrorists. The only thing that has changed is the ease and speed of travel.
In a time of chaos, I could understand a temporary imposition of Martial law and curfews. It happened in my home town after it was struck by a tornado. National Guard soldiers were placed at the street atreries and restricted travel to residents. It was appropiate to prevent looting. Even though I lived outside of the town, I easily entered the town by parking outside of town limits and walking through a nursery to a friends house.
It was needed for a period in NYC in 2001.
There is no need for suspension of jurisprudence, during “hostilities”. A people who choose to surrender their inalienable rights, do not deserve them. An American who does not demand justice is a traitor.
If the American electorate is so cowed by the actions of a radical group of Muslims, that it cedes it’s government to a group of blind fundamentalist christians whose agenda is clearly to force it’s “vison” on the populace and the world. Then perhaps it will come time soon for the Sons of Liberty to rise again and expose George V for what he is.
Posted by: Greg at May 3, 2004 08:10 PMI think the Conservatives, with their distrust of creeping authority should find the current situation disturbing. Handing unrestrained power to people may make us more secure in the short term from terrorists, but it will make us more vulnerable to our own government. The threat to our nation from terrorism must be dealt with. But it must be dealt with, with preservation of our democracy and our republic in mind.
The War on terror is an indefinite, vaguely laid out war who’s progress and framing are highly vulnerable to political whim. The sacrifice of our civil liberties will do little else but lay more power to victimize our own citizens in the hand of the corrupt and the blindly ambitious, whichever party they happen to come from.
Posted by: Stephen Daugherty at May 3, 2004 11:11 PMWell, I agree with Stephen that this needs to be an issue that goes beyond parties. And I’ll help you man the barricades myself once the signs of abuse become clear… but can you agree that we’re still at a stage when party affiliation is key in deciding whether such abuses are real?
I don’t buy the argument that encroachment of civil liberties is by and large a “creeping phenemonenon,” something that steals up on you without your noticing. It’s generally pretty obvious and dramatic. I know this flies in the face of dogma from right and left—but where is the creeping phenomenon borne out by history? I can’t think of instances when transformations into tyranny were the least bit subtle. Not in Iran, not in the Soviet Empire or Red China, certainly not in Nazi Germany.
This cuts both ways—the right seems to thinks that if prayer in school is banned, we’re two steps away from tossing Christians to the lions. If you can’t buy an uzi at 7-11, we’re two steps away from abolishing the Second Amendment.
This controversy now under discussion boils down to the following: there are terrorist-fighting legal measures proposed by the administration that are currently in the process of both legislative and judicial review. This is a GOOD thing—the wheels of democracy are turning. Oversight and deliberation are in place. Compromise, if needed, is likely. But in the meantime, you guys are using rhetoric that makes it sound like Bush has abolished Congress and the Supreme Court and burned down the Reichstag.
Part of defending civil liberties, my friends, involves not crying wolf in an attempt to score political points.
Posted by: Martin at May 4, 2004 12:39 AMMartin,
An American citizen was detained and held incommunicado for two years without access to lawyers or the courts. This was done solely on the authority of the President.
I think that counts as a real abuse.
You are right that this is going through judicial review. I hope that they decide against the administration, but five of these guys blocked a Florida recount and put this administration in power. So, as they say, the jury is still out.
And yes, the encroachment on civil liberties in post WWI Germany was subtle. A reading of any history of Germany will make that clear. The quote in my last post was written about that 15-year long transition.
I doubt President Bush is trying to consciously create a dictatorship, nor do I think he would necessarily abuse the powers he is seeking. I do find it disturbing that he is asking for powers that would enable a successor to do so, apparently without thought for the consequences.
Part of defending civil liberties, my friends, involves not crying wolf in an attempt to score political points.
It’s not “crying wolf” if there really is a wolf. :)
I believe it’s better to be cautious about giving away civil liberties (this country is already arguably less free than countries like Australia, New Zealand, and the Netherlands). If that means being the first to cry wolf, just to get everyone’s attention focused on a potential problem, then so be it.
Like Stephen, I would think conservatives would be howling in outrage. That’s what they did when Clinton asked for roving wire-taps.
I find it very disturbing and disappointing that more Americans seem not to notice or care what the Bush Administration is doing, or why. Yes Martin, little by little, bit by bit we are loosing our nation; it is a feeling I cannot seem to shake, and it sits on my shoulders like a boulder that increases in weight as each successive tail of abuse by the Bush Administration finds its way to the airways.
It bothers me greatly that more Americans seem not to take notice of the decline of our nation. We, as society seem resigned to our fate, or is it we are all too bush chasing the American dream, or what we believe is the American dream, that we hardly take note of our failing nation.
It is sad, so sad…
V Edward, your namesake Martin did bring up a good point that historically, the major changes for the worse in various governments around the world have been dramatic and obvious as they took place. A good counterpoint to that is that sometimes it doesn’t take a “major” change for the worse to make things worse. A U.S. with open elections but with meaningless habeus corpus, isn’t as good as a U.S. that operates as the Constitution intended. I wouldn’t go nuclear on the rhetoric with comparisons to Nazi Germany, et al., but I also wouldn’t say that the situation should just be tolerated in the name of fighting terrorism.
When liberties are taken away inch by inch, each inch must be fought for, for the sake of each inch. In response to Martin’s viewpoint that if there isn’t a sweeping revolution on enslave a nation, there is no major danger, I think the danger of the encroaching threat to liberty isn’t a Mao-style China or a Hitler-style Germany or a Stalin-style Russia. The danger is commensurate with the pieces chipped away from what we value as a nation. “Less free” is not as good as “more free” obviously. And that’s the point.
When fighting monsters, you have to be careful not to become a monster yourself. This is the core issue the U.S. is struggling with at the moment. How will we wrestle a mangy dog without picking up any fleas? The question of what can be done to fight the bad guys without becoming bad guys, should be accompanied by, what level of tactical setbacks are we willing to put up with in order to preserve our liberty? Perhaps if a prosecutor doesn’t get a search warrant, it’s an acceptable setback if one can get at the bad guy another day after all the i’s are dotted and t’s are crossed. A few might slip through some cracks and succeed with some plots, but I think it’s a danger worth struggling through in order to preserve that which we cherish the most.
