Posted on 06/20/2002 4:25:32 PM PDT by xsysmgr
About once every two weeks or so, our rights hang in the balance, barely surviving the threat represented to them by the Bush administration.
This is one of those times — at least it was on Monday, although by today this latest threat may already have passed.
The military detention of Jose Padilla has produced one of the choruses of periodic howls from the predictable quarters, and from some unpredictable ones as well, including Alan Keyes and the New York Post's excellent film critic and columnist Jonathan Foreman.
Jude Wanniski, firmly in the predictable camp, hazards to guess the reason why I've defended the detention: "Maybe his mommy taught him in the cradle not to pay attention to the Constitution when it comes to Arabs and Muslims, the way Saudi mommies tell their kids to grow up to commit suicide."
Eleanor Clift on The McLaughlin Group last weekend, meanwhile, marveled at how blithely I was willing to throw away our constitutional rights (maybe she wouldn't have been so surprised, if only she knew what my mommy had taught me in the cradle).
Embedded in all this heated rhetoric is the idea that there is no check on the executive's authority in the Padilla case. But habeas corpus has not been repealed (if it had been, that would indeed be news, and actually endanger our rights).Which means that if the heavy-breathers are correct and Padilla's rights are so obviously being trampled, his lawyer can challenge the constitutionality of his detention in court. Which is exactly what she — with plenty of help from the ACLU — is going to do.
What the heavy-breathers need to provide is some reason, besides rhetoric — How can this happen to a U.S. citizen? It can happen to anybody! Yada, yada, yada — for thinking that this appeal will succeed.
So far, a couple of legal liberals have been more reasonable in their commentary on the matter than some of the civil-libertarian conservatives.
Julian Epstein wrote in the Washington Post last week, "Pursuant to the Geneva conventions and ample precedent in U.S. law, the Bush administration is well within its rights to detain those properly determined to be lawful or unlawful combatants until the conclusion of the armed conflict, and only then to try them in a properly constituted military tribunal, a military court or in civilian courts."
Lawrence Tribe was slightly more sour in the New York Times but nonetheless wrote that "releasing captured soldiers who belong to an enemy force committed to the murder of American civilians — whether that force is the army of a nation-state or of a transnational organization like Al Qaeda — is suicidal."
Tribe goes on to say "that detention by military authorities may indeed be constitutional — but only if review by a federal court confirms the executive's assertions that people detained are in fact enemy combatants."
Tribe is referring to habeas review, which will happen (although the courts probably won't review the facts of the case, but instead will look at whether the executive has this power and is operating in a generally reasonable manner).
It is doubtful, as David Rivkin points out (check out his excellent stuff on this and other questions at fed-soc.org), that a habeas appeal will succeed in this case, since case law, and a fair reading of the Constitution, both suggest that the president has the power to designate "enemy combatants" and that the courts will conduct their review with the utmost deference to this authority.
Otherwise, how is a president to run a war? If the executive can't designate Padilla an "enemy combatant," it shouldn't be able to designate anyone else one either, or indeed to make any combat-related decisions at all. A court would have to sit in judgment of every single bombing target in Afghanistan.
That Padilla was caught at O'Hare instead of Mazar-e-Sharif certainly counts for something — we wouldn't drop a bomb on him here.
But the logic of the administration's critics suggests that we can treat our enemies as "enemy combatants" only when they are defensively deployed in Afghanistan. When they are here planning offensive operations against us, well, gee, then they are simply ordinary criminals with every possible legal right and protection to get them off the hook.
This is the deeper point: Since there is no reason to believe that U.S. citizens are exempt from the executive's power to designate "enemy combatants" (see the Quirin decision), what Bush's critics should oppose, if they want to be consistent, is the right of the executive to make military detentions and hold military trials at all.
In other words, if Padilla is being treated in an un-American manner, so are all those guys in Guantanamo Bay. This was Bill Safire's original (quite insane) position, as he opposed even a military trial for Osama bin Laden (!) as an unacceptable breach of the American system of justice.
So, rather than have the Guantanamo Bay detainees getting relentlessly pumped for information — which has occasionally been helpful, for instance in catching the al Qaeda cell in Morocco — the Bush critics would presumably handle this matter entirely differently: detainees would all get lawyers and be afforded Fifth Amendment rights, and not have to tell us a damn thing except why we should have read them their Miranda rights more carefully (witness the Lindh trial).
This is no way to run a war. Intelligence is crucial to our fight, and interrogation is the way get it. Which is why Jose Padilla needs to sit in a military brig somewhere thinking he is going to have absolutely no recourse for the next 15 to 20 years.
Now, perhaps the administration, as Ruth Wedgwood suggested in the Wall Street Journal the other day, should set up an additional, formalized process for reviewing the status of persons designated "enemy combatants" as part of the system of military trials and detention.
But, by the time the administration does this, all the critics will have forgotten about Padilla. Instead, there will be some new supposed threat to our rights, to be forgotten in its turn.
Liberalism has encroached conservative circles, including in the tendency to argue points with short, emotional appeals (and yes, appealing to the fears of people about authoritarian abuse is an emotional appeal) rather than with logic and in depth appreciation for complexity.
Citizenship doesn't matterFrom a constitutional view, the issue is straightforward. The "enemy combatants" who commit or plot illegal acts of war do not have to be read their Miranda rights or charged with an offense and tried speedily. Instead, like the German and Japanese soldiers our forces captured on the battlefield during World War II, they can be held until the end of the conflict.
That some of these enemy combatants — such as Abdullah Al Muhajir — are American citizens makes not the slightest difference.
The U.S. Supreme Court spoke clearly on this issue 60 years ago, when it affirmed the status and convictions of eight saboteurs who had entered the United States surreptitiously on a mission to bomb targets in support of Nazi Germany. All eight were tried and convicted as "enemy belligerents" by a military commission. Two were U.S. citizens.
The legal issue resolved, the decision becomes one of policy. The policy in this new war in which the enemy attacks civilians in our cities is that prevention trumps punishment. In practice, that policy requires our government to do all it can to learn what people such as Al Muhajir know about plots to commit additional acts of mass murder.
Understand this: If we take Al Muhajir into our civil-court system by bringing criminal charges, we will not be able to question him.
Instead, his attorney will insist on his Fifth Amendment "right to remain silent." In fact, aggressive defense attorneys will end up turning the tables. John Walker Lindh's attorneys have shut him up and successfully argued to the trial court that our intelligence officers be forced to give them information. If the government refuses, the defense will argue that the court must drop the charges.
So here's the choice: Put enemy combatants such as Al Muhajir in a process — long ago approved by the Supreme Court — that gives us a possibility to learn of future terrorist attacks. Or put him in the criminal justice system, knowing we will not be able to question him and he might be set free to plot again.
Is this really such a hard call?
EX PARTE QUIRIN, 317 U.S. 1 (1942) .. SCOTUS decision mentioned in the article by Lowry
In my opinion, almost every military involvement of the US has ended badly since then. Even the Gulf War left Saddam leading a nation whose assistance to terrorists has been reportedly tolerated for ten years.
I would like to know what criteria will be used to end this undeclared war. ( I have read that it was the Bush administration who requested that there not be a formal declaration of war, but rather a resolution authorizing the use of force. )
Our nation has had enemies since its founding. I can't imagine that we will be successful at eliminating all of them. For example, I don't think our nation would tolerate the killing of teenage Iranians dancing in the street celebrating attacks on the Great Satan. Future belligerents, however, come from just such groups.
The problem I have with the present situation is that I can't envision an outcome any different than that depicted in Orwell's "1984". "War is Peace". Constant war between large segments of the world's population, justifying oppressive government control of every aspect of life.
Please, someone, provide a description of life in the US 3, 6, and 9 years from now in terms of conditions here in the US and the level of military activity required. I would love to have some optimistic scenario to consider.
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