Response to Winchester Star Editorial

November 22, 2010

Adrian O’Connor
The Winchester Star
2 North Kent Street
Winchester, VA 22601

Dear Sir:

In the paper’s opinion piece of Friday, November 19, 2010, entitled “Our View: Justice Not Served”, you asked the following question: “Why should an enemy combatant possess the same rights granted to citizens of the nation whose life and property he so wantonly violated?” (emphasis yours). I would like an opportunity to answer that question.

Prior to September 11, 2001, the courts frequently aligned with both the legislature and the executive branch on matters of civil liberty relative to national security. The Supreme Court had repeatedly given more weight to national security concerns during active military campaigns, only repairing damages done to civil liberties after the cessation of hostilities (as in the 1988 apology by Congress for its prior ruling that internment of those with Japanese ancestry in Korematsu was constitutional). Chief Justice William Rehnquist directly discussed this issue in his book, All the Laws but One: Civil Liberties in Wartime (1998) by citing Cicero’s idea of inter arma silent leges, “during war law is silent”, arguing that there is no reason to believe that presidents in future times of war or justices rendering judicial opinions would act any differently than their predecessors.

Initially, the Bush administration was very careful politically to limit its detention activities to non-citizens. In November, the President signed an Detention Order outlining the procedures to deal with belligerents being captured on the ground in Afghanistan, limiting its scope to non-U.S. citizens who were past or present members of al-Qaeda. However, in my view, the Order was Constitutional Law 101 turned upside down, even though it only applied to non-citizens. It cited but never defined “international terrorism”. It created guilt by association by targeting members of an anti-American organization. Association itself instead of action could lead to detention and trial for war crimes. There was no requirement to show probable cause, no right to a speedy trial, no right to confront witnesses, no right to a jury, no right to appeal to civilian courts, and acquittal did not guarantee release. Additionally, the proceedings could be “closed” to both the defendant and his counsel if it was determined to be necessary to guard the secrecy of classified information and sources, to protect identity and physical safety of tribunal participants, or other “national security interests”. The Bush administration used the assurance that this only applied to non-citizens and post-attack fear and panic to justify its Order. It cited possible sleeper cells poised for a new round of attacks, terrorists that could inhibit the criminal process by threatening prosecutors, judges, and even potential jurors, and the loss of intelligence in open courts to garner support for trial by military tribunal.

I believe the problems started with asking for an authorization of force against terrorism. Terrorism is not an ideology that can be rooted out. Terrorism is a tactic ideologists use to further their cause. As long as there are those dissatisfied with the status quo, there will be some who choose violence as their means to effect change. Therefore, terrorism cannot be eradicated. This means we are not only at war with Al Qaeda and those who harbor them, but “all” terrorists, making our mission global in reach, creating an infinite number of enemies and no discernible endpoint. Anyone of any nationality could potentially be labeled an “enemy combatant”, and a conflict without a foreseeable end makes detentions constitute life sentences. It is extremely dangerous to agree that affiliation with anti-American organizations alone should be sufficient justification for arrest and detention. This is exactly what terrorists desire: an overreaction that tears at the fabric of democracy. Who decides which groups, which members?

Second, I believe that the Constitution and the Geneva Convention already provided a perfect framework for dealing with enemy combatants. The rule of law worked in the cases of Timothy McVeigh (convicted and executed for the Oklahoma City Bombing), John Walker Lindh (the American citizen captured while fighting with the Taliban who pled guilty and was sentenced to 20 years), and Jose Padilla (after he was transferred back to the civilian courts and prosecuted criminally, he was convicted and sentenced to 17 years, 4 months). Neither Zacharias Moussaoui nor Richard Reid was a US citizen but they were charged in criminal courts and had access to attorneys. Clearly, these cases demonstrate that civilian federal courts are perfectly capable of trying alleged terrorists (i.e. enemy combatants). Had we adhered to the Geneva Convention, we could still have held the combatants indefinitely so as to prevent them from returning to the battlefield. The government erred when it panicked over security concerns of another imminent attack and worked to circumvent the law for intelligence/interrogation purposes. In my opinion, it was this focus on the intelligence effort that led the train off the tracks.

Why do I care about the rights of terrorists who have either killed or seek to kill American citizens and military personnel? I think David Cole summarized my feelings succinctly:

"What we do to foreign nationals today often paves the way for what will be done to American citizens tomorrow. The line between citizen and foreigner, so natural during wartime, is not only easy to exploit when restrictive measures are introduced, but also easy to breach when the government later finds it convenient to do so. The transition from denying the rights of enemy
aliens to infringing those of American citizens was unusually swift with [Yaser] Hamdi and [Jose] Padilla; more often, the transition takes years to complete. But history suggests that the transition is virtually inevitable, and that therefore in the long term, the rights of all of us are in the balance when the government selectively sacrifices foreign nationals’ liberties” (Enemy Aliens: Double Standards and Constitutional Freedoms in the War on Terrorism, 2003, emphasis mine).

How can a state founded on the rule of law be allowed to classify anyone they wish an “enemy combatant” and make them virtually disappear, confined in an unknown location, indefinitely, never charged or afforded access to legal counsel and prevented from petitioning a judge concerning actual innocence? Admittedly, no where herein have I advocated just setting detainees free to reenter the battle and attack us again. This is what the Geneva Convention specifically prescribed detention for. My argument is about whether or not all individuals are still equal under the Constitution and afforded unalienable rights. If so, no person, even a non-citizen should be arbitrarily deprived of liberty unless they have due process of law. It must be remembered that the Constitution only speaks of “citizens” when discussing voting and eligibility to office; otherwise, rights of association, due process and equal protection apply to all “persons” subject to our laws. Alexander Hamilton spoke eloquently to this very issue: “The practice of arbitrary imprisonments [has] been, in all ages, the favorite and most formidable instruments of tyranny (The Federalist No. 84).”

No one person acting as executive should have the ability to arbitrarily decide whether or not another has the rights afforded by the Constitution, even non-citizens. The Bush administration erred by creating a “legal classification whereby all rights granted by law—domestic and international—become simply a matter of executive grace” (Leila Nadya Sadat, “A Presumption of Guilt: The Unlawful Enemy Combatant and the U.S. War on Terror”, Denver Journal of Law and Policy, 37:4, 2009).

Therefore, in the interests of all of us, the rights of non-citizens, even our enemies, should be of concern—to all of us.