History teaches that war and national crisis lead us to trample liberty in ways that are popular and seem necessary at the time, but that we later repent. The military trial of an Indiana civilian during the Civil War was subsequently thrown out by the Supreme Court. Abusive raids on immigrants after World War I were later repudiated. The World War II detention of Japanese-Americans in camps led Congress eventually to grant reparations.
In the wake of Sept. 11, are we at it again?
The tree of liberty is not about to topple, but it is being steadily chipped away.
One of our most basic liberties is the right not to be jailed without due process of law. As the Supreme Court reminded us only last June, “Freedom from imprisonment–from government custody, detention, or other forms of physical restraint–lies at the heart of the liberty” protected by the due process clause of our 5th Amendment.
It is also a fundamental human right protected by the International Covenant on Civil and Political Rights, a treaty to which the United States is a party.
But in combating international terrorism, the Bush administration has cut ever deeper into this basic liberty, with progressively less legal justification or respect for due process.
We began lawfully. In Afghanistan, our military captured men we reasonably believed to be enemy fighters during combat in a war zone. In wartime the military is entitled to hold captured enemy combatants for the duration of the war. The purpose is not to prosecute them–combat is not by itself a crime–but to deny their services to the enemy. Thus, unless they are charged with war crimes, there is no point in giving them access to defense lawyers or courts. Nor would doing so be practical in a war zone or where large numbers of enemy troops are captured.
When hundreds of captured combatants were transferred to the U.S. base at Guantanamo Bay, Cuba, however, the administration began to lose its innocence. Were they prisoners of war? In case of doubt, the Geneva Conventions require that the issue be referred to a competent tribunal. Despite ample doubt–and the protests of the Red Cross and United Nations–President Bush simply decided that they were not POWs.
A further encroachment on liberty took place when the U.S. forcibly brought to Guantanamo a group of men arrested in Bosnia, where they were allegedly plotting to blow up the U.S. Embassy. If the allegations were true, these men are dangerous criminals. But they were not captured in combat or in a war zone, and were unarmed, living as civilians with their families. The battlefield justifications for holding captured enemy combatants without charges did not apply to them. Yet the administration held them, too, in Guantanamo, without access to lawyers, courts or a trial.
Initially such treatment was reserved for foreigners. When the first U.S. citizen, John Walker Lindh, was discovered among the captives in Afghanistan, he was brought to the U.S., given access to a lawyer and charged with crimes. He is now being prosecuted in federal civilian court.
Not so the next U.S. citizen. Yasser Esam Hamdi was captured with Lindh in Afghanistan. When taken to Guantanamo, he protested that he was a U.S. citizen. Sure enough, it turned out that this resident of Saudi Arabia was born in Louisiana. He was swiftly transferred to the U.S.
But unlike Lindh, he was not charged with any crime, has not been allowed access to a lawyer and is being held in a Navy brig in Virginia. Although a federal court has ordered that the public defender be allowed to confer with him, the order is stayed while the government appeals.
At least initially, because he was captured in combat, Hamdi could lawfully be treated as an enemy combatant. But now his family lawyer (the former justice minister of Qatar) claims that the young man was in Afghanistan only for prayer and humanitarian aid. However, with no charge, no trial and no access to a lawyer, Hamdi’s claim may never be heard.
The most recently revealed case of an American is the most troubling.
Jose Padilla, also known as Abdullah al Muhajir, was arrested last month at O’Hare International Airport. Public statements by Atty. Gen. John Ashcroft allege that he was in the preparatory stages of a plot by Al Qaeda to explode a bomb laced with radioactive material. But no charges have been brought against him and no evidence made public.
After being held secretly for a month as a material witness in a sealed criminal case in New York, he was transferred earlier this month to a Navy brig in South Carolina, where he is being held as an “enemy combatant.”
Unlike his fellow citizens Lindh and Hamdi, but like the plotters in Bosnia, Padilla was arrested far from combat or a war zone–in the U.S.–and is publicly accused of criminal conduct. In law, then, his legal entitlements to due process are the strongest to date. Yet the military, arguing that its interest in him is for purposes of intelligence, not necessarily prosecution, now refuses to allow his lawyer access to him. Secretary of Defense Donald Rumsfeld claims the right to hold him until the “war” on international terrorism is over.
In other words, our government now claims the right to hold a U.S. citizen, arrested in Chicago and not in combat or in a war zone, indefinitely, perhaps for years, with no access to a lawyer and no trial.
Can this be legal?
Under the International Covenant, a minimum right of any person deprived of liberty is to “take proceedings before a court, in order that the court may decide without delay on the lawfulness of his detention.”
With no access to lawyers, hundreds of prisoners at Guantanamo–and potentially Hamdi and Padilla–are being denied this right.
Whether the detention is lawful depends mainly on national law. Under our 5th Amendment, no person may be deprived of liberty without due process of law.
However, limited exceptions are allowed where justified by weighty public interests and subject to procedural safeguards.
For example, people charged with serious crimes may be detained pending trial to ensure that they will not flee, obstruct justice or endanger the community. Material witnesses may be held to ensure their testimony at trial.
But only with procedural safeguards. Typically detainees have a right to an adversary hearing, to present evidence and to challenge the evidence against them, to a reasoned decision based on “clear and convincing” evidence, and to judicial review.
Even then, detention is usually for a limited time. Criminal suspects and material witnesses, for example, can be held only pending a speedy trial. Where confinement may be for an indefinite time–as with the dangerous mentally ill–procedural safeguards must include a mechanism for periodic review.
Padilla’s detention, at least, fails these tests. While there is a strong public interest in detaining a suspected terrorist, the only procedural safeguard for his current confinement as an “enemy combatant” is the say-so of executive branch officials, relying on secret, untested evidence.
Some say that in the world after Sept. 11, we cannot afford such constitutional luxuries. But as the Supreme Court answered long ago, in rejecting the military trial of a civilian during the Civil War, “The Constitution . . . is a law . . . equally in war and peace, . . . at all times, and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented . . . than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism.”
