In the year since the September 11 attacks, civil liberties for
some people have fallen into a surreal legal limbo. Yaser Esam
Hamdi is an example. He was captured in Afghanistan, sent to
Guantanamo, then transferred to a Norfolk military brig after the
Defense Department learned that he was a U.S. citizen. Hamdi is
being detained indefinitely, without seeing an attorney, even
though he hasn’t been charged with any crime. Jose Padilla, who
allegedly plotted to build a radiological “dirty bomb,” is also a
U.S. citizen. He, too, is being detained by the military —
indefinitely, without seeing an attorney, even though he hasn’t
been charged with any crime. Meanwhile, Zacarias Moussaoui,
purportedly the 20th hijacker, is not a U.S. citizen. Neither is
Richard Reid, the accused shoe bomber. Both have attorneys. Both
are being tried before federal civilian courts.
What gives? Four men: two citizens and two non-citizens. Is it
possible that constitutional rights — like habeas corpus, which
requires the government to justify continued detentions, and the
Sixth Amendment, which assures a speedy and public jury trial with
assistance of counsel — can be denied to citizens yet extended to
non-citizens? That’s what the Bush administration would have us
believe. Citizen Hamdi’s treatment is legitimate, insists Attorney
General John Ashcroft, because Hamdi is an “enemy combatant” and
there is “clear Supreme Court precedent” to handle those persons
differently, even if they are citizens.
Ashcroft’s so-called clear precedent is a 1942 Supreme Court
case, Ex Parte Quirin, which dealt with Nazi saboteurs, at least
one of whom was a U.S. citizen. “Enemy combatants,” said the Court,
are either lawful — for example, the regular army of a belligerent
country — or unlawful — for example, terrorists. When lawful
combatants are captured, they are prisoners of war, POWs. As POWs,
they cannot be tried (except for war crimes). They must be
repatriated after hostilities are over, and they only have to
provide their name, rank, and serial number if interrogated.
Clearly, that’s not what the Justice Department had in mind for
Hamdi.
Unlawful combatants are different. When unlawful combatants are
captured, they can be tried by a military tribunal. That’s what
happened to the Nazi saboteurs in Quirin. But Hamdi has not been
charged, much less tried. Indeed, the president’s executive order
of November 2001 excludes U.S. citizens from the purview of
military tribunals. If the president were to modify his order, the
Quirin decision might provide legal authority for the military to
try Hamdi. But the decision provides no legal authority for
detaining a citizen without an attorney solely for purposes of
aggressive interrogation.
Moreover, the Constitution does not distinguish between the
protections extended to ordinary citizens on one hand and unlawful
combatant citizens on the other. Nor does the Constitution
distinguish between crimes covered by the Fifth and Sixth
Amendments and terrorist acts. Still, the Quirin Court justified
those distinctions, noting that Congress had formally declared war
and thereby invoked articles of war that authorized the trial of
unlawful combatants by military tribunal. Today, the situation is
different. We’ve had virtually no input from Congress: no
declaration of war, no authorization of tribunals, and no
legislative suspension of habeas corpus.
Yet those functions are assigned to Congress by Article I of the
Constitution. It is Congress, not the executive branch, which has
the power “To declare War” and “To constitute Tribunals inferior to
the supreme Court.” Only Congress can suspend the “Privilege of the
Writ of Habeas Corpus … when in Cases of Rebellion or Invasion
the public Safety may require it.”
Without either constitutional or statutory authority, the
administration has decided that it will set the rules, prosecute
infractions, determine guilt or innocence, then review the results
of its own actions. That’s too much unchecked power in the hands of
the president. We cannot permit the executive branch to declare
unilaterally that a U.S. citizen may be characterized as an enemy
combatant, whisked away, detained indefinitely without charges,
denied legal counsel, and prevented from arguing to a judge that he
is innocent.
That does not mean the Justice Department must set people free
to unleash weapons of mass destruction. But it does mean, at a
minimum, that Congress must get involved and exercise its
responsibility to enact a new legal regimen for citizen-detainees
in time of national emergency. That regimen must respect citizens’
rights under the Constitution, including the right to judicial
review of executive branch decisions. When the executive,
legislative, and judicial branches agree on the framework, the
potential for abuse is diminished. When only the executive has
acted, the foundation of a free society starts to erode.
