It is always amazing how many who do not care one whit about constraints on First Amendment rights implicit in contemporary “campaign finance reform” or limitations on peaceful protests around abortion clinics or who insist on the narrowest possible interpretation of the Second Amendment manage to get their shorts tied up in a rigid knot about the detention of illegal combatants associated with Al Qaeda. There are certainly serious civil rights issues that need to be addressed, but there remains a strange and unsavory sensitivity to rush to the defense of only those who hate America.
Some try to invoke Pastor Martin Niemöller’s warning:
“First they came for the Jews
and I did not speak out
because I was not a Jew.” …
“Then they came for me
and there was no one left
to speak out for me.”
However, even this sound observation can be misapplied. There are also times they come for thugs; there are also times they come for murderers; and there are also times when they come for the evil. We should be able to discern the difference and speak up for those who come to protect us.
The Bush Administration is faced with an awkward situation. They are charged with fighting a war that sometimes takes place on American soil against enemy soldiers who do not conveniently, and according to the laws of war, wear uniforms. These “llegal combatants” fall into an unfamiliar legal no man’s land. They are not quite prisoners of war since they are not part of a regular armed force. They do not even have formal “ranks and serial numbers” that are normally required of prisoners. At the same time, these people are not mere criminals, but part of an enterprise that is at war with the United States. The sooner the United States makes a formal declaration of war, the easier it will be sort out the legal categories.
Americans feel uncomfortable, and justly so, when arbitrary executive authority is used to detain people, even extremely dangerous people. While there is little evidence that the Bush Administration has abused its authority in this matter, there is always a danger of tyranny when one branch of government can act solely and unilaterally to detain people. In Ex Parte Quirin, decided in 1942, the Supreme Court invoked common law practices to empower the government to try un-uniformed Nazi saboteurs (one of whom was an American citizen) in military tribunals. The court was silent about indefinite detention of similar illegal combatants. Yet, under the Ex Parte Quirin doctrine the government will probably be able to hold indefinitely people like Jose Pedilla who were likely conspiring to engage in terrorist activity. Nonetheless, there is a more appropriate and Constitutionally regular way to hold illegal combatants.
The US Constitution has made provision for dangerous situations where conventional and important legal protections might need to be modified. Article I of the US Constitution provides that:
“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.”
Obviously, in cases of “rebellion or invasion”, other measures can be taken and Congress should make a provision for dealing with these new illegal combatants in a thoughtful and formal way. Consider the following proposed steps:
- Via legislation, Congress should provide the temporary authority for the executive branch to detain those who it has strong reason to believe are part of the foreign network at war with the United States. The legislation should make clear the level of proof required for this detention.
- Congress should provide for a special court with the sole purpose of supervising this detention. Members of this court could be cleared to review classified information. Every six months (or whatever time period Congress specifies), the executive branch must re-make the case for continued detention to this special court.
- Congress should place a time limit on this legislation so that this special executive power does not continue indefinitely and so that the specific provisions of the legislation can be reviewed and modified as necessary.
These legislative steps would not only protect the country, but also insure that anyone who is detained is done so under the review and care of all three branches of government. Importantly, these special provisions would be temporary in nature.
It is time for Congress to act in order to protect Americans and American liberties and avoid the unnecessary distraction of constant arguments about what may be more detentions.
This entry was posted on Tuesday, June 25th, 2002 at 5:14 pm and is filed under Law, Politics, Social Commentary. You can follow any responses to this entry through the RSS 2.0 feed.
You can leave a response, or trackback from your own site.
Unlawful Combatants
It is always amazing how many who do not care one whit about constraints on First Amendment rights implicit in contemporary “campaign finance reform” or limitations on peaceful protests around abortion clinics or who insist on the narrowest possible interpretation of the Second Amendment manage to get their shorts tied up in a rigid knot about the detention of illegal combatants associated with Al Qaeda. There are certainly serious civil rights issues that need to be addressed, but there remains a strange and unsavory sensitivity to rush to the defense of only those who hate America.
Some try to invoke Pastor Martin Niemöller’s warning:
However, even this sound observation can be misapplied. There are also times they come for thugs; there are also times they come for murderers; and there are also times when they come for the evil. We should be able to discern the difference and speak up for those who come to protect us.
The Bush Administration is faced with an awkward situation. They are charged with fighting a war that sometimes takes place on American soil against enemy soldiers who do not conveniently, and according to the laws of war, wear uniforms. These “llegal combatants” fall into an unfamiliar legal no man’s land. They are not quite prisoners of war since they are not part of a regular armed force. They do not even have formal “ranks and serial numbers” that are normally required of prisoners. At the same time, these people are not mere criminals, but part of an enterprise that is at war with the United States. The sooner the United States makes a formal declaration of war, the easier it will be sort out the legal categories.
Americans feel uncomfortable, and justly so, when arbitrary executive authority is used to detain people, even extremely dangerous people. While there is little evidence that the Bush Administration has abused its authority in this matter, there is always a danger of tyranny when one branch of government can act solely and unilaterally to detain people. In Ex Parte Quirin, decided in 1942, the Supreme Court invoked common law practices to empower the government to try un-uniformed Nazi saboteurs (one of whom was an American citizen) in military tribunals. The court was silent about indefinite detention of similar illegal combatants. Yet, under the Ex Parte Quirin doctrine the government will probably be able to hold indefinitely people like Jose Pedilla who were likely conspiring to engage in terrorist activity. Nonetheless, there is a more appropriate and Constitutionally regular way to hold illegal combatants.
The US Constitution has made provision for dangerous situations where conventional and important legal protections might need to be modified. Article I of the US Constitution provides that:
Obviously, in cases of “rebellion or invasion”, other measures can be taken and Congress should make a provision for dealing with these new illegal combatants in a thoughtful and formal way. Consider the following proposed steps:
These legislative steps would not only protect the country, but also insure that anyone who is detained is done so under the review and care of all three branches of government. Importantly, these special provisions would be temporary in nature.
It is time for Congress to act in order to protect Americans and American liberties and avoid the unnecessary distraction of constant arguments about what may be more detentions.
This entry was posted on Tuesday, June 25th, 2002 at 5:14 pm and is filed under Law, Politics, Social Commentary. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.