The Magazine

Due Process for Terrorists?

Jul 1, 2002, Vol. 7, No. 41 • By DAVID TELL, FOR THE EDITORS
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DURING THIS JULY FOURTH SEASON, the two hundred twenty-seventh year of American democracy now dawning, just how secure--under the temporary stewardship of President Bush and Attorney General Ashcroft--are the basic constitutional rights that democracy was founded to assert? One or another version of this question has been at the center of public debate almost from the moment the federal government took its first, halting steps in response to the attacks of last September11. And while we have never been especially impressed by the arguments of those who answer that the Bush administration's "war on terrorism" is a war on civil liberties as well, we note that elsewhere in the empire of political opinion such complaints are in ever wider circulation and at ever more feverish pitch. Even the Washington Post--an editorial page uncommonly sophisticated about principles of law; not at all the sort of outfit you'd expect to go off half-cocked--has now denounced the administration for arrogating to itself the "extraordinary power," at odds with "the Constitution's checks and balances," to "detain without trial American citizens forever with no meaningful judicial review," simply "on the president's say-so."

This seems odd, on several levels. To begin with, we can't see where the Bush administration is actually pretending to any such sweeping authority as the Post describes. At issue is the Justice Department's current position before the Fourth U.S. Circuit Court of Appeals in the case of Yaser Esam Hamdi, a Saudi national taken prisoner last fall with the rest of his surrendering Taliban/al Qaeda unit and now held in U.S. military custody--as a captured enemy combatant--at the naval brig in Norfolk, Virginia. The man happens to have been born in Louisiana. So his father, pursuing Hamdi's prerogatives as a putative American citizen, has filed a habeas corpus petition seeking his son's release from confinement. That petition hasn't been adjudicated; the government hasn't yet responded to it formally. But already a U.S. district court has granted Hamdi immediate access to private legal counsel by the local federal public defender's office. It is to these unsupervised contacts with the outside world by an apparent terrorist guerrilla--in the middle of a war with that guerrilla's murderous army--that the Justice Department objects. And, for the moment at least, that is the full extent of Justice's objection.

In other words: The Bush administration is not in fact announcing, as the Post suggests, that "any American" can be "locked up indefinitely, without a lawyer"--on the president's or anybody else's say-so. The Bush administration is announcing, instead, that any American can be locked up indefinitely without a lawyer provided that the executive branch of government can plausibly demonstrate that it believes the "American" in question has taken up arms against the United States during an ongoing international conflict. We would ask for a show of hands from those of our readers who fear they might somehow fall into John Ashcroft's sights this way, but any such exercise would obviously be frivolous. "Any American" has nothing to worry about. The Justice Department is really not doing anything "extraordinary" here. Indeed, so far as we can tell, it has the balance of international and constitutional law on its side.

To say nothing of plain common sense. Yaser Esam Hamdi, the Post concedes, "is not a sympathetic character." There is "little doubt" that a well-informed court would ultimately judge him an "enemy combatant" properly subject to detention even if he couldn't be proved guilty of a specific, ordinary crime. And "only the most doctrinaire civil libertarian would demand [Hamdi's] release at this stage."

Well, then, what are we arguing about? No, of course, the administration of American justice should not turn merely on the question whether the men whose fates it disposes are or aren't "sympathetic." Unsympathetic characters should be treated fairly, too. But the nation has just spent nine whole months chewing its nails over the possibility that the war on terrorism is mutilating our system of civil liberties. And before we spend another nine months doing it, one would think we'd wish to have in hand some speck of more-than-speculative evidence--anything at all--that such anxiety is justified. If it is true that John Ashcroft has assaulted our rights by arresting innocent people willy-nilly and detaining them "indefinitely" without basic procedural protections, then surely one such person--among the thousand-plus the federal government has detained since September 11--would by now have been identified. Where, after all this caterwauling, is the archetypically sympathetic victim of the war on terrorism, the man who has rotted away in jail for no good reason or has otherwise been obviously and badly abused?