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On December 6, prosecutors for the U.S. Government were scheduled to present their first witnesses in a case against Salim Ahmed Hamdan — a former driver for Osama bin Laden. The testimony is part of pretrial hearings that will determine whether the military tribunal at Guantanamo has jurisdiction over the case. Just one day before, on December 5, Seth Waxman, the lawyer representing 37 Guantanamo detainees argued before the U.S. Supreme Court that Congress was wrong in 2006 when it denied the prisoners' right to habeas corpus — under which they might seek a judicial review of their detention.
"If our law doesn't apply, this is a law-free zone," Waxman told the court, referring to the Guantanamo prison.
The United States has leased the naval base from Cuba since 1903, in the aftermath of the Spanish-American War, when Cuba was occupied by the United States. This is the first time the court has agreed to consider whether the right to habeas corpus found in the Constitution extends to the Guantanamo prisoners.
Americans with vivid memories of the terrorist attacks of 9-11, and dismayed by the growing casualty lists emanating from our ongoing war in Iraq and Afghanistan, where the insurgencies are fueled mainly by forces connected to or supported by al Qaeda, may be inclined at first to say: "Who cares about the Guantanamo prisoners' rights? They're our enemies in the war on terror. Lock them up and throw the key away!"
Even Americans who normally stand by the Constitution may seek a loophole in the fact that the detainees are not U.S. citizens and are being held outside the United States. The rights guaranteed by the Constitution and springing from our common law therefore do not apply to them, goes the argument.
Such arguments might carry more weight if we could rest assured that our own government would not abuse the precedent set by its "war on terror" (a war that has never been formally declared by Congress, which is not an insignificant point) to incrementally start denying constitutional protections to its own citizens, perhaps charging some with treason on the grounds that opposition to the war in Iraq amounts to giving aid and comfort to the "enemy" (should Congress ever decide who that is).
That the rights of all Americans have taken a hit since our "war on terror" was initiated after 9-11 is undeniable. As William F. Jasper observed in his article “Trading Freedom for Security” in The New American magazine for May 5, 2003:
Over the past few months, a staggering array of truly alarming programs, policies, and legislative proposals has come to light: conducting searches without warrants; military tribunals for U.S. citizens; dispensing with habeas corpus; increased wiretapping and electronic eavesdropping; video surveillance; see-through-clothing x-ray machines; "data mining" of financial transactions and virtually all electronic databases; national identification cards; and biometric identification. Some of these schemes have been scuttled (temporarily) by exposure; others have been adopted or await legislative action.
Americans are inclined to believe that they need not be concerned about bending the Constitution to facilitate the war on terrorism, because these extra-constitutional government powers will only be used against men named Mohammed or Ali who wear funny-looking turbans on their heads. However, think about this for a moment: Have you flown on an airplane recently? Are the intrusive and humiliating pat-downs, searches, and cross-examinations limited to passengers who resemble Osama bin Laden? Are not grandmothers of Swedish ancestry from North Dakota subjected to the same rituals? Why is it so hard to believe, therefore, that the suspension of the Bill of Rights might be applied to native-born, patriotic Americans, as well as to alleged "enemy combatants"?
Still not convinced? Consider some of the language found in this draft of the Patriot Act II:
Definition of "terrorist suspect": Section 304 states that the term "'suspected terrorist' means any person as to whom the Attorney General or the Secretary of Defense...has determined that there is reason to believe" has engaged in terrorism as defined in various sections of the United States Code, or who falls into a number of other broad categories, or "is a member of a terrorist organization designated as such."
There is historical precedent for our government attempting to limit the Bill of Rights during undeclared wars. Congress passed the notorious Alien and Sedition acts in 1798, during the Adams administration's waging of an undeclared naval war with France. The most onerous of these, "An Act for the Punishment of Certain Crimes against the United States," made it a crime to publish "false, scandalous, and malicious writing" against the government or its officials.
The unpopularity of these acts led to the downfall of the Federalists and the rise of the Jeffersonian Democratic-Republican Party.
That America must defend itself against all who would attack her is obvious. Article IV, Section 4 of the Constitution specifies that "The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion." Today,the states have been invaded not only by terrorists, but also by an army of illegal aliens. If our government were to follow the Constitution to counter both invasions it would:
1. Deny entry visas to foreigners with connections to known terrorist organizations.
2. Secure our borders against anyone entering illegally.
3. Ascertain the whereabouts of illegal aliens in our midst, apprehend them, and deport them.
4. Obtain a congressional declaration of war any time it is necessary to invade a foreign nation to protect our nation from attack.
It is neither necessary nor in the interest of protecting our freedom to circumvent the Constitution in order to protect our nation from invasion, however. As Benjamin Franklin once said, "Those who are willing to sacrifice essential freedom for security deserve neither." But as we saw, the Federalists under Adams attempted to sacrifice freedom for security and it led to their demise. Fortunately, thanks to statesmen such as Jefferson and Madison, who condemned these acts and defended states' rights in the Kentucky and Virginia Resolutions, our freedom survived intact.
The best way to safeguard our freedom and our security is to wage war only according to the Constitution and to punish our enemies in open court, according to the provisions of the Constitution. It is not necessary to seek loopholes in the Constitution to apply against alleged terrorists. Give them their day in open court: The light of day will expose the guilty and protect the innocent from false prosecution.
If we continue to exploit extra-constitutional loopholes, however, the rights we curtail may wind up being our own.
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