Are You An Enemy Combatant?

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. --That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed… Declaration of Independence July 4, 1776

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States…U.S. CONT. art II, §. 2, cl. 1.

Of all the post-Sept. 11 denials of fundamental and civil liberties, the “Enemy Combatant” doctrine is the most egregious, because it is unprecedented in the history of the United States and created out of the thin air of the President’s mind. There is no clear legal definition of exactly what an "enemy combatant" is; there is no law that defines it, no constitutional principles that govern it. However, if the President designates a person an enemy combatant under this doctrine (s)he can be detained indefinitely without charge or trial by military authorities, with no right to appeal and no right to a lawyer - even if (s)he is a U.S. citizen.

The Bush Administration claims that the power to designate someone—anyone—an enemy combatant springs from constitutional roots, claiming that the President’s constitutional powers as Commander-in-Chief of the U.S. Armed Forces permit him to order the military to seize suspects he (and he alone) designates enemy combatants in the War on Terror. Yet there is nothing in Article II, Section 2, clause 1 of the Constitution that gives birth to this doctrine, or even hint at such a power to detain an American citizen in times of War. How then can the President lay claim to a power that is not constitutionally sanctioned, nor mentioned within its foundational decrees?

He has affected to render the Military independent of and superior to the Civil Power...Declaration of Independence July 4, 1776

In its recent argument in front of the United States Court of Appeals for the Second Circuit, the Bush Administration insisted that military-style rules like the enemy combatant doctrine now apply to American citizens, even on American soil, because Al Qaeda has "made the battlefield the United States." Really, since 9/11 there has not been one terrorist attack on American soil; indeed, the President has stated that we should live our lives as usual. We should be aware of our surroundings, but otherwise sally forth and be capitalists. When I step outside my doors every morning and travel to work, there is no evidence of battlefield America. But even if this were the case, there is no provision in the Constitution—at least that I am aware of—that allows the President to declare Marshall Law.

In time of crisis governments are always tempted to detain perceived enemies without charges, hold them incommunicado and deny them counsel. It happened during WWII, and in 1971 Congress passed a law referred to as Section 4001 which states that: No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress…Limitation on Detention; Control of Prisons, 18 U.S.C., § 4001.

But the framers of the Constitution—ever mindful of history—knew that if the government was allowed to act on those impulses, the result would be tyranny and oppression. That is why they built into the constitution the very rights the Bush Administration is now intent on crushing under the throne of Monarchical rule.

Let My People Go

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...U.S. CONT. art I, §. 9, cl. 2.

Most of us are familiar with the cases, of Jose Padilla—a.k.a. Abdullah Al Muhajir—and Yasser Hamdi argued before the United States Supreme Court on April 28, 2004. Both of these men were labeled enemy combatants by Bush, and both have been subsequently held without charges and in isolation since their initial incarceration, denied even the right of Habeas Corpus, which is the right of every American to appear in court of law, so it can be determined whether or not that person is imprisoned lawfully and whether or not he should be released from custody.

These cases, contrast sharply with that of John Walker Lindh, the American Taliban, and points to the arbitrary, and some might say, racist application of the enemy combatant doctrine.
While both Lindh and Hamdi were captured on the battlefield in Afghanistan at the same time, Lindh, who is white and from an upper middle-class family, was shipped back to the U.S. and was never labeled an enemy combatant. After he was flown back to the U.S. after a brief period of interrogation, Lindh was allowed to see a lawyer and appear before a criminal court in Virginia. He was subsequently sentenced to 20 years in prison in October 4, 2002 as part of an agreement reached in July 2002 under which he pled guilty to one count of supplying services to the Taliban and a criminal information charge that he carried a rifle and two hand grenades while fighting against the U.S.-backed Northern Alliance. And while neither Padilla or Hamdi can be connected to the death of an American citizen Lindh took part in the prison uprising which cost a CIA operative his life.

Once more America’s racist past (and present) makes itself felt in a system that is supposed to be predicated on equal justice for all before the law. Had Padilla—born in Brooklyn of Puerto Rican ethnicity, or Hamdi who was born in Baton Rouge Louisiana of Saudi Arabian parents and subsequently raised in Saudi Arabia—been white would they now be labeled enemy combatants? My guess is no, they would have treated like Lindh, and the press would have lamented their sad ordeals.

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court… U.S. CONT. art III, §. 3, cl. 1.

The enemy combatant doctrine begs another question: why, if there is such compelling evidence against Padilla and Hamdi have they not been charged with treason? Is this because there is such a high threshold to skirt in order to prove a case of treason, and the government is relying on the testimony of one man who admits that his intelligence is not exactly creditable?

It is my hope that the U.S. Supreme Court, despite the conservative minority that seems bent on deferring to the executive, can see clearly the danger in allowing this doctrine to stand. At no other time in American history, with the exception of the illegal internments of Japanese-Americans during WWII, have the constitutionally guaranteed rights of Americans—especially minorities once again—been under such assault from the government that is supposed to champion their cause. Indeed how can we as Americans stand by and re-elect a man who would hold high the cause of freedom and democracy in Iraq as a reason to prosecute a War, while trampling them underfoot here in America? Is it because we think that we can’t be labeled enemy combatants?

It is clear to me that George W. Bush does not understand or respect the document—the United States Constitution—he has sworn to uphold and protect, except in cases where he believes it will lend credence to his agenda. Of our constitutionally codified rights as Americans, he cares not a whit. Indeed when speaking of citizens’ rights he refers not to the U.S. Constitution, which is the basis for U.S. law, but to the bible, a happenstance I find frightening.

So the next time you are walking down the street, talking on the phone, engaged in political debate that might be considered critical (like this article) of the Bush Administration, or returning from an Arab country, have a care, for you too can be considered an enemy combatant and locked away without cause or charge. And according to the Bush Administration you will have no rights the American government is bound to entertain.

Padilla and Hamdi are in effect no longer American citizens; their rights (and perhaps yours), have been arbitrarily stripped away by the President without due process of law. Is this how we want to fight the War on Terror? Is this how we want to spotlight American democracy around the world, with hypocrisy and tyranny? Is this how OUR government is supposed to treat its citizens?

The true measure of the greatness of any society that holds liberty, equality, and due process sacred before the law, is not how it treats its citizens in time of peace and tranquility, but how it treats them in time of strife when it is all to easy to smother liberty in the name of preserving the Republic. George W. Bush is President and answerable to us the American people for his action, not a monarch where his word should go unchallenged by the two co-equal branches of government. No matter what angle it is viewed from, the enemy combatant doctrine is illegal.

It is hard to imagine that America would look kindly on a foreign government that demanded the right to hold some of its own citizens in prison, incommunicado, denying them access to legal assistance for as long as it thought necessary, without ever charging them with a crime.

Nevertheless, that is the position that George Bush's administration has tried to defend in the courts with regard to American citizens whom it has deemed to be "enemy combatants." —The Economist, London, December 14, 2002