I f the U.S. Supreme Court ends up agreeing with
the government’s arguments in the cases of Jose
Padilla and Yaser Esam Hamdi, heard last week, those who seek answers to the eternally frustrating question, “Why do they hate us so?” will be deprived of one of their most facile answers. Let’s hope that doesn’t happen.
They hate us because of our freedom. That’s how many seek to explain the deep hostility many militant Islamists harbor for the United States and/or its government. Freedom leads to license, decadence, impiety and immorality and the blood of some fanatical adherents to a questionable interpretation of Islam simply boils at the prospect, say some.
If the government, however, simply by declaring Hamdi and Padilla (who are both U.S. citizens) to be “enemy combatants,” can confine them in a military brig with no charges brought against them, no access to a lawyer and no contact with friends or family, American freedom will be undermined.
That’s the kind of thing tyrants, totalitarians and absolute rulers do, not the servants of the people in a free country.
The ancient protection against arbitrary and indefinite imprisonment is the writ of habeas corpus. Applying for the writ allows one who has been seized or imprisoned to get a hearing before an impartial judge. There’s also the matter of a statute, 18 U.S.C. Sec. 4001(a), which bars the detention of citizens without express congressional authority.
Yaser Hamdi was captured in Afghanistan, fighting for the Taliban. He is a U.S. citizen because he was born in this country, although his parents were Saudis who moved back to Saudi Arabia. Jose Padilla is a Chicago native, captured at O’Hare Airport, on suspicion that he was part of a plot to set off a “dirty bomb” somewhere in the United States.
The government argues the “war on terror” allows the president, as commander in chief, to order anybody he deems an “enemy combatant” imprisoned indefinitely. There are two problems with this. The first is that Congress has never passed a declaration of war as the Constitution gives it the sole power to do. The second, as Justice Sandra O’Connor noted, is that “We’ve never had a situation where this war could last for 25 years or 50 years.”
Congress did pass an Authorization for Use of Military Force after Sept. 11. It authorizes the president “to use all necessary and appropriate force….” That’s not the same as “whatever he feels like.” And it is not express authorization to detain citizens.
If the Supreme Court allows this indefinite detention, American liberties are in great peril, and the terrorists will have succeeded in getting our own government to put them there.