The Enemy Within: The Constitution doesn't protect al Qaeda

Opinion Journal ^ | 06/14/2002 | RUTH WEDGWOOD

[Pokey78]

Al Qaeda has championed asymmetric warfare. Donning civilian garb permits its suicide bombers to travel across borders in pursuit of soft targets. Ever inventive, it is now attempting to gain an advantage from the most sacred symbol of the American union--the Constitution.

[Mo1]

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[Right_in_Virginia]

Bump

[SuziQ]

I just read this article; I get the Opinion Journal downloaded everyday. This woman make infinite sense when it comes to how American citizens who have chosen to cooperate with al Queda should be treated under the Constitution. Shouldn't Jose Padilla be treated the same way as Taliban Johnny; as an enemy combatant? Padilla may not have taken up arms against the US yet, but why not the charge of 'aiding and abetting the enemy'?

[aristeides]

Padilla entered the U.S. the way the German saboteurs (including U.S. citizen Haupt) entered the U.S. in 1942: prepared to commit acts of war in a way not consonant with the rules of war. Like them, he is an unlawful combatant, and can be treated as such, with the blessing of the U.S. Supreme Court.

[aristeides]

Here's the Wedgwood column on FR.

[Sandy]

Of course the big difference between the '42 case and this one is that the American citizen in 1942 received due process--he was charged with a crime and tried.

[Dane]

Of course the big difference between the '42 case and this one is that the American citizen in 1942 received due process--he was charged with a crime and tried

Sandy, the Libertarian/ACLU co-chair of the,

Free Jose Jihad Comittee

He only wanted to kill a few thousand, not a few million

[aristeides]

If the Fedgov chooses at the moment not to try Padilla, but to treat him like a POW, I don't see that any harm is done. After all, enemy soldiers wear uniform. If Padilla did not wear uniform, I don't see that as a reason why he should get more favorable treatment.

[Sandy]

I don't think I'm asking for favorable treatment. I'm asking for due process. We can't allow the government to simply lock up citizens indefinitely without showing cause, and I think the author of this piece makes some very good suggestions. Congress and the President need to come up with something, anything other than the way this is currently being handled.

[aristeides]

I think you are asking that he be treated more favorably than a POW.

[okie01]

The Constitution protects the rights of U.S. citizens.

But is not the definition of a U.S. citizen subject to Congressional alteration?

Therefore, legislation addressing the status of U.S. citizens found to be members of or otherwise allied with states and organizations in a state of armed belligerence with the U.S. might be in order. Perhaps, once membership or alliance was established, their citizenship would be forfeit and they could be handled as stateless aliens.

It should prove easier to demonstrate the association in open court than to provide evidence of any crime or conspiracy.

[Sandy]

Already done. 8 USC §1481

[okie01]

Already done. 8 USC §1481

Except that all the language refers to "a foreign state or political subdivision thereof".

The language needs to be amended to take account of terrorist organizations.

The fact that al-Qaeda, et al is an organization -- and not a state -- creates an ambiguous status that serves as protective coloration under our legal system and international law. Thus, the legalistic quibbles about POW vs "combatant" status for the Gitmo group, the posturing around Padilla and the media event the Moussaoui trial will become.

We need to strip away this ambiguity and treat al-Qaeda personnel for what they are: sworn enemies with deadly intent. This means military justice, not the civil kind. And that means stripping the Padillas of their citizenship...in order to remove their Constitutional protections.

But, at the same time, we must not weaken our own Constitutional foundation. One of the fundamental aims of terrorists is to weaken the institutions of the antagonist nation and radicalize its populace.

This is one time when we actually need some legislation.

[Sandy]

I don't care if he is treated like a POW or not. They can treat him however they want to after they use some sort of due process in declaring him an enemy combatant or an unlawful belligerent or whatever they want to call him. If they have evidence justifying the belief that he is an enemy combatant, then it shouldn't be difficult to show it to a court. Perhaps something similar to the FISA Court would be in order. There has to be something other than no law at all.

[Sandy]

Check out 1481(a)(7) (follow the links):

committing any act of treason against, or attempting by force to overthrow, or bearing arms against, the United States, violating or conspiring to violate any of the provisions of section 2383 of title 18, or willfully performing any act in violation of section 2385 of title 18, or violating section 2384 of title 18 by engaging in a conspiracy to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, if and when he is convicted thereof by a court martial or by a court of competent jurisdiction.

[truth_seeker]

We can't allow the government to simply lock up citizens indefinitely without showing cause...

And your reason is?

The article explains the LEGAL PRECEDENT in 1942. Are you too young, or too naiive to grasp war?

[okie01]

Looks like we've got 'em clean under 2385. Twenty years will do...

The next question is: Why isn't the DOJ doing exactly this?

[okie01]

"The next question is: Why isn't the DOJ doing exactly this?"

Whoops! Just thought of the answer to my own question.

In order to strip citizenship from the accused, the person first has to be proven guilty of the crime involved -- according to 2385, "conspiring, etc.", while a member of an "organization, etc."

By the letter of the law, membership itself is not a reason to erase U.S. citizenship. So, unless you want argue that membership is prima facie evidence of conspiracy, we're back where we started.

In any event, I believe we would be advised to have a way to arrive at a clear-cut, unambiguous law to address this issue. Wars against terrorists are different, both by definition and necessity, than wars against states.