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.

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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.

[Sandy]

The article explains the LEGAL PRECEDENT in 1942.

As I already pointed out, in 1942 the suspects were charged and tried. That's due process.

[mrsmith]

"First, the certification of a combatant should give a statement of reasons. "

Well, it does- "he's a member of Al Queda", (designated an enemy by Act of Congress).

Good suggestions here, though. It's a tough conflict fighting a war on our own soil. The Founders seemed to count on the use of Martial Law in this circumstance. Much as I love them, I think we have to find another way.

[Sandy]

Okay, so we're close but not quite there. It shouldn't be too difficult to add another section or two to that chapter and then come up with a court of competent jurisdiction.

BTW, I read that this guy's lawyer filed a habeas petition. Wonder how that's going to turn out.

[mrsmith]

The Fourth circuit turned down American-born Hamdi's lawyers request to meet with him- so far:
... the 4th U.S. Circuit Court of Appeals yesterday granted the government's motion to stop a meeting between Yaser Esam Hamdi and federal public defenders.

[okie01]

"It shouldn't be too difficult to add another section or two to that chapter and then come up with a court of competent jurisdiction."

As Chairman of the Judiciary Committee, the Honorable Patrick Leahy (D-Vt) should be able to draft and send an appropriate bill to the Senate floor within, say, a few days.

Except he's too busy keeping conservative judges off the federal bench.

Alas, I suspect anything that requires Democrat cooperation in the War on Terror just isn't going to happen...

[Sandy]

Thanks, hadn't seen that. That's completely different circumstances though. Hamdi was caught red-handed on the battlefield, wasn't he? They should've left him down in Cuba, imo.

[NormsRevenge]

How about "consorting with the enemy" ? First Johnny Jihad and now Sneaky Gomez .. Both are enemies of the state ..period

They both chose their lots and went out of their way to be in the middle of the action.. Inshalla

[mrsmith]

He's an American held in the US as a combatant, and no habeus corpus- so far ( I think this ruling was by a panel of the appeals court).

There must be a political plan behind the administration's choices of where they put these people- at least I don't see any consisitent rationale.

[Sandy]

at least I don't see any consisitent rationale

LOL. No kidding. It's like they're just sort winging things, and that's a major problem. We need some specific laws spelled out, and soon, before the Courts start handing down decisions that will likely suck.

[McGavin999]

I think what we've got so far are test cases. Looking at what's happening with Jihad Johnnie is what has made them look at another route. Although, you must admit that Jihad Johnnie is tame compared to what Jose was trying to accomplish.

[truth_seeker]

Here is what the article said, including the FACT they were tried in a MILITARY Commission (read Tribunal), and that American CITIZENSHIP, didn't provide them special rights.

In 1942, the Supreme Court ruled that the same designation--"enemy combatant"--applied to Nazi saboteurs who landed by submarine on American shores to blow up industrial plants. The eight men were tried before a military commission. One of them had a plausible claim of American citizenship. The Supreme Court ruled this to be irrelevant, for "citizens who associate themselves with the military arm of the enemy government, and with its aid, guidance and direction enter this country bent on hostile acts" qualify as "enemy belligerents."

As far as I am concerned, the mistakes to date were to NOT TREAT Taliban Lindh and the French Morrocan arab terrorists, with Military Tribunal status.

You may disagree, but the Supreme Court of the United States supported my view. I'm not a lawyer, but it is clear that wartime creates new and special circumstances, and those wartime circumstances do TRUMP a notion that an American, engaging in hostile efforts against the US, is entitled to a normal court trial. As it should be.

[Sandy]

The Supreme Court ruled...Citizens who associate themselves with the military arm of the enemy government, and with its aid, guidance and direction enter this country bent on hostile acts are enemy belligerents

Yes. But the very next sentence highlights the point that you are missing:

"It is as an enemy belligerent that petitioner Haupt is charged with entering the United States, and unlawful belligerency is the gravamen of the offense of which he is accused."
(emphasis mine)

The entire point of Quirin was to determine whether a trial by Military Commission was Constitutional. You, on the other hand, are arguing that because a trial by Military Commission is Constitutional, then detention with neither charge nor trial must be Constitutional too.

Charge + trial + judgement of guilt (Haupt)
vs.
Presidential proclamation of guilt (Padilla)

The two processes aren't even remotely similar. Quirin is precedent for the first process, not the second.

[Sandy]

wartime circumstances do TRUMP a notion that an American, engaging in hostile efforts against the US, is entitled to a normal court trial.

No kidding. Do you have me confused with someone who thinks Padilla is entitled to a normal court trial?

[usconservative]

You may disagree, but the Supreme Court of the United States supported my view. I'm not a lawyer, but it is clear that wartime creates new and special circumstances, and those wartime circumstances do TRUMP a notion that an American, engaging in hostile efforts against the US, is entitled to a normal court trial. As it should be.

Now you've done it....you've spoken the TRUTH! Best put your flamesuit on. Last time I said something like this on another thread I was called everything from a Nazi to things I won't repeat.

Bump for a well reasoned post (#1) and your reply.

[truth_seeker]

No kidding. Do you have me confused with someone who thinks Padilla is entitled to a normal court trial?

As a matter of fact I DID have you confused with someone who thinks Padilla is entitled to a normal court trial, because you had seemed to interject so strenuously that the procedure being followed was wrong.

I believe the government is on strong ground, detaining these individuals without charges, for an indefinite period. They may be more valuable for interrogation purposes, than if tried and sentenced. Also, at this time, trials and sentences may not be the best course, for international diplomatic reasons.

I further contend that Lindh, the French Morrocan and Reid (the Brit) should join Padilla in military detention. I feel that the government is handling Padilla with military detention, because they can already see the problems with giving these people a "forum" and civilian lawyers--it could be a farce, PR-wise and politically (international).

If these people get any kind of public forum, they (and their lawyers) will attempt to put Israel and America on trial, as with the Johnny Cochran style of trial. That isn't right or just, and should not happen. These people are just like Haupt, trying to kill Americans, as agents for an enemy force.