You Can Indefinitely Detain Some of the People Some of the Time

One of the larger problems in my life is that, whenever I want to write about a civil liberties issue, Glenn Greenwald has already beaten me to it. And written it better than I could have. Greenwald is a former civil liberties attorney and number one defender of The Constitution. He is not a Democratic apologist. He heavily criticized President Bush. And he is now heavily criticizing President Obama. In Greenwald’s opinion, suggesting that enforcing our laws is “radical” or “extreme” or “left-wing” is disgusting. When did enforcing the law become a partisan issue? He also writes about the media and how he believes that the media are beholden to the political class in a horrible, symbiotic relationship that ensures that the Fourth Estate will never actually hold our leaders accountable for anything.

And I agree with him on all of it. Absolutely all of it. Darn him! Darn him to heck!

For example, Glenn and I were furious this last week when Sen. Harry Reid kept using a verb that could just as easily have been crafted by Karl Rove. The verb was “release,” as in, “Terrorists from Guantanamo Bay will be released into the U.S.” Many pundits, and even Obama himself, used the verb “release” to describe what the government will do to detainees in Guantanamo Bay now that the administration has re-iterated its desire to close the prison there. “Release” evokes images of terrorists approaching the shore on boats and then merrily skipping off, free of shackles and permitted to wander throughout the country, blowing up whatever they please.

Let it be known: terrorists will not be released into anything. They will be shackled, they will be monitored, they will be in our custody and under guard as they are transported from Cuba to the mainland. And once on the mainland, they will continue to be monitored and under guard as they are moved to whatever prison they will occupy next. Those who believe that terrorists will be “released” in the United States are either negligently ignorant, willfully stupid, or maliciously misrepresentative. One guess as to which one describes Harry Reid.

Prior to September 11, 2001, we believed in something called “due process.” It’s a Fifth Amendment guarantee:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. [Emphasis mine.]

The Supreme Court has ruled before that, since the Constitution uses the word “person” and not “citizen”; and since it would have been very easy to use the word citizen, but person was used instead; and since the author of the Bill of Rights, James Madison, was a lawyer by trade and a very smart man and probably not prone to misusing words; that it therefore follows that the Bill of Rights was intended to apply not only to U.S. citizens, but anyone in the United States. This is affirmed in the Fourteenth Amendment, which prohibits a state to “deny to any person within its jurisdiction the equal protection of the laws.” Again, note the use of the word person where citizen could have been used, but wasn’t.

In 1993, the World Trade Center was bombed by a group of terrorists led by Omar Abdel-Rahman, better known as The Blind Sheik. The bomb damaged a parking garage and did kill some people, but it didn’t come close to bringing the building down. Abdel-Rahman and three other accomplices were indicted by civilian prosecutors, accused of breaking publicly-accessible laws, tried in open court inside the United States, under the guidelines of the Constitution and the rules of U.S. civil procedure, and sentenced to U.S. civilian prisons. After 1993, the nation was not less safe because Abdel-Rahman and his accomplices were being imprisoned inside the United States. Abdel-Rahman is housed at the federal Supermax prison in Florence, Colorado.

In 1995, Timothy McVeigh and his accomplice Terry Nichols parked a rental truck containing a homemade fertilizer bomb in front of the Alfred P. Murrah Federal Building in Oklahoma City. The bomb exploded, killing 168 people, injuring 800 others, and destroying the building. Nichols and McVeigh were indicted, again by civilian prosecutors, accused of breaking publicly-accessible (that is, not secret) laws, tried in open court, and sentenced to U.S. civilian prisons. McVeigh was given the death penalty. The nation is not less safe because Terry Nichols is housed inside the United States.

I think you get the point. Eric Rudolph, the 1996 Atlanta Olympics bomber; Wadih el-Hage, accused of involvement in the 1998 U.S. embassy bombings; Ted Kaczynski, the Unabomber; Richard Reid, the “shoe bomber”; Jose Padilla, the “dirty bomber.” All of these people are being held inside the United States right now, and no one — no one! — is arguing that the United States is less safe because of it. To suggest that allowing Dangerous Criminals inside our borders is silly; there are already more dangerous criminals here!

It’s also worth noting that, with the exception of Reid and Padilla, all of the above criminals were convicted using the 200-year-old, civilian due process proscribed by the Constitution. Reid and Padilla were held incommunicado in U.S. navy brigs. The government eventually dropped its terrorism charge against Padilla, who was alleged to be making a “dirty bomb” (a traditional bomb filled with radioactive material; it would not cause a nuclear explosion, but it would spread radiation). Since the government didn’t have enough evidence to prosecute the terrorism charge, the charge was dropped. Padilla, nevertheless, was sentenced because even though terrorism is a crime, all the things that terrorists do are already illegal, anyway! Blowing up a building is no more illegal because it was done with a political agenda in mind.

The assertion that Terrorists need to be tried in a special, extra-Constitutional way, held without charge, subjected to torture, and perhaps never afforded a trial is ludicrous. In the paragraphs above, we have ample evidence proving that trying terrorists in civilian courts, using civilian rules, does work. The United States is not less safe. And furthermore, housing convicted terrorists in civilian prisons does work. And furthermore, charging them and trying them does work. For people like Vice President Cheney to suggest that using due process makes us less safe just goes to show us how out of his mind the man is. He would probably be happier living in Iran, where the executive has unlimited power to imprison people for made-up reasons, or no reason at all. Here in the United States, we do not convict people merely on the confidential say-so of the executive branch; that’s the way dictatorships (you know, those countries that we purport to be fighting against — unless your name is “Saudi Arabia”) behave. Here in the United States, it is up to the executive to prove that the accused is guilty. Guilt is never assumed — unless, apparently, you committed a terrorism-related crime after September 11, 2001. Or you were linked to terrorism, no matter how specious the link or how questionable the evidence. Or you associated with terrorists, even if you didn’t know they were terrorists. Or you were planning on committing a terrorism-related crime, even if “terror” wasn’t your goal. Or, as Obama articulated yesterday, the government is afraid you might commit terrorist crimes in the future. Yes, the possibility of future law-breaking is now grounds not only for detaining someone, but for never giving them a trial or even a preliminary hearing to prove that they did what they were accused of doing. As long as the government says “Terrorist,” an individual’s guilt is implicit and that person will never, ever be released. (More likely, as Greenwald observed, you will be imprisoned indefinitely if the government can’t guarantee that it will win a trial. Do show trials sound like the hallmark of a vibrant democracy or a repressive despotism?)

Obama’s plan is definitely a step in the right direction, but it’s not nearly enough. In order to restore the rule of law to this out-of-control country, he must admit that there is no situation in which a person should be held indefinitely; habeas corpus is a right guaranteed to anyone in U.S. custody, and the U.S. Supreme Court has affirmed as much. Obama apologists have used exactly the same rhetoric President Bush used to support Obama’s case; namely, “we are at war.” And these prisoners are prisoners of war; therefore, they do not have the right to contest their detention, and they may be detained until the end of the conflict. Seeing as how we’re waging a war on an abstract idea, it’s hard to see exactly when (or if) this war will be over.

Are we now in the business of imprisoning people indefinitely? What does that say about us as a nation? What will historians say fifty years from now? Today, we regard the internment of Japanese-Americans during World War II as deplorable and appalling, but at the time, it made sense to our political leaders. We have the ability to stop lawlessness right now instead of musing, decades later, about the mistakes we made, and saying, “We’re so sorry. We’ll do better next time.” Unfortunately, every time “next time” comes up, we fail again (we began failing as early as the John Adams administration, with the passage of the Alien and Sedition Acts). Obama offers the promise of actually living up to our ideals as a country. Rather than fumble to attempt to explain and excuse his actions, we must ask, “Is what he is doing right? Is it legal?” And, as Glenn Greenwald wonders, “What would I have said if George Bush and Dick Cheney advocated a law vesting them with the power to preventively imprison people indefinitely and with no charges?”

Please do read Glenn’s article. It is a thorough, lucid, and amazing analysis of Obama’s position on these detainees, with some very tough questions and conclusions that must necessarily follow from that position. I do not believe they are questions that Obama and his supporters want to ask, because they lead to the very same places formerly occupied by previous administrations. At the end of the day, Obama & Co. are saying, “Yes, it is okay to detain some people indefinitely, without the government ever having to prove that they committed a crime.” Not only is that assertion illegal, it’s un-American, and if we continue down that road, it makes this country not only less safe, but less worth defending.