The National Journal's Stuart Taylor Jr. continues his efforts to strike a reasonable balance between fairness and security when it comes to our national need to detain enemy combatants.
In his latest column, Taylor argues that the United States government must provide some process to allow alledged enemy combatants to challenge the government's claims.
The biggest civil-liberties issue that the nation has confronted since Sept. 11 -- indeed, the biggest in many years -- is getting only a fraction of the attention it deserves. One reason is confusion over exactly what is at stake. The real issue is not whether the government can detain "enemy combatants" in military brigs without criminal charges. It can. The U.S. Court of Appeals for the 4th Circuit so stated in a July 12 preliminary ruling. (pdf file) Based on World War II precedents, it seems almost certain that the Supreme Court will agree.
The real issue is whether the government can refuse to give people it says are enemy combatants any opportunity, ever, to tell their side of the story to any court, any lawyer, or the public, and can instead keep them in solitary confinement for months, years, perhaps decades -- even if they are U.S. citizens, and even if they were arrested in this country in civilian clothes.
As Taylor explains, the Bush Administration's position is radical, if not outrageous.
The Bush Administration is creating new legal structures and precedents that could last for decades. Officials urge us to "trust" that they will not abuse these wartime powers. That is an inappropriate standard. As anyone with a rudimentary knowledge of our Constitutional history should know, the Constitution's framers were concerned not about trust but rather the mistrust of government power. (see also: "checks and balances" and "separation of powers") We are a nation of laws, not good intentions.
As Taylor notes, there is a recent and clear example to show why we should worry about the executive branch's assumption of unilateral power. He writes:
Perhaps the most vivid example is an Egyptian student named Abdallah Higazy. He was arrested and held as a material witness after an aviation radio was found in a hotel room in which he had stayed on Sept. 10 and 11; the room faced the World Trade Center. The FBI told a federal judge that Higazy had confessed to owning the radio, after initially denying it. This much was true: Higazy had said what his FBI interrogator told him to say after hours of interrogation so intense that, as Higazy later put it, "I felt I was going to faint," and -- he claims -- after the interrogator had threatened his family. Higazy was charged with lying to investigators and paraded before the media as a terrorist. But then an American pilot who had previously stayed in the same hotel room turned up and claimed the radio as his own. The government had to admit that Higazy was entirely innocent and his confession was false. The judge is investigating whether the FBI intentionally misled him.
What would have happened to Higazy if he had been thrown into the "enemy combatant" box, with no chance to tell his story to any judge, lawyer, or journalist? Will the courts really let the administration do that to people?
One hopes that such a result is unlikely, but nothing is impossible.
Regardless, it is well past time for the American people to demand that the Bush Administration join in the creation of judicial processes that include some due process and fairness. It is also time for Congress to insist upon it.
The Congressional elections less than two months from now should provide a perfect avenue for this needed national discussion.