One of the fun things I did this past weekend was listen to some very distinguished legal academics discuss civil rights during times of terror. One of the speakers reminded us that, throughout American history, Presidents have flexibly interpreted the Constitution to expand their powers during perceived times of need.
As early as the beginning of the 19th Century, Thomas Jefferson, turning his back on everything he stood for, neatly bypassed the Constitution in order to make the Louisiana Purchase — and we’re all very grateful to him for having done so. Lincoln, of course, is famous for having suspended habeas corpus during the Civil War which, while not directly violative of the letter of the Constitution, certainly violated its spirit. (Not to mention the fact that many questioned the Constitutionality of the entire war itself.) Uber-Democrat Franklin D. Roosevelt is also remembered for having imprisoned thousands of Japanese Americans merely because they were of Japanese ancestry. And what many don’t know is that Woodrow Wilson, a progressive Democrat (and a segregationist, of course), pretty much blew the Constitution to pieces during WWI, stamping out manifestly free speech that he characterized as seditious (not to mention the number of socialists arrested during his administration for their party affiliation, despite the fact that it was a legal American party).
The bottom line is that, during times of stress, Presidents get the power. Or, as the little mnemonic in my notes says, Peril = President; Calm = Congress. That’s a good way to remember that external stressors will affect the ebb and flow of power between the President and Congress.
The above was an observable historical fact. Where a little polite tension developed amongst the panelists was whether captured terrorists should be given the full panoply of civil rights or whether they should be limited to military tribunals. This is obviously not a new issue. As you may recall, John Kerry caught a lot of flack for yearning for the days when we could just read those terrorists their rights, toss them in jail, give them a free attorney, make sure they have a speedy trial, etc.
One of the panelists, who is, I gather, some sort of Constitutional Law wunderkind, expressed that same Kerry-esque yearning that terrorists should be accorded full civil rights. He never came out and said it, but he seemed to feel that the Geneva Convention was just a starting point for the rights we ought to extend to captured foot soldiers fighting with, or on the same side as, Al Qaeda, and implied that civilian criminal trials are the way to go.
As for me, Hamdan notwithstanding, I don’t believe that America should have the obligation to extend to Al Qaeda terrorists (and fellow travelers) rights under the Geneva Code. Terrorists don’t fight for a signatory nation, nor do they obey the Geneva conventions in the way they fight.
Having said that, though, I believe that we, as Americans, maintain our own moral integrity if we treat prisoners (whether ordinary prisoners or prisoners of war) with certain minimal standards of decency — and the Geneva Convention provides just such a standard. After all, without a floor, when a society goes to war one may find that POWs are treated with increasing degrees of cruelty. And by that, although Abu Ghraib was gross (and, I hope, aberrant), I’m not talking about “mere” sexual humiliation and fear. I’m talking about the kind of treatment the Japanese meted out to Marines or that the Germans did to Americans. War, already horrible, would become bestial.
The big question is, if I’m willing to admit that our society needs to extend rights to prisoners, not for their benefit, but for ours, why am I not willing to extend to them all of the rights available under the Constitution? The most obvious reason, of course, is that enemy combatants, by definition, are not citizens engaged in statutory criminal acts. The latter, no matter how bad their behavior, are the ones the Constitution is intended to protect, to ensure that our government doesn’t use it’s massive weight to crush its own people. Fighters caught on foreign battlefields, or having entered this country to engage in violent acts, cannot be the intended beneficiaries of that special protection.
There’s actually an easier answer, though, than trying to figure out who is entitled to what protections. Instead, look at the goals behind the criminal justice system and the military prisoner of war system. America’s criminal justice system is actually intended to give each citizen the maximum opportunity to fight the government and return to the streets. That’s why we have Miranda warnings, bail, the right to a speedy trial, the right to counsel, evidentiary exclusion, the rules of evidence, etc. Everything is meant to give a citizen a fighting chance against the government. Sentencing for all but the most heinous crimes is limited and specific. And, of course, there is our generous appeals process, which ensures those convicted repeated bites at the apple. Lastly, after people have served their time, they are then, at least in theory, invited to rejoin society as fully functioning members.
All of the above is the exact opposite of our goals with a captured fighter. It’s entirely irrelevant whether he was a lowly foot soldier, a crack sniper, or a bomb maker, just as it’s irrelevant whether he actually succeeded in killing or wounding Americans as he carried out those tasks. When considering prisoners of war, what really matters is that, for the duration of the war, they cannot return to the battlefield. After all, even if a POW’s IEDs didn’t work before, they may work in the future. Civil rights cannot apply when your sole purpose is to decrease your enemy’s strength. And before you get all bent out of shape about how it is so not fair to imprison someone indefinitely just because he had the misfortune to be caught fighting for his beliefs, keep in mind that this is vastly more civilized than the old system of dealing with captured enemy combatants — summary execution.
I do realize that we still have to grapple with the implications of what is shaping up to be a long, ideologically driven war. Again, with an eye to America’s own mental and moral health, we cannot keep enemy combatants imprisoned for what may turn out to be decades. This is especially true if, as some say, many of these prisoners have nothing to do with the war, but were turned in by neighbors for reward money or to resolve long-standing feuds. Certainly, as a result of Hamdan and related cases, the military is required to investigate such claims, and that process alone may be sufficient. I don’t pretend to have an answer to that question. I just know that the criminal justice system is not the answer.
As you’ve probably noticed, the above discussion has to do with lowly fighters, and hasn’t touched upon the big fish caught after intensive, and high-level, operations. With these people, we don’t just want to keep them out of the fight for the duration, we actively want them punished. Why then do we not accord them civil rights in a civilian justice court? One phrase holds the answer: National Security. If we assume that these big guys were caught because of a successful intelligence operation, a trial in a regular criminal court would mean exposing that operation to public view. Even holding a secret trial would be pointless, because no one in the courtroom would have the type of security clearance necessary to hear the case without the government then being forced to disband the specific intelligence program. That would be an enormous price to pay to convict even a criminal mastermind. The military justice system, however, which does accord rights to prisoners, does come with a built-in national security component, and that makes it a very good choice for dealing with such a trial.
The fact is, when a country is at war, rights contract. They have to, because a completely free society is too porous to protect itself against massed opposing forces. The best you can do is to strike a balancing act intended to maximize national security and military imperatives (such as getting enemy troops off the battlefield), while simultaneously maintaining as many Constitutional rights as possible, and those in their strongest available form. It’s a tough act, and has always resulted in mistakes and civil rights errors. Fortunately, America has shown itself to be resilient, and every assault on civil rights throughout the history of our nation has not only been remedied, but has usually seen the civil rights emerge in expanded form.