This past week, the Supreme Court heard two cases that will rank as among the most important in American history regarding the rights of the accused. Hamdi v. Rumsfeld and Rumsfeld v. Padilla deal with issues that are at the very center of our rights as Americans.
Yaser Hamdi and Jose Padilla are both American citizens. Both are accused by the United States government of being active in terrorist organizations. Both have been languishing in United States custody over the past two years. No charges have been filed against them. They have yet to be confronted with any evidence against them in a court of law, nor has the public been able to gain access to this evidence, beyond the unassailable word of government officials. Only recently have they been allowed token access to their lawyers, and this after months of close confinement with no access whatsoever.
Yaser Esam Hamdi was born in New Orleans but raised overseas. He was captured by the Northern Alliance in Afghanistan in 2002, and turned over to American forces as a member of the Taliban. He was transferred to the detention center at Guantanamo Bay, where it was learned he was American. Afterwards he was moved to a military brig on the continental United States. Jose Padilla was born in the United States, and spent some time in jail in Florida. He allegedly traveled to Pakistan and Afghanistan where he received terrorist training. He was arrested at O’Hare airport in Chicago on suspicion of plotting to detonate a radioactive dirty bomb on U.S. soil. He was quickly declared an enemy combatant by President Bush and whisked away to detention in a military brig.
It is disturbing enough that we are detaining citizens from all over the world in Cuba with no indication they will ever be released, but it is downright horrifying that a similar situation now faces two of our own citizens. Guilt or innocence aside, there are a significant amount of amendments to the Constitution that deal with the rights of the accused in this country.
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.
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.
Guilt or innocence aside, these two men have clearly had these rights violated. Indeed, at first they had no representation at all, and there was no intention of allowing their lawyers (once counsel was finally established) to consult with their clients. There has been no Grand Jury. There hasn’t even been an arraignment or bail hearing. These men, isolated in military custody, more than likely have little or no idea what has been happening in the American courts in their name. This is tragic.
The president, when he was given the go-ahead from Congress to wage the war on terror, interpreted Congress’s resolutions and legislations as carte blanche to exercise powers that no president in the history of this country has been given before. The government now has the ability to make its citizens disappear, never to be seen or heard from again, all in the name of fighting a war.
One of the fundamental things that makes this country unique in the world — in fact, the very thing that makes us Americans — are the rights we enjoy. We can go through life reasonably sure that we will never face the type of persecution that was endemic of cultures past, and still persists to this day in some parts of the world. However, the pendulum continues its rapid swing towards that direction.
No one is disputing the need of the administration to be able to carry out its mission against terrorism. The future of the nation as a whole is threatened by the terrorists who have made us one of their primary targets. A war of ideals and morality is being waged, and we must win. But the costs of such a war, the amount of damage we inflict on ourselves, could very well undermine a foundation of Americanism that is centuries old.
It is easy to think of these two men, who appear to have moved away from the ideals of this country, as not deserving of these rights that you and I tend to take for granted. If they are guilty, there will not be much sympathy from either end of the polarized spectrum of American society. But as I wrote earlier, their guilt or innocence is not the issue here. Their guilt or innocence cannot be an issue at all until they go to trial. But that is the problem. All this wrangling in the courts over the past two years, finally leading up to placement on the docket of the Supreme Court, is just to establish whether or not these two men should be given trials. For now, these men exist as nothing more than entities, their plight being used to test the boundaries of presidential power over the citizens of the United States. Quite frankly, these two men are contributing much to the war. Their being in prison is making America examine this war more closely, and making us consider more carefully what we could be giving up by pursuing absolute victory without taking into account the cost to our society in freedom. Unfortunately, the bold truth is that were it not Yaser Hamdi and Jose Padilla being in this situation, it would surely be someone else.
The war must be won, but the tactics now employed against American citizens in the name of victory could easily be maneuvered into areas that have nothing to do with the war. While most people would like to think they have the type of restraint that is necessary when given absolute power over the lives of millions, the truth is in the old adage, “Absolute power corrupts absolutely.” I don’t trust the United States government to use these new powers solely in the protection of America against terrorists. These tactics, once they become the norm for the prosecution of terrorism suspects, can easily shift into everyday life. The fact is, the natural tendency of a person to try and control every aspect of life around them applies to government as well. This is when it becomes dangerous. We now live in a society that is fighting against itself to prevent a descent into a police state. These cases before the Supreme Court are a major battle, and the side of liberty must win.
I do not believe the Court will side with either Hamdi or Padilla in their respective cases. The Court is walking a tightrope that could determine the future of freedom from persecution in this country, but the tendency for most of those involved in this argument is to side with the current administration.
Hamdi’s case appears particularly hopeless. He was captured in Afghanistan. His status as an enemy combatant may very well be justified. As it stands today, he is being held on this fact and also on a two-page memo regarding his activities in Afghanistan. Whether or not he was involved in combat is a matter of dispute, and the evidence is flimsy, yet there appears to be no evidence to dispute his role in the Taliban. Faced with this, I see the Supreme Court as unable to overrule the administration’s stance on Hamdi’s status, or their conduct in detaining and questioning him. It appears as if Hamdi’s counsel will be unable to prove his incarceration should be any different from those of others captured in Afghanistan, American or not (John Lindh appears to have been particularly lucky in this regard).
The Padilla case has an element of the tragic to it. The Department of Defense is challenging a ruling by the Second Circuit Court of Appeals, which had previously ruled in favor of the defendant. However, before the Court was able to render this decision, Padilla was moved to a military facility in the Fourth Circuit, so the validity of the Second Court’s decision has come into question. The Supreme Court may very well rule that the Second Circuit had no jurisdiction when it rendered its ruling, and this may be a valid point. However, I believe this case, with all its implications for basic freedoms in this country, transcends any sort of jurisdictional issue that may or may not be present. It is essential that the court place itself squarely at the forefront of this issue, and rule on whether or not the administration has become dangerously overzealous in its prosecution of American citizens.
For me, the verdicts in both cases are plainly obvious. In order to protect the vast number of peoples in this country from future oppressive tactics by the United States government, the government’s conduct in their detentions must be declared unconstitutional. Hamdi’s and Padilla’s prosecution must exit the shadow world of military brigs and island detention centers, and enter the mainstream courts, with full disclosure of evidence, and the right of the accused to effectively defend themselves.
These cases mark a turning point in American justice, where guilt could be determined solely on the word of those in charge. This is unacceptable. This is not freedom. We will continue to sacrifice many of our rights to fight this war, but a line must be drawn. A line has been drawn, in fact, by the Constitution, and the Bush administration has crossed it. Their mistaken policies, while with the best intentions, have taken a turn towards absolutism. Hundreds of people have been working towards the point it has now reached: the highest court in the land rendering judgment, a verdict of right or wrong, a verdict of power unchecked or upholding the essential value of due process. No institution should hold the power that has been exercised upon these two men. It is up to the Court to reverse this injustice and secure the freedom of 280 million Americans. We already fear what terrorists are capable of. We should not have to fear what our own government is capable of.