Recently the US Senate passed a defense appropriations act that seems to contain some disturbing curtailments of the right to due process guaranteed under the sixth amendment. Now the US already denies due process to those it classifies as “enemy combatants,” but this new bill would strip that right even from US citizens under certain circumstances – i.e., when they are determined to be, or associate with, enemies of the State. It’s probable that the “associate” phrase would refer to those who have provided, according to US intelligence, “material support” to State enemies. Such individuals could be detained indefinitely in military prisons unless the President extends a waiver that would allow the President to intervene in the detention and perhaps trial process. The troubling aspect of this legislation is of course the question of who does the “determining.” Prima facie it would appear to be some entity within the military/intelligence apparatus, e.g., the State department, the Pentagon, or the CIA. Not only am I not sure that these entities get their intelligence correct all the time, I also imagine they tend to err on the more restrictive side in that doing otherwise might, admittedly, lead to problems.
Before leaping into trenchant lamentations, I think it’s important to note that simply because such legislation is passed doesn’t mean it will be abused. That’s no justification for terrifying legislation, but it’s something to keep in mind. Furthermore, as far as the constitutional legality of the bill is concerned, it seems to me that we’re in that tricky area lying between the sixth amendment and Article three, Section three of the US Constitution. Though the amendment establishes the right to “a public trial,” the article states, “No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.” I’m not sure the article implies that the testimony of the witnesses has to be given in open court, or even in any court at all. There is likely a case history here, so it would behoove someone such as myself to go back and educate themselves in order to see in just what way this article has been applied.
Proponents of this kind of legislation often point out, correctly, that habeas corpus has been suspended before in the US. This is the route Lincoln took during the Civil War. But just because something happened before does not mean it’s okay to do it again. Furthermore, the conditions under which Lincoln acted in no way resemble the conditions the US finds itself in today. And this is an extremely important point made most cogently by the late Christopher Hitchens in his wonderful essay on the 16th President.* Hitchens’ point is even more arresting when you consider that he was one of the most ardent trumpeters of the wars in Afghanistan and Iraq.
If given a blind test and asked which “tyrannical” president had suspended the writ of habeas corpus, closed the most newspapers, arrested the most political rivals, opened and censored the most mail and executed the most American citizens without trial, few students would mention the “Great Emancipator” as the original supremo of big government. But the facts must be faced, as Lincoln faced them. Until the Union itself could be considered safe and whole again, the Constitution—written for the entire Union and, in a sense, representing it—did not really apply, even though the president’s “inherent powers” most certainly did. (I give this as my own interpretation, as well as to distinguish Lincoln’s drastic emergency measures from some later and more recent ones. Hateful and menacing as it is, Islamic terrorism does not immediately threaten us with secession and disunion and the reduction of millions of Americans to involuntary servitude.)
The conditions underlying the Civil War and the current war are very far apart. And the fact that this current war is almost as much of a war on a concept or ideology as it is on any actual distinguishable group of people makes the suspension of basic rights even more disturbing – it’s a lot easier to determine if someone is from a certain country than if someone believes or supports a certain ideology. And although I will admit that US criminal courts have generally applied a strict burden of proof on the government when adjudicating a material support to terrorism case,** I’m not as convinced military courts will require similarly strong prosecutorial evidence.
* In excellent form, Hitchens says that while Lincoln is rightly called “the great emancipator” he could also just as rightly be called “the great constipator.” After all, not only did Lincoln defend the “property rights” of slave owners when he was lawyer, he also, at first swipe, freed only those slaves not within Union-occupied territory. Lincoln is a fine example of the distinction between what is law and what is right. Thankfully, throughout his life, he kept moving closer and closer to what is right.
** See the case of the US v. Sami Omar Al-Hussayen.