Wednesday, June 26, 2002
Citizens, even bad citizens, don't disappear into the gulag in the United States of America. At least they're not supposed to.
Yet, it is happening. Twice that we know of.
The first was Yaser Hamdi, 21, who was captured in Afghanistan and sent to Guantanamo Bay, Cuba. When it turned out he may be an American, he was shipped to a Navy brig in Norfolk, Va., where he has been held incommunicado.
A U.S. magistrate appointed a lawyer for Hamdi. The Justice Department refused to let the lawyer meet with Hamdi. A federal district judge twice ordered that a public defender be given free and private access to Hamdi. The department is appealing that order and seeking to prevent Hamdi from appearing before a judge.
The Bush administration is asserting a right to imprison an American citizen indefinitely, without access to a court or a lawyer, simply by designating the citizen an "enemy combatant," a phrase with a very thin legal history.
It appears in a 1942 Supreme Court of the United States ruling in the case of an American citizen who was apprehended serving with a Nazi submarine crew off the U.S. coast.
The court wrote that "an enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property [would not be] entitled to the status of prisoner of war, but ... [would be] subject to trial and punishment by military tribunals."
Something is missing
But while the United States was attacked Sept. 11, and while the "war on terrorism" has become a household phrase, the nation is not today in a state of declared war. That's more than a technicality.
We are a nation of laws. The president, his attorney general and his military commanders can't simply declare people "enemy combatants" and give them no chance to have legal counsel, to challenge the designation or appear before a judge.
Now comes the second case, that of Jose Padilla, 31, whom the Justice Department accuses of plotting to set off a "dirty bomb." Padilla, a native-born American arrested in Chicago, is also being held incommunicado in a military cell, without a lawyer or the right to see a judge.
And while the Justice Department might have evidence that he has consorted with Al-Qaida operatives, it's a stretch to say he came "secretly through enemy lines" to use the Supreme Court's language. He flew into Chicago.
Padilla, an ex-convict and converted Muslim who also goes by the name of Abdullah al Muhajir, may indeed be a vicious turncoat who was part of a plot to set off a radiological bomb in the United States. Or maybe not.
The way such things are determined in this nation is through court proceedings.
The president, his cabinet and the entire military take an oath to protect the Constitution. There's no escape clause for when the nation gets jittery.