It is always amazing how many who do not care one whit about constraints on First Amendment rights implicit in contemporary "campaign finance reform" or limitations on peaceful protests around abortion clinics or who insist on the narrowest possible interpretation of the Second Amendment manage to get their shorts tied up in a rigid knot about the detention of illegal combatants associated with Al Qaeda. There are certainly serious civil rights issues that need to be addressed, but there remains a strange and unsavory sensitivity to rush to the defense of only those who hate America.
Some try to invoke Pastor Martin Niemoller's warning:
"First they came for the Jews
and I did not speak out
because I was not a Jew." ...
``Then they came for me
and there was no one left
to speak out for me.''
However, even this sound observation can be misapplied. There are also times they come for thugs; there are also times they come for murderers; and there are also times when they come for the evil. We should be able to discern the difference and speak up for those who come to protect us.
The Bush Administration is faced with an awkward situation. They are charged with fighting a war that sometimes takes place on American soil against enemy soldiers who do not conveniently, and according to the laws of war, wear uniforms. These "llegal combatants" fall into an unfamiliar legal no man's land. They are not quite prisoners of war since they are not part of a regular armed force. They do not even have formal "ranks and serial numbers" that are normally required of prisoners. At the same time, these people are not mere criminals, but part of an enterprise that is at war with the United States. The sooner the United States makes a formal declaration of war, the easier it will be sort out the legal categories.
Americans feel uncomfortable, and justly so, when arbitrary executive authority is used to detain people, even extremely dangerous people. While there is little evidence that the Bush Administration has abused its authority in this matter, there is always a danger of tyranny when one branch of government can act solely and unilaterally to detain people. In Ex Parte Quirin, decided in 1942, the Supreme Court invoked common law practices to empower the government to try un-uniformed Nazi saboteurs (one of whom was an American citizen) in military tribunals. The court was silent about indefinite detention of similar illegal combatants. Yet, under the Ex Parte Quirin doctrine the government will probably be able to hold indefinitely people like Jose Pedilla who were likely conspiring to engage in terrorist activity. Nonetheless, there is a more appropriate and Constitutionally regular way to hold illegal combatants.
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