Thursday, February 09, 2006

Civil Rights for Terrorists?

Back in December 2003, Howard Dean -- then leading contender for the Democratic presidential nomination -- shocked people when he said he believes Osama bin Laden, were he to be captured, deserves a fair trial. Conservative columnist Robert Novak called it the most damaging "of all Dean's bizarre statements."

Fast-forward to today and the controversy over the President's warrantless wiretapping program. "If Al Qaeda is calling you," he says frequently to applause, "we want to know why." Civil libertarians have expressed concerns about the program.

Meanwhile, over at the alternative-reality blog GayPatriot, they're laughing themselves silly over a puerile satire of the Gingrich era, called "Democrats' Contract With Al Qaeda." The bottom line, according to them? "Show me how Democrats want to defend Americans, not terrorists’ civil rights."

Do terrorists have civil rights? Should they?

Once again, the right-wing activists who make up the core of the GOP's base have shown their lack of understanding and contempt for the Constitution, despite their repeated insistence that they believe in an "originalist" interpretation. The three-branch government, with its system of checks and balances, is the essential mechanism for controlling corruption. Basic protections, such as due process and habeas corpus, help prevent the government from using imprisonment as a method of silencing the dissent necessary for a healthy democratic society. Today's conservatives act like a "fair trial" is a privilege to be extended only to Enron executives.

The reason that Osama bin Laden deserves a fair trial has nothing to do with him. It's because you deserve a fair trial.

Let me put it this way. What do you personally know about Osama bin Laden and his guilt in relation to the events of September 11 or any other terrorist attacks Al Qaeda is believed to be responsible for? Chances are, you know only what you've heard from the government and the media. The reason most Americans believe that bin Laden is guilty is because they've been told he is.

Some would argue that the severity of his crimes -- or because he is a non-citizen conducting a stateless, non-traditional war -- merit forfeiture of his civil rights. But we're not really talking about being kind to Osama, we're talking about being fair to the average citizen. If bin Laden were captured, he needs to be brought to trial and have the evidence against him presented before a court, and, yes, our founding fathers would also argue that he has the right to defend himself.

This is not, as some conservatives might have you think, some kind of legal loophole designed to let terrorists get away thanks to clever lawyers. It's not being soft on terror. It's being faithful to the principles on which America was founded.

If Osama bin Laden could be apprehended and, say, summarily executed without due process -- meaning, without a trial where evidence of his guilt was presented publicly and a verdict reached in accordance with the law, then pretty much anyone could be apprehended and sentenced without court review.

Let's say for example that you were apprehended on American soil by federal authorities. A representative from the government -- say, the attorney general or someone from the Department of Homeland Security -- held a press conference announcing that you had ties to Al Qaeda and had been arrested because you were planning a terrorist strike on a major American city. Would President Bush and the GOP insist on due process?

Actually, we don't have to speculate because unfortunately that's not a hypothetical scenario. The answer is no, President Bush favors imprisoning Americans without a trial.

In May 2002, Jose Padilla was arrested at Chicago's O'Hare Airport and taken to a military jail in South Carolina, where he was held without access to counsel and was never charged with a crime. Then-Attorney General Ashcroft held a press conference and announced that Padilla was an Al Qaeda associate who had been planning to detonate a radioactive dirty bomb in an American city. President Bush labeled Padilla an "enemy combatant" and argued that due process did not apply.

After more than three years of court-wrangling, civil rights attorneys won for Padilla the right to a civilian trial, forcing the federal government to outline charges against him in court. The charges that were filed included no mention of a dirty bomb plot, because the government had no evidence. None. Zero. Zilch.

Jose Padilla is no saint, but President Bush was content to lock him up and throw away the key based on charges for which he had no evidence. If we don't insist on civil rights for suspected terrorists, we can no longer guarantee them for ourselves.


Jeff said...

I still don't understand why you read that caricature of a conservative blog. Maybe because it provides you with such good material? It just gets me riled up to read that site, and I have better things to do with my time.

little-cicero said...

To Jeff:
Better things to do with your time?
Like reading little cicero?
(Can't pass up a plug opportunity like that!)

epicurist said...

"without a trial where evidence of his guilt was presented publicly and a verdict reached in accordance with the law, then pretty much anyone could be apprehended and sentenced without court review."

It astounds me still how some believe that constitutional laws and civil rights should be bestowed only on those whom the Government thinks is worthy. Constitutional rights are NOT open for re-interpretation. One may not like the fact that any Terrorist is given the right to a fair trial, but we are speaking of protecting everyone's right to a fair trial, and therefore cannot pick and choose who receives them or not.

History should be a reminder of what not to do. Not so long ago African Americans were denied the right to vote and it was not until The Voting Rights Act of 1965, which helped break down the obstacles that American Blacks had faced. I am not American, nor do I know a whole heck of a lot about Amercian History, but if memory serves me, was not the 24th Ammendment passed to ensure polls and tests were not used to determine which Blacks could vote. Again, choosing who deserved the right to vote was determined Constitutionally unjust. How is this different? This brings back a very important quote I once heard, "It is better to let a guilty man free, or to imprison an innocent man?"

Andy said...

I would disagree that Constitutional rights are not up for re-interpretation; I would refine that by saying there is a Constitutional process in place for re-evaluation of rights, generally involving the courts or congressional legislation. George Bush has bypassed that process.

And your last sentence is precisely the dilemma we are facing. The consequences for letting an Osama bin Laden go free could be dire indeed.

little-cicero said...

I would argue that a nationless terrorist does forfeit civil protection. The responsibility of government is to "establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare and secure the blessings of liberty," Thus, if a man is without a government, who is to secure the blessings of his liberty. In other words, if Saudi Arabia or Afghanistan disown a terrorist and proclaim that the terrorist is not a protected citizen, he is not defended. At the same time, the nation offended by said terrorist has the responsibility to provide for the common defense, so must punish the terrorist.

We know that a criminal's right to liberty is abriged by the government's responsibility, so it is easy to make the case that a terrorist's rights would be abridged in said manner. To answer your question, terrorists have basic human rights which can be abridged for the sake of security, but no civil rights if they are disowned by a given civil body.

Andy said...

I think you're missing a couple of major points.

1) Jose Padilla was not a "stateless" terrorist, he's an American citizen, as is Yaser Esam Hamdi, who successfully petitioned against the federal government's labeling of him as an "enemy combattant" in the recent case Hamdi v. Rumsfeld, the famous one where O'Connor wrote, "A state of war is not a blank check for the President."

2) There is a legal presumption of innocence until guilt is proven; that's the way the American court system has always worked. Yes, criminals have their liberty abridged by virtue of the government's responsibility to protect its citizens, but a big part of that responsibility includes not falsely imprisoning said citizens; hence, all citizens have the right to due process.

3) The most effective way to promote the democratic rule of law abroad is to demonstrate its fairness. (You're probably going to go off on some schpiel about how there's a difference between "justice" and "fairness," but really...they're synonymous. I think you think "fairness" is "kindness.") The legal system should treat the worst offenders with the same process and extend the same protections as minor criminals and those found to be innocent. "We hold these truths to be self-evident, that all men are created equal, and endowed by their Creator with certain inalienable rights, AMONG THESE [i.e., not limited to!] are life, liberty and the pursuit of happiness." The fathers didn't intend for the American vision to apply only to American citizens, they hoped, in the words of a famous Republican president, that we would become a shining city on a hill. Saying this person deserves civil protections and this person doesn't will not serve America's mission. Period.

Andy said...

For further reading on why the Bush Administration's disregard of civil liberties actually undermines the war on terror, I recommend the ever-brilliant Dahlia Lithwick's commentary on the Moussaoui trial.

Money quotes: Did the government learn nothing about overbilling a prisoner's capture from the embarrassment over Yaser Esam Hamdi's detention? An American citizen, nabbed in Afghanistan, Hamdi was reportedly so dangerous that he warranted locking up for almost three years without charges or due process. When the Supreme Court asked only that Hamdi see the inside of a courtroom, the administration sent this lethal enemy combatant home to Saudi Arabia without dessert.

Did the government learn nothing about distorting the evidence from the embarrassment over Jose Padilla's detention? When John Ashcroft boasted, in 2002, that "we have captured a known terrorist who was exploring a plan to build and explode a radiological dispersion device, or 'dirty bomb,' in the United States," did he consider whether he could prove it? When the DOJ downgraded that boast to crow, in 2004, that Padilla had plotted to blow up apartment buildings, that claim should have been provable. But today Padilla is in criminal court in Miami, facing fuzzy charges of conspiracy and of providing material support to terrorists. Was the administration overstating its case back then, or is it letting a criminal mastermind skate now?

Did the government learn nothing about overzealous prosecution from the debris of the Detroit "sleeper cell" trial, where two members of an alleged terror cell were convicted, until it became known that the state's prosecutorial misconduct was so rampant that the judge was forced to throw out the convictions? In trying, once again, to super-size their terror convictions, prosecutors evidently pressed an overheated theory long after they knew it was wrong.

little-cicero said...

I agree that Padilla is not a stateless terrorist, but was not really referring to him in my argument (which I should have mentioned)

My only argument is that, if there is no legal obstruction to going after a terrorist, then we ought to go after that terrorist. Look for every loophole, jump through every hoop, and if Constitutional, get rid of the hoops. The founding fathers actually made much greater infringements on the right of civilians for the sake of security as Presidents, so it is not fair to say that they would have given rights to terrorist suspects. Also, they knew no such evil as that which we face today (you might say Barbary Pirates, who I do not believe were taken as POWs or tried in civilian courts)

Andy said...

My only argument is that, if there is no legal obstruction to going after a terrorist, then we ought to go after that terrorist. Ummm...duh? You won't find anyone to disagree with that. (Except maybe the terrorist.)

Someone got into the GOP talking points here. This is not about "legal obstructions" to catching terrorists. I'm not talking about "catching" them, I'm talking about how we treat them once they're in custody.

If they're on American soil, Bush apparently likes to charge them with fantastic, Bruckheimer-esque plots and throw away the key. If they're caught on friendly soil, he likes to fly them to places like Syria and Saudi Arabia, where their "interrogators" are apparely more qualified than our own at extracting useless information. If they're in Iraq or Afghanistan, oh no, we don't torture them, no sir. Doesn't happen. We freedom-tickle them. (Thanks, Jon Stewart.)

The founding fathers actually made much greater infringements on the right of civilians for the sake of security If George Washington jumped off a cliff, would that make it okay? Again, you've been listening to too much Ken Mehlman. Heads up, Gonzales, George Washington did NOT use electronic surveillance on the British -- with or without a warrant.

My simple argument is that until we are willing to hold ourselves to the highest ethical and democratic standards, we will continue to lose this war.

Trickish Knave said...

And here is wh at happens when we give terrorist 'due process':

Cole Escapees

Another farce on our judicial system can be seen at Saddam's trial. I have been wondering this for decades: If more than 5 people see someone commit a heinous crime or if the crime is captured on video why can't we just off the asshole then and there? (rhetorical question, please keep the amateur law statements to a minimum)

Andy said...

Okay ummm...pardon me, but I fail to see what a jailbreak in YEMEN has to do with respecting civil rights. The fact that YEMEN can't keep its prisoners in prison is no reason for us to go dispensing with the Constitution.

And how is Saddam's trial, exactly, a farce of OUR judicial system? Iraq is not stable enough for this trial yet. Plus, he's an international criminal, he belongs at The Hague anyway. Again, the fact that Iraq's burgeoning democratic judicial system isn't ready yet to try a criminal with that kind of public support has no bearing at all on whether we respect the civil rights of AMERICAN CITIZENS who are FALSELY ACCUSED of terrorist plots.

Anonymous said...

I completely agree with you that they deserve a fair trial. However, it becomes a grey area when you try to establish the structure of due process and a fair trial for a non-citizen. This does not excuse the Bush administration from establishing a fair and equitable process.

On the other hand I would argue that the Founding Fathers would not have given the terrorist fair treatment. The magnitude of September 11th would have been bewildering to our esteemed founders. I think if you would have asked them hypothetically they would agree with you philosophically. However, practically they would have doled out swift and sure punishment to all terrorist via firing squad or something of the like. They would have viewed it as doing Gods' work and smiting people who had participated in such an atrocity

little-cicero said...

Sorry if I was irrelevant there, I just got a bit excited.

Andy said...

I would agree that the Founders likely would have been more in favor of speedy execution than we are today. (Something about those evolving standards of decency that Scalia doesn't believe in.) I would disagree about believing they were "doing God's work." That kind of thinking would have been rather anomalous to Enlightenment philosophers.

Trickish Knave said...

but I fail to see what a jailbreak in YEMEN has to do with respecting civil rights.

Instead of putting a bullet in their heads the terrorists were given their 'civil rights' for far too long. Consequently, they escaped and are free to attack USN vessels. The cloud of bullshit around the prisonbreak makes me wonder if the Yemenese guards weren't in on it.

And how is Saddam's trial, exactly, a farce of OUR judicial system?

Perhaps my analogy was a stretch but they are adopting a form of our Judicial system.

After some in depth reading and research about Jose Padilla I would have to concede that there may not be enough to hold this asshole for being a terrorist. He has done some suspicious stuff and is a tax burden on the American citizen but I suppose the government needs to shit or get off the pot.

I guess I could really give a shit about some pud that is 'fasly accused' of terrorism when he has been such a dick hole. But then that is my cross to bare...

Trickish Knave said...

Here is an interesting link that supports my "this guy is a dickhole" statement.

Andy said...

TK, you're confusing punishment with due process.

The punishment should be absolutely as severe as we deem appropriate; what I am talking about is ensuring that we do not punish innocent people. You're arguing a wholly separate issue.