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Enemy Combatants and the Constitution
June 21, 2002

By James L. Hirsen, J.D., Ph.D.
contributor to

It seems that some terrorists have housed themselves within our cities, within our schools, within our churches, within our backyards. This has created a dilemma that our system has not really had to face before; that is, how do we handle domestic terror suspects?

A recent appeals court filing by the Justice Department in the Yasser Esam Hamdi case argued that enemy combatants do not have the right to a lawyer. They can be held by the government indefinitely and civilian courts have no standing to intervene.

A portion of the filing says the government can call a detainee an "enemy combatant," whether or not the person is captured on the battlefield or here at home.

An indelicate balance now exists between the precepts of the Constitution and victory in the war on terror. When we talk about constitutional protections during wartime, it is important to distinguish three categories of action: crimes, acts of war and illegal acts of war.

For crimes, the accused is entitled to constitutional protection under our system of government.

For acts of war, conventional wars are not waged with regard for civil liberties of the enemy.

For illegal acts of war, methods of terror, including the hijacking of planes, intentional targeting of civilians and murder by human explosives, constitute war crimes of the most heinous kind.

With these three categories in mind, we face a difficult question. If perpetrators of such illicit acts against the United States are captured before their plans have been carried out, what should their fate be?

The Bush administration has attempted to provide an answer by establishing military tribunals and by indefinitely detaining material witnesses and illegal combatants.

Those who hold potentially life-saving information need to be questioned aggressively. And, of course, those in charge of questioning need to have some leeway.

But jailing someone without having to answer to anyone is not in keeping with the American ideal of limited governmental power. Specific cases serve to highlight the inconsistencies.

  • Johnny Walker Lindh, who allegedly fought for the Taliban, is being prosecuted in the criminal justice system. He's an American citizen, which got him out of a potential military tribunal.
  • Yasser Esam Hamdi is another American citizen. He is a native of Baton Rouge, La. The 22-year-old, who is being held by the military, has not yet been charged with a crime.
  • Richard Reid, the so-called shoe-bomber, is not a U.S. citizen. He is not being tried in a military tribunal, though. Instead he is being prosecuted in a federal criminal court.
  • Zacharias Moussaoui, another non-citizen, is the so-called 20th hijacker. He has not been placed in a military tribunal either.
  • Jose Padilla, the alleged dirty-nuke conspirator, has been moved out of the criminal justice system and into military custody. Questioning of captured senior al-Qaeda official Abu Zubaydah provided material, which led to the capture of Padilla.
  • Abu Zubair al-Haili, another al-Qaeda leader and high-level operative who is known as "The Bear," has recently been detained. He appears to have extensive knowledge of internal operations of al-Qaeda.

Obviously, if interrogation can lead to disclosure of further plots or to the capture of other suspects, it must take place without delay. Suspects like the ones mentioned cannot be released. Such a move would compromise national security.

On the other hand, holding a citizen without any kind of a time limit or judicial scrutiny is, in effect, sentencing without due process.

Citizens or not, this new kind of war requires a new kind of framework for handling terror suspects. Intelligence sources and methods must be protected while maintaining an acceptable level of due process. The challenge for us is to prevent future terrorist activity and, at the same time, keep the integrity of the Constitution intact.

It is hopeful that the approach that the administration takes from here on in will be consistent. Self-imposed time limits, and an evidentiary process before transferring a suspect to a military proceeding, move us in the right direction.

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James L. Hirsen, J.D., Ph.D.

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