John Whitehead's Commentary
Enemy Combatant Labels: An End-Run Around the Constitution?
In the annals of American history, the events and outrages leading up to the Revolutionary War have become legendary. Yet of the many grievances leveled at King George III, the worst involved his use of the military to control and tyrannize the colonists, rendering the military independent of and superior to the civil power.
With the recent "war on terrorism," we are once again witnessing the struggle between military tyranny and civil law--and we are perhaps coming full circle in our quest for unalienable rights. Under the guise of protecting national security, a legal controversy is unfolding that pits unquestioning deference to military authority against the constitutional rights of American citizens.
At the center of this struggle is 21-year-old Yaser Esam Hamdi, an American-born Taliban fighter. Government officials, who have labeled Hamdi an "enemy combatant," have denied him the traditional legal rights afforded U.S. citizens. The logic, of course, is that an enemy combatant has fewer legal rights than an ordinary civilian defendant in a criminal case.
Yet the term "enemy combatant," as defined by the Supreme Court in a 1942 case involving the government's authority to utilize military commissions, has become an all-too-convenient way for government officials to circumvent the Constitution.
In Hamdi's case, he is being held indefinitely, has been denied unmonitored access to an attorney, and is quite possibly being interrogated aggressively by U.S. authorities. Despite all this, he has yet to be formally charged with a crime. The government has justified its labeling of Hamdi as a combatant and its subsequent denial of his constitutional rights as a necessary precaution in the war on terrorism.
But not everyone is kowtowing to this abridgment of our laws. U.S. District Judge Robert Doumar courageously challenged the government's treatment of Hamdi and its labeling of him as an enemy combatant. Judge Doumar ruled that Hamdi's lawyers should be given private, unmonitored access to him--a right guaranteed under the Sixth Amendment to the Constitution.
However, the Justice Department hasn't given up, and its lawyers have continued to argue that Judge Doumar should defer to the military's assertion that Hamdi is an enemy combatant.
This is where the debate over one man's due process rights turns into a worrisome and much larger struggle over the increasing encroachment of the military into civilian affairs. "Deference to the military," a concept that holds little sway with civil libertarians and legal scholars, has become a catch phrase among government officials and the judiciary over the past 50 years. Perhaps one of the worst instances of deference involved the Supreme Court's justification of the internment of more than 100,000 Japanese-Americans during World War II. And even though politicians and justices alike have condemned that particular instance of injustice, courts across the nation--including the Supreme Court--continue to grant almost blanket discretion to the military.
In times of peace, such deference has created difficulties for enlisted men and women who have been denied their basic freedoms by the military establishment. In times of war, this deference blurs the lines between what is lawful and what is necessary to protect national security. But unbridled deference to the military is dangerous and can easily lead to a state of affairs--eerily similar to our present time--in which the military is a law unto itself.
We must never forget that the Framers of our Constitution specifically limited the military and placed it under civilian control. In fact, they devoted an entire amendment--the third--to limiting the role of the military in civilian life. Indeed, the Framers were more suspicious of military government than of government generally. This fear was common at the time the Constitution was drafted, as the people had fled from tyranny, both civil and military. The Declaration of Independence explicitly criticized King George for granting deference to the military and allowing it to be independent from and superior to the civil power.
As the great patriot and statesman Samuel Adams, quoting John Locke, said, "Where law ends, tyranny begins." Adams continued,
[M]ilitary government and civil, are so different from each other, if not opposite, that they cannot long subsist together. Soldiers are not govern'd properly by the laws of their country, but by a law made for them only: This may in time make them look upon themselves as a body of men different from the rest of the people; and as they and they only have the sword in their hands, they may sooner or later begin to look upon themselves as the lords and not the servants of the people.
It seems that we may be repeating history as we struggle to fight the threat of tyranny. But we certainly do not want to completely trample the constitutional rights of American citizens, whether they're Taliban fighters or not, even for the sake of security. For once we allow the military to define away our rights, then we must see that we will be left with no rights at all. And that is too great a price for any democracy to bear.
Constitutional attorney and author John W. Whitehead is founder and president of The Rutherford Institute. He can be contacted at johnw@rutherford.org.
With the recent "war on terrorism," we are once again witnessing the struggle between military tyranny and civil law--and we are perhaps coming full circle in our quest for unalienable rights. Under the guise of protecting national security, a legal controversy is unfolding that pits unquestioning deference to military authority against the constitutional rights of American citizens.
At the center of this struggle is 21-year-old Yaser Esam Hamdi, an American-born Taliban fighter. Government officials, who have labeled Hamdi an "enemy combatant," have denied him the traditional legal rights afforded U.S. citizens. The logic, of course, is that an enemy combatant has fewer legal rights than an ordinary civilian defendant in a criminal case.
Yet the term "enemy combatant," as defined by the Supreme Court in a 1942 case involving the government's authority to utilize military commissions, has become an all-too-convenient way for government officials to circumvent the Constitution.
In Hamdi's case, he is being held indefinitely, has been denied unmonitored access to an attorney, and is quite possibly being interrogated aggressively by U.S. authorities. Despite all this, he has yet to be formally charged with a crime. The government has justified its labeling of Hamdi as a combatant and its subsequent denial of his constitutional rights as a necessary precaution in the war on terrorism.
But not everyone is kowtowing to this abridgment of our laws. U.S. District Judge Robert Doumar courageously challenged the government's treatment of Hamdi and its labeling of him as an enemy combatant. Judge Doumar ruled that Hamdi's lawyers should be given private, unmonitored access to him--a right guaranteed under the Sixth Amendment to the Constitution.
However, the Justice Department hasn't given up, and its lawyers have continued to argue that Judge Doumar should defer to the military's assertion that Hamdi is an enemy combatant.
This is where the debate over one man's due process rights turns into a worrisome and much larger struggle over the increasing encroachment of the military into civilian affairs. "Deference to the military," a concept that holds little sway with civil libertarians and legal scholars, has become a catch phrase among government officials and the judiciary over the past 50 years. Perhaps one of the worst instances of deference involved the Supreme Court's justification of the internment of more than 100,000 Japanese-Americans during World War II. And even though politicians and justices alike have condemned that particular instance of injustice, courts across the nation--including the Supreme Court--continue to grant almost blanket discretion to the military.
In times of peace, such deference has created difficulties for enlisted men and women who have been denied their basic freedoms by the military establishment. In times of war, this deference blurs the lines between what is lawful and what is necessary to protect national security. But unbridled deference to the military is dangerous and can easily lead to a state of affairs--eerily similar to our present time--in which the military is a law unto itself.
We must never forget that the Framers of our Constitution specifically limited the military and placed it under civilian control. In fact, they devoted an entire amendment--the third--to limiting the role of the military in civilian life. Indeed, the Framers were more suspicious of military government than of government generally. This fear was common at the time the Constitution was drafted, as the people had fled from tyranny, both civil and military. The Declaration of Independence explicitly criticized King George for granting deference to the military and allowing it to be independent from and superior to the civil power.
As the great patriot and statesman Samuel Adams, quoting John Locke, said, "Where law ends, tyranny begins." Adams continued,
[M]ilitary government and civil, are so different from each other, if not opposite, that they cannot long subsist together. Soldiers are not govern'd properly by the laws of their country, but by a law made for them only: This may in time make them look upon themselves as a body of men different from the rest of the people; and as they and they only have the sword in their hands, they may sooner or later begin to look upon themselves as the lords and not the servants of the people.
It seems that we may be repeating history as we struggle to fight the threat of tyranny. But we certainly do not want to completely trample the constitutional rights of American citizens, whether they're Taliban fighters or not, even for the sake of security. For once we allow the military to define away our rights, then we must see that we will be left with no rights at all. And that is too great a price for any democracy to bear.
Constitutional attorney and author John W. Whitehead is founder and president of The Rutherford Institute. He can be contacted at johnw@rutherford.org.
ABOUT JOHN W. WHITEHEAD
Constitutional attorney and author John W. Whitehead is founder and president of The Rutherford Institute. His most recent books are the best-selling Battlefield America: The War on the American People, the award-winning A Government of Wolves: The Emerging American Police State, and a debut dystopian fiction novel, The Erik Blair Diaries. Whitehead can be contacted at staff@rutherford.org. Nisha Whitehead is the Executive Director of The Rutherford Institute. Information about The Rutherford Institute is available at www.rutherford.org.
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