John Whitehead's Commentary

"I tell you, freedom and human rights in America are doomed. The U.S. government will lead the American people in--and the West in general--into an unbearable hell and a choking life." -- Osama bin Laden, October 21, 2001

On June 29, 2006, the U.S. Supreme Court handed down its much-anticipated ruling in Hamdan v. Rumsfeld. Declaring illegal the formation of military tribunals (established by the Bush Administration under its claim to wartime powers) to try detainees at Guantanamo Bay, the Court issued an unmistakable message: the President had overstepped his authority.

While the case dealt with whether Salim Ahmed Hamdan could legally be denied fundamental rights, such as the right to a jury trial and the right to confront his accusers, at its heart were several larger constitutional questions dealing with the separation of powers and individual liberties.

Various commentators have tried to suggest that the case is about whether accused criminals deserve to be granted such rights. But this is not really about them. It is about us. As Senator John McCain declared from the floor of the U.S. Senate in October 2005:

We are Americans, and we hold ourselves to humane standards of treatment of people, no matter how evil or terrible they may be. To do otherwise undermines our security. It also undermines our greatness as a nation. We are not any other country. We stand for something more in the world--a moral mission, one of freedom and democracy and human rights at home and abroad. We are better than these terrorists, and we will win. The enemy we fight has no respect for human life or human rights. They do not deserve our sympathy. But this is not about who they are. This is about who we are. These are the values that distinguish us from our enemies.

The enemy in question in the case of Hamdan v. Rumsfeld is Salim Ahmed Hamdan, Osama bin Laden's former driver. Captured in Afghanistan in 2001 by militia forces, Hamdan was sent to Guantanamo Bay to be tried by a military tribunal for aiding and abetting al-Qaeda. Neither he nor his civilian lawyer was permitted to have access to witnesses or information that would ultimately be used against him.

When challenged in court, the military tribunal was found to have violated essential principles of justice. However, that decision was subsequently reversed by a three-judge panel for the U.S. Court of Appeals for the District of Columbia, which reinstated the use of the tribunals. The Supreme Court's decision to hear the case became the focal point for a debate over the President's wartime powers and the rule of law.

In handing down its landmark 5-3 ruling, the Court found that trials where detainees are tried without attorneys and where they cannot be present and question those accusing them violated not only U.S. law but international treaties like the Geneva Conventions, to which the U.S. is a signatory.

Although the Supreme Court's nearly 200-page ruling is technical and esoteric, the premise at the heart of the ruling is basic: America's fundamental commitment to justice and fairness is necessary to everyone, even alleged terrorists, in a time of war.

No one suggests, and the Supreme Court did not declare, that Hamdan should go free. In fact, he almost certainly will not taste freedom again. The Supreme Court simply proclaimed that as a nation dedicated to the rule of law, we must provide the accused with an attorney, the right to examine evidence and the right to confront one's accusers.

As Americans, we dedicate our entire legal system to fairness. The Bill of Rights demands that those accused of crimes--no matter how horrific--receive basic rights to challenge the government's attempt to restrict their God-given freedoms. The Fifth Amendment, for instance, provides that we shall not be deprived of life, liberty or property without due process of law. And the Sixth Amendment guarantees those accused of a crime the right to a speedy and public trial, to be judged by an impartial jury, to be informed of the nature and cause of the accusation, to confront the witnesses against them and to have the assistance of an attorney for their defense.

The fact that Hamdan is not an American citizen does not mean that we should refuse to grant him the benefit of the rule of law found among all civilized societies, including our own. In fact, the idea that all people--not just Americans--should be afforded fundamental rights has been the cornerstone of American philosophy since the birth of our great nation. In the Declaration of Independence, Thomas Jefferson exclaimed that it is a self-evident truth that "all men"--even those accused of heinous crimes--"are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness."

The notion of terror is derived from the Latin phrase "terrere," which means "to cause to tremble." The terrorists want us to tremble, to fear and be willing to sacrifice our freedoms for the vapor we call freedom. But if we sacrifice our commitment to freedom, liberty and fundamental fairness, all that we hold dear will be lost. As Americans, we supposedly believe in the ideas articulated in our founding documents, such as the Declaration of Independence, that all people are created equal and deserve to be treated fairly.

We must never forget the lessons that history teaches. Indeed, we must remember that Rome did not collapse because her armies were weakened. Rome collapsed because her people forgot what being a Roman meant. Lest we forget that we are Americans, we must celebrate freedom--not just for ourselves, but freedom for all--and embrace the understanding that without a commitment to true freedom, terrorism will prevail and the bin Ladens of the world will be proven right.

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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