On May 5, the Washington Post published an editorial questioning whether the Obama administration had considered treating the suspected Times Square attempted bomber as an enemy combatant rather than as a federal criminal defendant. I wrote an article entitled “Hijacking the Constitution and the Bill of Rights,” which criticized the Post’s editorial.
In its Sunday edition, the Post published a follow-up editorial on the issue entitled “Questioning Suspected Terrorists,” perhaps hoping to clarify its reasoning. In the process, the Post only dug itself into a deeper hole.
First of all, the Post wants to make it clear that it isn’t countenancing torture.
But isn’t the Post being a bit disingenuous here? After all, the Post’s primary motive in advocating a system in which federal officials can treat a terrorist suspect as an enemy combatant seems to be to secure information from the suspect in a rapid manner.
What are the chances that military officials aren’t going to use all the interrogation tools that they’ve employed for the last 9 years in the war on terrorism, including waterboarding people dozens of times? Isn’t waterboarding excluded from the government’s definition of torture?
Consider the obvious benefits of turning criminal defendants, including Americans, over to the military for torture — correction, “harsh interrogation.” The soldiers can’t be sued. They’re immune. And they’d get off the hook anyway by simply saying they were following orders. The higher-ups will also get off the hook because they’ll have legal opinions from the Justice Department protecting them.
Moreover, they can always redefine torture to include waterboarding, sensory deprivation, isolation, the rack, or whatever. If things get nasty, the military can conduct 10 or 20 investigations into the matter and announce that reforms are taking place. Of course, that’s after they destroy or hide the videotapes of the interrogation sessions.
For full and complete protection, the military could turn the suspects over to the CIA. Everyone knows that no one is going to demand to know the identities of CIA interrogators, even in cases involving death. And even if someone did make such a demand, everyone knows that the CIA wouldn’t comply with it anyway.
Most important, the operative word is “suspect.” Unless an accusation by government is now going to be considered as evidence of guilt, no one really knows whether a person is truly a terrorist until he’s been convicted in a court of law by competent and reliable evidence establishing his guilt beyond a reasonable doubt. Under our system of government, not even a federal grand jury indictment is considered evidence of guilt.
In its follow-up editorial, the Post fails to deal directly with another fundamental issue: How does a system in which government officials have the discretion to treat a suspect as either a criminal defendant or as an enemy combatant comport with any sense of justice? It is precisely that type of discretion that the rule of law is intended to avoid. It’s also what the principle of equal treatment under law is all about.
Moreover, what the Post is implicitly endorsing is the power of the federal government to convert a crime into an act of war, thereby enabling the government to completely circumvent the Bill of Rights with respect to that particular crime.
Consider, for example, the war on drugs. Under the Post’s reasoning, the government could suddenly declare that drug suspects will now be treated as either federal court defendants or as enemy combatants. If a person suspected of illegally possessing marijuana is arrested, he could be delivered to the military as an enemy combatant, where he could be forced under harsh interrogation techniques to disclose where he got the drugs. He could also be prosecuted under the government’s kangaroo military tribunal system. How convenient — no more federal court trials with pesky criminal defense attorneys, meddling federal judges enforcing the Bill of Rights, and recalcitrant juries acquitting people. Just quick “justice” for all those suspected drug-law violators.
In support of its position, the Post cites the case of Nazis saboteurs who were taken captive on American soil in World War II. But that involved a real war, that is, a war between nation-states. The war on terrorism, on the others hand, is nothing more than a figure of speech involving a criminal offense — like the war on drugs, the war on organized crime, the war on the Mafia, and the war on poverty.
The Post also cites the U.S. Supreme Court case of Hamdi v. Rumsfeld. The Post gets it wrong again. Hamdi was held as an enemy combatant because he was taken into custody in a real war, one between two nation-states, Afghanistan (the Taliban) and the United States.
Finally, the Post editorial writers should read the New York Times. On this particular issue, the Times gets it right in its editorial entitled “Fear Itself.”