What gives? Four men: two citizens and two non‐citizens. Is it possible that constitutional rights — like habeas corpus, which requires the government to justify continued detentions, and the Sixth Amendment, which assures a speedy and public jury trial with assistance of counsel — can be denied to citizens yet extended to non‐citizens? That’s what the Bush administration would have us believe. Citizen Padilla’s treatment is perfectly legitimate, insists Attorney General John Ashcroft, because Padilla is an “enemy combatant” and there is “clear Supreme Court precedent” to handle those persons differently, even if they are citizens.
Ashcroft’s so‐called clear precedent is a 1942 Supreme Court case, Ex Parte Quirin, which dealt with Nazi saboteurs, at least one of whom was a U.S. citizen. “Enemy combatants,” said the Court, are either lawful — for example, the regular army of a belligerent country — or unlawful — for example, terrorists. When lawful combatants are captured, they are POWs. As POWs, they cannot be tried (except for war crimes), they must be repatriated after hostilities are over, and they only have to provide their name, rank, and serial number if interrogated. Clearly, that’s not what the Justice Department has in mind for Padilla.
Unlawful combatants are different. When unlawful combatants are captured, they can be tried by a military tribunal. That’s what happened to the Nazi saboteurs in Quirin. But Padilla has not been charged much less tried. Indeed, the president’s executive order of November 2001 excludes U.S. citizens from the purview of military tribunals. If the president were to modify his order, the Quirin decision might provide legal authority for the military to try Padilla. But the decision provides no legal authority for detaining a citizen without an attorney solely for purposes of aggressive interrogation.
Moreover, the Constitution does not distinguish between the protections extended to ordinary citizens on one hand and unlawful‐combatant citizens on the other. Nor does the Constitution distinguish between the crimes covered by the Fifth and Sixth Amendments and the terrorist acts Padilla is suspected of planning. Still, the Quirin Court justified those distinctions — noting that Congress had formally declared war and thereby invoked articles of war that expressly authorized the trial of unlawful combatants by military tribunal. Today, the situation is very different. We’ve had virtually no input from Congress: no declaration of war, no authorization of tribunals, and no suspension of habeas corpus.
Yet those functions are explicitly assigned to Congress by Article I of the Constitution. It is Congress, not the executive branch, which has the power “To declare War” and “To constitute Tribunals inferior to the supreme Court.” Only Congress can suspend the “Privilege of the Writ of Habeas Corpus … when in Cases of Rebellion or Invasion the public Safety may require it.” Congress has not spoken — except by enacting the USA Patriot Act. And there, we do find authorization for detention of persons suspected of terrorism — but only non‐citizens and only for seven days, after which they must be released unless criminal charges are filed or deportation proceedings commenced.
Without either constitutional or statutory authority, the administration has decided that it will set the rules, prosecute infractions, determine guilt or innocence, then review the results of its own actions. That’s too much unchecked power in the hands of the executive branch — making a mockery of the doctrine of separation of powers that has been a cornerstone of our Constitution for two‐and‐a‐quarter centuries. Even persons convinced that President Bush cherishes civil liberties and understands that the Constitution is not mere scrap paper, must be unsettled by the prospect that an unknown and less honorable successor could exploit some of the dangerous precedents that the Bush administration has put in place.
In a nutshell, we cannot permit the executive branch to declare unilaterally that a U.S. citizen may be characterized as an enemy combatant, whisked away, detained indefinitely without charges, denied legal counsel, and prevented from arguing to a judge that he is wholly innocent.
That does not mean the Justice Department must set people free to unleash weapons of mass destruction. But it does mean, at a minimum, that Congress must get involved, exercising its responsibility to enact a new legal regimen for citizen‐detainees in time of national emergency. That regimen must respect citizens’ rights under the Constitution, including the right to judicial review of executive branch decisions. Constitutional rights are not absolute. But they do establish a strong presumption of liberty, which can be overridden only if government demonstrates, first, that its restrictions are essential and, second, that the goals it seeks to accomplish cannot be accomplished in a less invasive manner. When the executive, legislative, and judicial branches agree on the framework, the potential for abuse is significantly diminished. When only the executive has acted, the foundation of a free society can too easily erode.