“Ask for a lawyer immediately upon your arrest,” reads the little informational card the ACLU hands out to citizens. Titled “What To Do If You’re Stopped By The Police,” it’s a list of basic constitutional rights, with advice about how to behave in a manner consistent with expectations of minimal due process. “Try to find witnesses,” it continues. “Ask if you are under arrest. If you are, you have a right to know why.”
That little card is sounding awfully quaint these days. After all, it refers to a standard of proof that assumes innocence until guilt is proven. It places the burden of proof on the prosecution, where it has always been. It assumes the option of a trial. But in a January 8 decision, the Court of Appeals for the Fourth Circuit ruled that Yasser Hamdi, an American citizen captured in Afghanistan, may be held indefinitely, without charge and without access to a lawyer. Judge Harvie Wilkinson wrote that “the courts are ill-positioned to police the military’s distinction between those in the arena of combat who should be detained and those who should not.”
While the court’s ruling explicitly applies to “enemy combatants” captured in the “theater of war,” it also limits the scope of judicial inquiry as to what those terms might mean. In other words, not only can Hamdi have no lawyer, he cannot challenge his designation as enemy soldier, or even whether the war was or is still going on. Such determinations, said the court, are solely the province of the President and his military advisers.
The Fourth Circuit’s decision comes on the heels of a case brought by Jose Padilla, another American citizen, captured not on the battlefield but in O’Hare airport. Padilla has been in a military brig for more than eight months without any formal charge (although the Justice Department has publicized its conviction that he was planning to detonate a so-called dirty bomb). Padilla challenged his designation as an enemy combatant, and early last December US District Judge Michael Mukasey held that “Padilla’s need to consult a lawyer is obvious.” That ruling, however, which was widely interpreted as one protecting a modicum of Padilla’s due process, still leaves him without the right to have a lawyer present during interrogation.
Ultimately, the courts will have to chart some more consistent course among the cases now cropping up since September 11. After all, John Walker Lindh was also an American citizen captured on a battlefield in Afghanistan, but he was tried in US courts. His case was attended by a near-universal public sense that for purposes of his situation, the war ended when Hamid Karzai took power. What is at least as worrisome as the inconsistency is that the Bush Administration has repeatedly defended its power to detain enemy combatants not simply in the war against Al Qaeda or Afghanistan or Iraq or North Korea but “in this war on terrorism.” As I write, prosecutors are discussing whether to charge sniper John Lee Malvo under an antiterrorism statute. Does this mean that Malvo’s quite terrifying but wholly domestic crimes have the potential to turn suburban Washington into a theater of war?
The fact is the United States hasn’t officially declared “war” against anyone. The Administration’s commitment to end terror is a good thing, but terror is neither a three-dimensional enemy nor a clearly defined legal concept. It’s more like a poison leaching from a deep well. The cleanup could take decades. Identifying its source and composition is likely to be a nightmare that may never be satisfactorily or completely resolved. “Terror” defies scientific description. Surely we ought to have some more refined legal reference point than that.
In Padilla’s case, moreover, we’re dealing with someone who was allegedly planning to act but who had not yet acted. Without evidence sufficient to file charges–and if there is such, no one has yet produced it–the government has moved well into the area of prior restraint. A policy of detention based on John Ashcroft’s or Donald Rumsfeld’s secret “convictions” about guilt rather than conviction by some accountable procedure like a trial–even if not entirely public–is a dangerous course.
As I have worried in these pages before, this strategy is the logical if monstrous offspring of suspect profiling, which, when unsustained by evidence, is nothing less than the substitution of a presumption of guilt for the presumption of innocence. Without even the legal counsel historically guaranteed in military tribunals, we as citizens are licensing a shadow intelligence force that can hold people until they literally rot in jail–or prove themselves innocent without the “coaching” of lawyers.
Maybe this sort of thing works on the battlefield. It certainly resembles the logic of guerrilla warfare: Surround the enemy and don’t let even the women and children escape because you can’t trust anyone. But it is immensely careless in its sweep, terribly overbroad in its indictments. It is premised on a cost-benefit analysis that rationalizes the sacrifice of a few to save the many. But when practiced outside situations of extreme emergency, it’s also the kind of behavior that squanders the good will of whole populations. It’s why African-Americans who would love good policing in their neighborhoods frequently end up as scared of the police as of the neighborhood thugs. You can’t shortcut justice. I think it’s why many South Koreans are suddenly saying that they are more afraid of the United States than they are of North Korea.
Indeed, a recent Human Rights Watch report says that the global campaign against terrorism is weakening because of the Bush Administration’s own human rights abuses as well as its willingness to overlook the abuses of allies, including Russia, Pakistan, Israel and Malaysia. The message that “human rights are dispensable in the name of fighting terrorism” is, according to the report, actually fueling anti-American sentiment. I have said all this before, but I am prepared to use this space to say it again and again and again: This foolish path risks more than it gains; it can lead to nothing but yet more sadness, yet more paradox.