Enemy Combatants and the Constitution

I confess to having a problem with the concept that persons captured in situations in which it is definite or likely that they were trying to kill or harm Americans, military or otherwise, and who are not American citizens, be treated with kid gloves.

I do not believe that the Geneva Conventions should cover Muslim terrorists, given the Conventions’ description citing “High Contracting Parties,” the repeated use of terms implying that parties covered by the Conventions are members of a national military or national paramilitary force and the clear implication that military or paramilitary forces do, indeed, represent a national government.

Clearly, the murderous cowards who prey on innocent civilian men, women and children – to whom the term “terrorist” applies – do not fall within the parameters of the Geneva Conventions. Further, their allegiance is not to a nation, but to a culture that transcends national boundaries, and that is intent upon destroying any way of life that is different from Allah’s dictates for Muslims.

I believe that coercing information from these vermin is not a violation of their rights, since these creature are not American citizens, and do not have the same rights as American citizens.

I think that much of what has been criticized at Abu Ghraib as torture is, in fact, not torture. When an individual is genuinely believed to have information that might be important in protecting the safety and lives of American citizens and military personnel, rules requiring that that individual be treated “politely,” and that the individual cannot be made uncomfortable in an attempt to gain information to prevent harm to American citizens are stupid in the extreme.

Frankly, I don’t care what happens to them, even though it has been shown that actual torture – rather than the treatment of the captives there – generally doesn’t produce positive results. Besides, nearly everything that happened at Abu Ghraib pales in comparison to beheading prisoners, of which the murderous Muslims are so fond.

However, I also confess to having been persuaded by Judge Andrew Napolitano, in his book, Constitutional Chaos: When the Government Breaks Its Own Laws, to rethink my position. He makes a compelling case that the U.S. Constitution requires that everyone detained by our government for any and all reasons must be treated humanely and receive justice swiftly.

At issue in most of the cases cited is the right of habeas corpus, which is defined as: “One of a variety of writs that may be issued to bring a party before a court or judge, having as its function the release of the party from unlawful restraint [my emphasis].”

Judge Napolitano charges the government with not only improperly incarcerating and holding both immigrants and citizens, sometimes keeping them incarcerated without formal charges for months or years, but with intimidating their lawyers, as well.

“The government’s latest effort at making it a crime for an attorney to represent zealously a client accused of terrorist acts is completely inconsistent with the constitutional principles contained in the First and Sixth Amendments, which guarantee the right of free speech and right to counsel, respectively," he said. "It is a direct challenge to the Constitution that the government has gone as far as prosecuting lawyers for doing their jobs.”

He goes on to say that “[a]s children we were taught that tyranny can’t happen here. Doesn’t the Constitution guarantee rights to the worst among us, and didn’t the president and his lawyers in the Justice Department swear an oath to uphold the Constitution? Not when it comes to national defense, the government has argued. But doesn’t national defense mean defense of our values as well as our real estate? Not if the defendants are dangerous, according to this Justice Department. But isn’t everyone who has been arrested – even a jaywalker – entitled to counsel? If the government doesn’t file charges, it absurdly argues, the defendant doesn’t need a lawyer.”

He states a little later that "[t]he American system of justice is the best and most equitable in the world because of its fidelity to the rule of law in which an independent judiciary enforces everyone’s due process rights. But when prosecutors seek victory through illegal threats – rather than through fair negotiation or through the slow methodical presentation of evidence to a jury – they corrupt the cause they seek to advance.”

If, in the attempt to save ourselves from the terrorists, we abandon the procedures and protections the U.S. Constitution requires for all persons suspected of breaking our laws, we save the terrorists the trouble of ripping our nation apart by doing it for them.