L. Neil Smith's
THE LIBERTARIAN ENTERPRISE
Number 278, July 4, 2004
"It would be worse than dying."
Hamdi v. Rumsfeld
Special to TLE
July 1st, 2004
The press is reporting it as a loss for the White House.
And to be sure, Bush and Rumsfeld didn't get all they wanted when the Supreme Court handed down its Hamdi v. Rumsfeld decision.
George W. Bush's lawyers argued in court that
To translate, America is at waran undeclared warbut war nonetheless against an amorphous but nonetheless concrete enemy. This war will last until all such nondescript terrorist forces or sympathizers are eradicated from earth and whatever inter-gallactic societies we no doubt will have founded by then. The president and his minions must have the power to arrest and detain anyone they desire for as long as the crisis which brought about this temporary state of perpetual war continues. If the executive branch is limited in any way from arbitrarily arresting and permanently detaining American citizens without charges or access to counsel, the terrorists, who hate our freedom, will have won.
The Supreme Court, that great bulwark against intrusions against our constitutionally protected liberties, did not agree with the Bush team. Instead they handed down a decision, which held "that a citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government's factual assertions before a neutral decision maker." Further, hearsay evidence may be relied on, the neutral decision maker may employ a rebuttable presumption which forces the detainee to prove his innocencerather than be presumed innocent until proven guilty, and that neutral decision maker could be a "properly constructed" military tribunal.
To translate, an American citizen, we'll call him Aleksandr Solzhenitsyn, may be captured by the military, declared an enemy combatant, a term for which there is still no definition. Alex can be housed in a military prison like the military concentration camp at Guantanomo Bay Cuba, where prisoners are known to have been tortured mentally and physically. To be sure that the military doesn't abuse this power of random arrest and permanent detention, a military court will hold a hearing where a military intelligence official can declare "we have a cohesive collection of concrete allegations which strongly suggest that Alex is an enemy combatant who hates our freedoms and respect for individual liberty." Alex, aided by a militarily appointed lawyer, will then have to prove that he is not an enemy combatant, a term for which there is no definition. If Alex fails to meet this minimal standard, he can be detained without being charged until the forces of civilization are victorious over the forces of evil who hate our freedoms. Being temporarily detained for the duration of a permanent war is a small sacrifice for an innocent person to make if it means ultimate victory for the forces of freedom.
Civil libertarians worry that this new power may unreasonably jeopardize certain freedoms traditionally protected by the U.S. constitution. But, this power is not new. Many national leaders have exercised such unchecked powers. Stalin, Hitler, Mao Tze Tung, Lenin, Saddam Hussein, and now George W. Bush had the tools of random arrest and perpetual detention at their fingertips. Sure previous leaders may have abused this power, but this administration brought honor back to the White House. It is un-American for any citizen to suggest that this honorable President or any member of his honest and forthright regime would abuse this necessary power of random arrest and permanent detention.
Besides that, it's downright dangerous to your personal security.