In an important legal test of national security vs. individuals’ rights, the Supreme Court today will hear the cases of Jose Padilla and Yaser Esam Hamdi, two U.S. citizens detained as “enemy combatants.” Their cases are the most current part of this heated national debate, as civil liberties advocates question the president’s authority to detain enemy combatants indefinitely without access to a lawyer or the scheduling of a trial date. Last week, the Supreme Court heard a case concerning non-U.S. citizens being held as enemy combatants in Guantanamo Bay.
Mr. Padilla and Mr. Hamdi have been detained indefinitely in a South Carolina military brig without access to a lawyer or a judge. Mr. Padilla was arrested at Chicago’s O’Hare International Airport, suspected of conspiring with al Qaeda to set off a “dirty bomb.” Mr. Hamdi was captured by the Northern Alliance in Afghanistan.
The most controversial aspect of Mr. Hamdi’s and Mr. Padilla’s situation is their citizenship. However, U.S. law plainly states citizenship can be revoked if a person serves in the armed forces of a foreign state. Although al Qaeda is not a nation-state with geographical borders, it possesses the financial resources and the fighting manpower of such a state. Mr. Padilla’s case proves more troubling, for he was arrested on U.S. soil. The administration argues that to release him would be a threat to national security.
The New York Times argued in a Monday editorial that both Mr. Hamdi and Mr. Padilla should receive due-process rights in a civilian court. But the United States is engaged in a legally cognizant time of armed conflict, and as such the laws of war apply. The Constitution awards the president both the power and the responsibility to protect this country. The taking of prisoners of war, and their detention until combat has ceased, is both necessary and legal during times of armed conflict. Defense Secretary Donald Rumsfeld on Feb. 13 announced the practical safeguards that the administration has put into place to safeguard individuals’ rights and to meet Geneva treaty requirements.
Viet Dinh, the former head of the Justice Department’s Office of Legal Policy, told the Los Angeles Times that the president has the “unquestioned authority” to detain people during wartime and that he should have flexibility to select the forum in which the accused can confront such charges. However, it may be useful to enact a law that gives greater clarity and consistency to the procedural process for detaining and prosecuting enemy combatants.
The president and the Justice Department have done what is necessary to protect U.S. citizens, and we applaud their diligence. But as we face new challenges, Congress should consider enacting such procedural legislation.
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