Our legal system is remarkably flexible. No law, or set of laws, can foresee the future; the best the law can do is adapt to changing circumstances.
How that adaptation occurs can vary; sometimes it’s through legislation and/or acts of Congress, sometimes by executive order, sometimes through judicial decisions that overrule previous ones, and far less often through Constitutional amendment. Often it’s by a combination of approaches in which the courts are called on to interpret and rule on the acts of the other branches of government.
In the post-9/11 world one thing has been clear: the system that was in place at the time (including the much-criticized firewall) failed to function adequately to prevent the attack. Since then the efforts of the Bush administration—whether you agree or disagree with them—have focused on correcting that situation to make it more likely that we can prevent subsequent attacks.
But our criminal justice system quite clearly never envisioned anything that has the scope that modern-day terrorists, combined with modern-day Western technology—including the possibility of nuclear weapons—could wreak. Islamic totalitarian terrorists are not ordinary killers, although they sometimes appear to resemble them. But their goals include a stated desire to bring down our government and/or our economy, as well as our way of life.
Some think they are overreaching, that they have no way to accomplish their aims and that it is ludicrous to think so. Others think failing to take them seriously represents a lack of imagination on our part, and that we are far more vulnerable than we care to think.
Terrorists—even Islamic totalitarian terrorists—are not a unitary bunch. Some are state-sponsored, which would put them somewhat in the league of traditional spies. More often they are connected with trans-national worldwide organizations such as al Qaeda that have dedicated themselves (at least in their own minds) to our destruction. Terrorists can also be freelance individuals, but those fitting that description don’t seem to be very numerous, and their acts so far (except for the anomalous and non-Islamic Timothy McVeigh) seem to be of much smaller scope. The latter group of individuals, however, are the ones who most clearly fall under the aegis of our traditional criminal justice system.
The truth is that present-day Islamic jihadi terrorists occupy a gray and exceedingly non-traditional area because of their ambitions and reach, and the Bush administration’s actions in setting up Guantanamo and dealing with people such as al-Marri though the military system (he was interned in military custody in South Carolina) are attempts to tackle this new situation in a way that would protect us from future large-scale attacks that could undermine our very way of life. Because of the scope and reach of modern terrorism, the administration feels it necessary to suspend some of the protections of the traditional criminal justice system in dealing with suspected perpetrators and/or planners.
This approach is inherently problematic, and concerns about it are well-placed. The hallmark of our country is the supreme importance we place on guaranteeing individual liberties. It is often remarked that our criminal justice system is one that accepts the fact that every now and then a guilty person will go free because of restrictions placed on that system in order to preserve the rights of all.
That said, though, the military has always had its own justice system running parallel to the civilian one, with rules of evidence that don’t have quite the same built-in protections. In addition, times of war have often brought suspension of those protections—anyone who reads the criticisms of Lincoln’s actions during the Civil War knows that he suspended the writ of habeas corpus and held civilians (and in fact citizens, not just aliens like al-Marri) in military custody.
Habeas corpus is mentioned specifically in the Constitution, in Article I, Section 9 which says, “The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.” So, “public safety” has always been recognized as a reason to relax the rules.
“Rebellion” and “invasion,” like all other terms, require legal interpretation. Lincoln certainly felt the Civil War qualified, and he justified his acts with the following statement, among others:
Are all the laws but one to go unexecuted, and the government itself go to pieces, lest that one be violated?
The idea, both in the Constitution and Lincoln’s words and deeds, is that some threats are so great that we must be willing to give up a small portion of our rights temporarily in order to make sure they can endure more permanently when the threat is past. The problem now, as then, is whether the present threat is great enough to justify such an approach. The answer, of course, is an ambiguous one, often decided by one’s political leanings. The truth is that no one can say.
The writ of habeas corpus was violated again during World War II when thousands of people of what was then called “enemy ancestry” were relocated and detained simply on the basis of their racial and ethnic background (see this for a relatively concise but thorough discussion of that controversial episode in American history). The subject matter is too complex for a full discussion here, but there are many misconceptions about what actually happened. One not very well-known fact is that citizens of German and Italian ancestry were affected as well as Japanese, and that American citizens of Japanese descent were allowed to live outside of camps as long as they relocated away from designated areas on the West Coast that were considered especially vulnerable. In addition—and most relevant to the al-Marri case—a special prison camp at Tule Lake was set up for non-citizen Japanese resident aliens who were suspected of treason or special dangerousness.
We have now come to believe that these measures were overreactions, especially the relocation of citizens and non-citizens alike (based on racial classifications only) who were not even suspected of any specific criminal or treasonous intent.
World War II was a declared war, and a conventional one at that. The same was true of the Civil War. Is the current situation analogous? Can we be at war with a shadowy organization such as al Qaeda? Al Qaeda certainly thinks so; it declared war on us back during the Clinton administration, and although most people hardly noticed that fact at the time, al Qaeda most definitely made good later on their pledge. But have we declared war on it in return—and, in fact, is it possible to declare war on such an entity?
The Constitution is terse on the topic of war; it grants Congress the power to declare it without defining it. One imagines the founders thought a definition of what entities war could be declared against to be so self-evident as to be unnecessary, but they could hardly have foreseen the confusing situation we face today. The Constitution also mentions that Congress has the power “to define and punish piracies and felonies committed on the high seas, and offences against the law of nations; and the power to make rules concerning captures on land and water.” It was under these powers that Congress enacted the Military Commissions Act, for example (an act which doesn’t apply to the al-Marri case, since he was seized while legally residing in this country). And although terrorism is somewhat similar to piracy, it really is not exactly the same.
The majority of the judges in al-Marri felt that the executive branch had overreached here, and remanded al-Marri to the ordinary criminal justice system. But is that system adequate to deal with the potential al-Marris of the world, and worse? And, if not, what system would be better able to do so?
(Part II coming tomorrow.)
