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One of the most difficult dilemmas in the war on terrorism is and has been from the start to define the designation “enemy combatant” and determine to whom it should apply.
In this sixth year since the Sept. 11, 2001 attack on America, the courts have wrestled with the question several times, leaving no one satisfied, least of all those charged with preventing a recurrence of that fateful event.
The latest of these judicial exercises came the other day when a three-judge panel of the U.S. Court of Appeals for the Fourth Circuit decided that a legal resident of the United States could not be held in detention by the military and denied the due process so afforded citizens under the Constitution. The court said in a 2 to 1 decision that Ali al-Marri, a citizen of Qatar, must be charged, held as a material witness, deported or set free. It was a ruling that challenged President Bush’s authority not only constitutionally but also under a congressional resolution approving the use of military force.
Al-Marri was arrested originally in December, 2001 on charges of credit card fraud and lying to federal agents. Before his trial in 2003, he was declared an enemy combatant and transferred to a military brig. The government claimed that he was a “sleeper” agent of Osama bin Laden who had been trained at an al Qaeda camp and even had volunteered for a suicide mission. In his first 16 months of incarceration, he was held incommunicado.
Not unlike the case of Jose Padilla, an American citizen arrested on U.S. soil on allegations that he was plotting to set off a dirty bomb here and held for years without being charged, the cases raise serious questions both about American values and constitutionally guaranteed habeas corpus. On the other hand, there are legitimate concerns about what is needed to head off a repeat of the worst outside attack on the United States in history.
How do we head off the elusive plots of men like al-Marri and even Padilla — who, after years of solitary confinement, was brought to trial under charges completely unrelated to the original allegations — if we are held to the difficult standards of proof required in a civilian court? Must we let them go to return to the battlefield, which in this case, is our own country?
It is difficult to argue with those who contend that there can be no presidential suspension of basic rights for Americans or, in this case, a legal resident, that the price we pay for our own freedom always is the protection of due process even for those who would do us harm. In other words, that is the chance we take to preserve the viability of the document under which all of us have benefited. That principle is the very foundation of our democracy.
There is validity in the argument that the only way of defending ourselves against worldwide accusations that we speak out of both sides of our mouths, preaching freedom and the rule of law while at the same time denying all that to alleged domestic enemies, to separate those caught overseas or here illegally from our own citizens and those, like al-Marri, granted legal status. The solution, many argue, is for Congress to redefine “enemy combatant” to include cases where U.S. citizens or permanent residents who are a legitimate threat to the nation can be held indefinitely without charges. But even that might not meet the constitutional test set out by the Fourth Circuit panel.
Meanwhile, the Justice Department has appealed the al-Marri ruling to the full court and the matter ultimately may reach the Supreme Court.
Most of us should be uncomfortable with the enemy combatant definition as the government now interprets it. Threats to national security always have been an excuse for an abuse of presidential power. Still there is legitimate worry about this faceless enemy and how to stop more horrific acts against us.
Hopefully, there can be a definitive, once and for all resolution to this thorniest of dilemmas. One can only pray that in the end we haven’t so perverted our values and beliefs that we have accomplished the terrorists’ goals for them, not the least of which is to prove us a nation of hypocrites whose cherished system is in reality a sham full of inequities.