Here we go again. The decision to hold Jose Padilla, AKA Abdullah al Muhajir, the so-called "dirty bomber," as an "enemy combatant" has reignited the bonfire of hysteria over military tribunals and civil rights.
"The government's position is unacceptable," declared The New York Times on Wednesday. "Our Constitution guarantees that those suspected of crimes must be informed of the charges against them, be able to confront their accusers, consult with a lawyer and have a speedy and open trial. But that means very little if the government can revoke all those rights merely by labeling someone a combatant."
The Washington Post editorialized the next day, "If Mr. Padilla is, as Mr. Bush said, `a bad guy,' then it's a relief to have him behind bars. That said, we had thought that it took more than the determination by the president that someone was a `threat to the country' before an American could simply disappear and be locked up without charge or trial or prospect of release."
Meanwhile, the cable news networks run round-the-clock debates on the question of whether Padilla's civil rights have been violated -as if the world would end if the answer were yes. Well the answer, of course, is yes; his civil rights are being violated. But that's not the relevant issue. The question should be whether or not the government is justified in violating an al-Qaida operative's rights.
This is more than a semantic argument. The American Civil Liberties Union and the media repeatedly insist anything that "violates" your civil rights is automatically and obviously unacceptable. But if you take a deep breath and think about it, this is balderdash.
Remember, your rights are "unalienable," according to the Declaration of Independence, which means the government cannot take them away from you. Ever. The sound-bite cliché that criminals "forfeit" their rights frames the issue improperly. Criminals don't "give up" their rights. The State determines that their rights can be ignored.
Forget criminals. Every single day the government decides when and where it is appropriate to infringe on the rights of law-abiding citizens. We're searched at airports, court houses and high schools without probable cause all the time. We can't shout "fire" in movie theaters and we can't hold rallies inside high-security installations.
Think of the military draft. Mandatory induction into the Army mangles, folds, spindles and mutilates almost every constitutional right you have, from free association to free speech, from the right to privacy to the right to life (the government can ask you to die for your country) -and yet it is perfectly legal because we recognize that we cannot hold the survival of the nation hostage to individual rights.
Similarly, the summary detention of Padilla is legal, too. The issue of whether American citizens could be treated as prisoners of war was settled six decades ago in Ex Parte Quirin. The Supreme Court ruled that sneaking into the United States with the intent to destroy "life or property" is an offense "against the law of war subject to trial and punishment by military tribunals."
The case dealt with eight German agents who infiltrated the United States intending to blow up factories and disrupt transportation. Two of the agents were American citizens. Six infiltrators were executed, including one of the Americans. In response, the court ruled that being an American citizen "does not relieve" you from the obligations of the rules of war. "Citizens who associate themselves with the military arm of the enemy government, and with its aid, guidance and direction enter this country bent on hostile acts, are enemy belligerents within the meaning of the Hague Convention and the law of war," the court concluded.
In short, The Washington Post's ignorance notwithstanding, during wartime the president, as commander-in-chief, can declare someone a "threat to the country" and lock him up without trial. If that scares you, get over it.
So, again, the issue isn't "can" Padilla's rights be violated, but should they be violated. I ask two questions to come to my conclusion. What does Padilla deserve? And, what should Americans expect their government to do?
As for what Padilla deserves, the short answer is nothing. Al-Qaida rejects the Geneva Convention and the rules of war because its aim is mass murder for mass-murder's sake. Its operatives are all essentially plain-clothes spies and saboteurs (who can be executed according to the Geneva convention, by the way).
Those who say Padilla should get a civilian trial are essentially saying that if you reject the rules of civilized nations, like those inscribed in the Geneva Convention, you therefore deserve to be treated better, not worse, than those rules require.
As for what we should expect from our government, well, I expect it to make defending the United States from further attacks its highest priority. If that means not letting the entire country be held hostage to Padilla's rights, so be it.