But the twin cases of Yaser Esam Hamdi and especially Abdullah al Muhajir raise important questions. Muhajir (aka Jose Padilla) is the U.S. citizen arrested on U.S. soil in May and held as an enemy combatant for allegedly participating in a plot to release a radioactive dirty bomb. Hamdi is the U.S. citizen (born in Louisiana, raised in Saudi Arabia) who was captured on the battlefields in Afghanistan and is being similarly held. Last week, a three-judge panel of the U.S. Court of Appeals unanimously reversed a lower court ruling that would have granted Hamdi access to a lawyer, saying the court did not adequately "consider what effect petitioner's unmonitored access to counsel might have on the government's ongoing gathering of intelligence."
That the president has the authority in time of war to detain a U.S. citizen who fights with an enemy, at least for the duration of the war, is settled law. The Constitution, as the Supreme Court famously remarked, is not a suicide pact.
So what is my problem? My problem is that a war on terrorism, unlike World War II or other U.S. wars, appears to have no fixed enemy and no clear termination date. Will the war on terrorism ever be over, and if so, how will we know when it is? Is international terrorism the kind of enemy that can be defeated? Is there any point at which we declare victory and go home, and incidentally release prisoners of war either to their own countries or to the U.S. courts?
The power to lock up an American citizen without any charge, any trial, any review or any appeal -- is this really consistent with our values?
Questions like these demand thoughtful answers if the terrorists are not going to succeed in their ultimate objective, which is overthrowing our way of life. Perhaps the most troubling aspect is that the president appears to have the unilateral authority to declare who is and who is not an enemy combatant, again without any oversight and for an indefinite, apparently infinite, period of time.
Even the U.S. Court of Appeals expressed discomfort with this "sweeping proposition -- namely that ... any American citizen alleged to be an enemy combatant could be detained indefinitely without any charges or counsel on the government's say-so."
In his appearance before Congress urging adoption of a new Cabinet-level office of Homeland Security, Attorney General John Ashcroft warned: "There remain sleeper terrorists and their supporters in the United States who have not yet been identified in a way that will allow us to take pre-emptive action against them." He promised to be sensitive to concerns about civil liberties. "For those who say we have to make a choice between liberty and security, I always want to say: Liberty is what we're securing. If we're not securing liberty we've got our eyes on the wrong objective."
Fair enough. I am not especially worried about the use this president will make of these extraordinary powers. But President Bush will not be in office forever. Extraordinary powers over time (if not formally limited) tend to become ordinary ones. The history of liberty is largely the history of the observance of procedural safeguards. The existence of so many bogus civil liberty concerns should not blind us to real ones.
The rule we lay down now, in this emergency, will (absent thoughtful efforts to prevent it) become the rules for the indefinite future, the new American values.