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WSJ editors come out swinging in defense of indefinite detention of US citizens

Edvard Munch, "The Scream"

If you are a regular reader of this blog you are probably someone the Wall Street Journal editorial page counts as member of the "anti-antiterror left" or the "tea party right," aka "rigid adherents" to the "libertarian approach to government." (We like to think of ourselves as people who respect the rule of law and not the rule of men, and therefore support the WSJ's right to be completely wrong about many, many things, including what and who we are. Free speech!)

In a screaming editorial entitled "The Tea Party Goes to War: A left-right attempt to treat terror detainees like common criminals," the Journal takes aim at those among us who think that habeas corpus, fair trials and civilian courts are important enough to keep around when people (allegedly) do nasty things we don't like, even if we decide to call those people Terrorists or "enemy combatants." 

Specifically, the editorial takes aim at an amendment to the next defense authorization bill (yes, the now notorious NDAA) that would ensure "speedy trials" for US citizens charged with terrorism offenses. If you are thinking "Well, it's completely reasonable to abide by the constitution's requirement that people be presented to a court and charged with a crime instead of killed absent due process or thrown in a gulag, particularly because this 'War on Terror' is so amorphous as to be nearly meaningless," you're probably an ACLU member or some other flavor of "rigid adherent" to constitutional norms. This kind of thinking is "naive," writes the WSJ — the Sixth Amendment notwithstanding.

But Senators Rand Paul, Mike Lee, Dianne Feinstein and Max Baucus are worse than naive, the WSJ editors appear to be implying. Indeed, their proposed amendment to the NDAA threatens our security by affirming the constitutional rights of US citizens merely accused of being engaged in some kind of Terrorist business.

Denying US citizens their rights to constitutional due process during the Glorious and Infinite War on Terror is "sound security" policy, they write, and constitutional to boot: 

U.S. courts have ruled more than once that the citizenship of a member of a foreign army is irrelevant during wartime. Anyone who takes up arms against the U.S., fails to wear a uniform and targets civilians is an unlawful enemy combatant regardless of citizenship.

This question last reached the Supreme Court in the 2004 case of Louisiana-born al Qaeda terrorist Yasser Hamdi. The Court said that Hamdi deserved a habeas corpus hearing to challenge his detention, but it reasonably declined to equate his predicament with that of a domestic criminal.

What an interesting interpretation! Here's how the ACLU described the same SCOTUS decision back in 2004:

The [Bush] administration's efforts to evade judicial review were […] rejected in Hamdi v. Rumsfeld (03-6696). Unlike the foreign nationals detained at Guantánamo Bay, Yaser Hamdi is an American citizen who was captured on the battlefield in Afghanistan. He has been held in various American military brigs for more than two years without charges and trial and, until very recently, without any opportunity to consult his attorney. The government contended that it could continue to hold Hamdi in this condition indefinitely so long as it presented a federal court with "some evidence" to justify its decision to designate Hamdi as an "enemy combatant." In the government's view, Hamdi was not entitled to present his side of the story or to question the government's case.
The Supreme Court […] disagreed. Four justices were prepared to order Hamdi's immediate release on the ground that Congress had not authorized it. That view did not command a majority. But eight members of the Court agreed that Hamdi had been deprived of his due process rights because he has never been given a meaningful opportunity to be heard.
The Hamdi opinion also strongly suggests that the Court has learned from its past mistakes and is no longer willing to defer to executive claims of military necessity in every instance, as it did when it upheld the internment of more than 100,000 Japanese-Americans during World War II. As Justice O'Connor wrote for the plurality in Hamdi: "[A] state of war is not a blank check for the President when it comes to the rights of the Nation's citizens."

Different views of Hamdi, then. 

Moving on from the disagreeable, the WSJ editorial takes a turn towards the laughable and utterly other-worldly. Get ready for this next sentence; it's a whopper:

With its strict rules on surveillance, the U.S. is already something of a safe haven for people who wish to kill innocents.


Which "strict rules on surveillance" are the editors referencing here? The military's vacuum-style warrantless wiretapping, which received a Congressional stamp of approval in a sweeping 2008 bill that also provided immunity to the telecoms that handed over our private data en masse? The utter elimination of a criminal predicate requirement for federal investigations (of any kind — not simply terrorism cases)? Warrantless cell phone tracking and email reading?

Perhaps the WSJ editors don't read their own paper. Its "What They Know" surveillance series could teach them a thing or two about how very embarrassed they should be to publicly utter such blatantly ridiculous words.

But like Vanessa Williams, they save the best for last. The pièce de résistance of the indefinite-detention-for-all editorial is truly something. After a sentence that people could be forgiven for reading as a mildly worded accusation that the Senators who proposed the due process amendment are guilty of treason, they ice the cake with this:

If the Senators have evidence that the terrorist detainee process has been abused to the detriment of American citizens, perhaps they could provide some examples. On the available evidence, the safeguards in place have protected both U.S. liberties and the public from terror attack.

It's a good thing that the people who wrote the Bill of Rights didn't take that view. Rule of law and not of men exists precisely because phrases like "to the detriment of American citizens" mean wildly different things to different people. Many of us do indeed feel unsafe living under a government that asserts it has the right to throw us in a military brig without charge or trial, indefinitely, based on secret "evidence" — even if we aren't the ones who wake up from a forced drug-induced nap in a cold and desolate solitary cell.

The last paragraph is also alarming precisely because the obsessive state secrecy and deference to the authority of the executive branch that the WSJ appears to revere so deeply make it nearly impossible to assess whether or not "the terrorist detainee process has been abused to the detriment" of anyone, American citizens or not. 

Specific criticisms and disagreements with the editors aside, they should relax a bit because the question they are debating is somewhat moot. After all, the US doesn't capture "enemy combatants" anymore, thanks in part to people like Senator Dianne Feinstein. We kill them, also absent due process. How could they argue with that?

UPDATE: Please read this great critique of the Feinstein-Lee amendment, which points out that it could actually make things worse by simply exempting US citizens from indefinite detention and thereby making due processless detention of non-citizens more likely to remain in effect. 

UPDATE: Here's the national ACLU's take on the amendment. 

UPDATE: The amendment passed, 67-29. 

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