The Future is Not Set: Part 3

This is part three of four.  You can read part one here and two here.

Part 3: The “War on Terror”

The events of 9/11 2001 are the catalyst that dramatically reshaped the government’s handling of global terrorism.  Entire books are written about the laws that have been passed and civil liberties that have been restricted.  I couldn’t possibly do it justice (pun intended).  So we’ll take a narrow slice through two parts: Guantanamo and the National Defense Authorization Acts.  We’ll begin our discussion by looking at that great stain on our country in the new millinium, the Guantanamo prison camp.

Guantanamo & Habeas Corpus for non-US citizens

The Guantanamo detainee camp was setup specifically because of its questionable legal geographic position.  Guantanamo detention camp exists where it is precisely because President Bush did not want non-US citizen detainees to be granted habeas corpus relief in our courts and he did not want to ask congress to suspend habeas corpus.

By treaty Cuba maintains sovereignty over the base and as such the executive branch believed detainees held there were beyond the reach of the protections of the US constitution and court system.  The reasoning that the location was beyond the reach of the US constitution was based on the 1950 Johnson v. Eisentrager case.  Here the court decided German prisoners held in a U.S.-administered German prison were not entitled to habeas relief because:

he (a) is an enemy alien; (b) has never been or resided in the United States; (c) was captured outside of our territory and there held in military custody as a prisoner of war; (d) was tried and convicted by a Military Commission sitting outside the United States; (e) for offenses against laws of war committed outside the United States; (f) and is at all times imprisoned outside the United States.”

Initially the Guantanamo base was deemed similarly by the lower courts, but ultimately in 2004 in Rasul v. Bush the Supreme Court ruled detainees were entitled to habeas corpus relief.  The court found:

Petitioners in these cases differ from the Eisentrager detainees in important respects: They are not nationals of countries at war with the United States, and they deny that they have engaged in or plotted acts of aggression against the United States; they have never been afforded access to any tribunal, much less charged with and convicted of wrongdoing; and for more than two years they have been imprisoned in territory over which the United States exercises exclusive jurisdiction and control.”

The court then went on to assert a common-law right to grant the habeas corpus whit anywhere that is “consistent with the historical reach” of the whit:

Later cases confirmed that the reach of the writ depended not on formal notions of territorial sovereignty, but rather on the practical question of “the exact extent and nature of the jurisdiction or dominion exercised in fact by the Crown.””

Key point #9: The Supreme Court has, for now, asserted the power to hear petitions from those detained by our military, and for now the executive hasn’t completely ignored them, although it has fought the judicary every step of the way.

It is important to point out, that just having legal access to the courts does not make Guantanamo a good thing, nor does it mean the executive suddenly co-operative with the judiciary.  The government fights the courts every step of the way.  Detainees are tortured in way our constitution does not permit.  And the military courts are basically a sham with secret evidence.  Don’t forget, fellow US citizens, these are acts our government carries out in our name.  We are responsible for letting our government do this.  Guantanamo is a stain on our country.

To summarize, initially the government felt it not only had the authority to deem individuals enemy combatants and hold them indefinitely without trial, but that it also could keep non-US citizens beyond the reach of civilian courts.  Unlike the time of Lincoln, however, congress didn’t follow through with an explicit suspension of the whit of habeas corpus, and the Supreme Court, for now, has checked this power of the executive in this instance.

How the US government believes it can treat you today

So let’s explore how the US government will treat you in the present age.  Notably the answers to these questions come down to where (primarily) and who (secondarily) you are.

Non US citizens outside of US soil: This is the simplest case.  The executive branch of the US government can declare you an unlawful combatant, outside of the reach of the Geneva conventions, and believes, because of the right to self-defense, it can drop a bomb on you, imprison you indefinitely, torture and execute you.  It will even drop a bomb on you if you are a male of fighting age carrying a weapon, regardless of whether it has any evidence you intend to take up arms against the United States; just wrong place at the wrong time.  This targeted killing need not even be all that precise, with the US government believing that “collateral damage” (read: truly random innocent people) is justified.  What stops the US government from killing you?  Primarily it is where you are physically standing.  Sitting in the Ecuadorian Embassy in London?  You’re pretty safe.  Walking around the villages of Pakistan?  You’re fair game.  It is basically whatever the US government feels they can get away with.  Citizens of the world, be careful what you do, where you are, and what you say and write online.

US citizens outside of US soil: Let’s look at two illustrative cases: John Walker Lindh and Anwar Al-Awlaki.  The “American Taliban” John Walker Lindh was found in a Taliban prison in Afghanistan by Afgan militia forces working with the US.  It was never really clear that Mr. Lindh was fighting against the US, and not just fighting for the Taliban against the Northern Alliance.  The US military and CIA tortured and interrogated him without advising him of his rights as a US citizen.  Ultimately they decided to bring him back to the US for trial by civilian courts.   At the time, many politicians, including Hillary Clinton called him a traitor – tantamount to calling for the death penalty.  Ultimately, a deal was struck where Mr. Lindh avoided the death penalty, but also agreed to drop any charges of abuse by the US government.

Al-Awlaki, a US citizen, was producing online propaganda for Al Qaeda to help find recruits.  A targeted drone strike was used to execute him.  President Obama personally signed off on the killing.  Attorney General Eric Holder went on to outline when the US government believes it can execute you without trial.  Cynically, Holder argued the deliberations by the executive branch of government alone amounted to “due process”.  Once the executive has decided you are an “imminent threat”, which may not actually be all that imminent as the case of Al-Awlaki shows, that is enough to justify killing you.

What is the difference between Lindh and Al-Awlaki?  At least two: (1) Lindh was presented alive to the US military.  Like it or not, people view the impersonal killing of a person through a black and white video stream differently than putting a gun to someone’s head.  Both have the same outcome, but the impersonal nature of drone killing makes it easier to carry out.  Take a look at the two links above and decide if you were the actor in each case, would piloting that drone be psychologically easier than executing the convicted spy?  Not saying it wouldn’t have some effect on you, but the physical distance and impersonal nature of the images matters; (2) Lindh is caucasian and Al-Awlaki is not.  Just as it was easier to violate the civil liberties of those of Japanese ancestry, it is easier for us to kill “the other”.

Key point #10: Outside of territory under US sovereign control, the President can declare you an imminent threat, and without trial have you killed.  It doesn’t matter what citiizenship you hold.

Non-US citizens on US soil: Soon after 9/11 congress passed an Authorization for Use of Military Force (AUMF) 2001.  This authorization permitted the executive to take action against those it deemed terrorists who participated in 9/11 wherever they may be, including on US soil.  This essentially remains the law of the land through the continued enactment of the National Defense Authorization Acts, which expanded the AUMF provision by dropping the requirement that it be solely related to 9/11.  These acts allow for the executive alone to determine that you are a terrorist threat and apply military justice to you, including indefinite detention.  Versions of this bill that did not pass nearly required that military justice be used, but in the end it became an option not a requirement.  President Obama issued a directive on interpreting the act which outlines when a detainee should be tried in civilian courts, and among the list of reasons is if the conduct in question occurred in the United States.  Keep in mind, however, this order can be changed by future administrations.

US citizens on US soil: The National Defense Authorization Act applies to US citizens just as it applies to non-US citizens.  The President has the authority to declare you a terrorist and apply military justice, which includes indefinite detention without trial.  An example of this is Josè Padilla, held under the original AUMF.  In 2002 President Bush declared him an enemy combatant after his arrest in Chicago, and he was held and tortured for three years by the military.  Eventually, under pressure from civil libertarian groups, and likely to avoid losing key court cases that may have restricted further executive powers, the administration moved Padilla to the civilian court system.  Notably, and unfortunately, the 4th Circuit Court of Appeals ruled the President did have the authority to hold Padilla indefinitely without trial, and that ruling still stands because the government cleverly moved Padilla out of the military and into the civilian justice system to avoid the Supreme Court being able to rule on his case and possibly setting a precedent that the government’s actions were unconstitutional.

Key point #10: Inside of the United States, the President, without any court oversight, can decide you are a terrorist and subject you to military justice, which can include indefinite detention and torture.

To summarize, outside of US soil the President can declare you an enemy of the state and have you killed if the executive branch alone convinces itself that you are a “imminent threat”.  It doesn’t matter if you are a US citizen or not, if they decide you are a threat to the United States you can be executed without trial.  Inside of the United States, whether you are a US citizen, permanent resident, or visitor, you can be declared an enemy combatant, and subject to military, not civilian justice, and this can include indefinite detention and torture.  You do have the right to a military trial, but the government will use evidence against you that you cannot even see.