We Are All Potentially Enemy Combatants

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ought to be limits to freedom.”
~ George W. Bush

The fabric
of our nation is unraveling, and our freedoms are hanging by a thread.

In a world
where the president has the power to label anyone, whether a citizen
or permanent resident, an enemy combatant and detain that person
indefinitely without trial, no liberty exists and everyone is potentially
an “enemy combatant.”

According to
the Bush Administration, Ali Saleh Kahlah Al-Marri is such a person.

This legal
alien, residing in Peoria, Ill., with his wife and children, was
attending college when he was swept up by government agents. He
was held in a military prison for four years without ever being
charged with a crime. And for the first 16 months of his imprisonment,
this man’s family was not even allowed to see him, speak to
him or reassure themselves that he was alive and well.

Because Al-Marri
is not a U.S. citizen, the government denied him basic constitutional
protections such as the right to hear the charges against him, consult
an attorney and appear before a judge to determine if, in fact,
he is guilty of anything. To some people, this is as it should be.
But that’s not the way things are supposed to work here in
America. Even the worst criminals in American history, from flesh-eating
Jeffrey Dahmer to terrorist bomber Timothy McVeigh, were afforded
an attorney and a trial.

This issue
is bigger than Al-Marri. It’s even bigger than the Bush Administration
and its so-called war on terror. The groundwork is being laid for
a new kind of government where it will no longer matter if you’re
innocent or guilty, whether you’re a threat to the nation or
even if you’re a citizen. What will matter is what the president – or
whoever happens to be occupying the Oval Office at the time – thinks.
And if he or she thinks you’re a threat to the nation and should
be locked up, then you’ll be locked up with no access to the
protections our Constitution provides. In effect, you will disappear.

Box has been opened for presidents to become imperial presidents,
which should terrify anyone with any sense of history. Sadly, few
Americans are up in arms over the ramifications, let alone concerned
that it might impact them in any way. “I’m a law-abiding
citizen,” one man recently remarked. “I have nothing to
worry about.”

That statement
might have been true once upon a time, when a person was innocent
until proven guilty and the judicial system could be relied upon
to hear facts and ascertain truth. But such is no longer the case.
We are now operating under a system of government where anything
goes and everyone is suspect.

A recent ruling
from a three-judge panel of the Fourth Circuit Court of Appeals
seems to have provided a temporary reprieve from the fear that our
constitutional republic is floundering. In a 2-1 decision, the court
ruled that American citizens and legal aliens like Al-Marri must
be afforded basic constitutional rights such as access to an attorney
and a court and the right to not be imprisoned unless charged with
a crime.

Even so, the
courts will not be our savior on this one. The ruling will likely
be overturned by the full Fourth Circuit, and the U.S. Supreme Court
will probably uphold the reversal. So what do we do in light of

First, we must
recognize that, at a minimum, the accused has the right to present
his side to a judge and jury. We must remember that our Constitution
protects “persons,” not just citizens. Indeed, the Fifth
Amendment guarantees that “no person” will be “deprived
of life, liberty, or property, without due process of law.”
The Sixth Amendment secures our right to a speedy and public trial
by an impartial jury, to be informed of the charges brought against
us and access to a lawyer. Together, they ensure that the government
cannot take our freedoms away unless they charge us with a crime,
place us before a judge and jury and give us a fair opportunity
to confront the witnesses and evidence presented against us.

Second, we
must remember that America’s reputation as a defender of the
rule of law is worth preserving. At one time, the Statue of Liberty
symbolized our commitment to fairness and liberty. Today, our military
commissions and secret military detention camps represent America’s

Finally, the
Bill of Rights ensures that no public official can by fiat declare
us outside the boundaries of the Constitution. We must always be
leery of government reactions to emergencies and crises because
the government’s natural response is to rein in liberty for
safety. But as Benjamin Franklin once insisted, “Those who
would give up essential Liberty, to purchase a little temporary
Safety, deserve neither Liberty nor Safety.”

the end, it always goes back to “we the people.” It’s
up to each of us to decide what America should stand for and what
is worth fighting for. It’s up to us to elect public officials
who understand and revere the Constitution. And it’s up to
us to set the standard of fairness that should be the basis of all
we do.

for the audio version of this commentary read by
John Whitehead.

21, 2007

attorney and author John W. Whitehead [send
him mail
] is founder and president of The
Rutherford Institute

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