Constitutional Rights vs. Enemy Combatant Conundrum
The Smart Guys, Erwin Chemerinsky from Duke University Law School and John Eastman from Chapman University Law School, joined Hugh Hewitt for a discussion of the implications of the indictment of Jose Padilla . The questions raised are paramount to our future and the continuance of our traditional legal protections from an over-reaching government. Read the transcript on Radio Blogger.
It is the function of intelligence agencies to analyze data, determine trends and opine about future events. Here’s the problem, at some point intelligence agencies are bound to learn of potentially imminent terrorist acts and the government is placed in the position of taking some action at the peril of disclosing highly sensitive intelligence investigations where there are bigger fish to fry.
Today’s problem springs from the need that our nation has for its intelligence and law enforcement agencies to diligently identify and pursue those who would destroy our way of life through asymmetric warfare using techniques of terrorism. If you think that Sept 11, 2001 was an oddity, a one time event, you are so uninformed that you ought to remove yourself from any serious discussion on the issues. Suffice it to say, Islamo-fascism declared an asymmetric war on the U.S. long ago as evidenced by the bombing of our military barracks, embassies, naval ships, the assassinations of our diplomats and business people, and the bombing of the World Trade Center in 1993.
Central to Islamo-fascist terrorism in the U.S. is the blind sheikh, Omar Abdel Rahman, who was convicted of the 1993 attack on the World Trade Center and plotting attacks on New York landmarks in 1995.
Indicted along with Padilla are Kifah Wael Jayyousi, Kassem Daher and Adham Amin Hassoun. Jayyousi was linked to the blind sheikh, and Jayyousi has been an prime terrorist target since 1993. Jayyousi is reported to be a close associate of Hassoun, who recruited Padilla.
It is obvious that intelligence agencies have been monitoring individuals associated with Sheikh Omar Abdel Rahman since the early 1990’s. It also appears that the intelligence agencies learned of Jose Padilla from these ongoing investigations. It appears that Padilla is a little terrorist fish in the pond, but nevertheless a potentially dangerous fish. So the government must take action to neutralize the threat.
To arrest Padilla, a U.S. citizen, and prosecute him under criminal statutes requires that the government must accord him Constitutional Rights that will jeopardize highly sensitive national security information and forewarn other dangerous fish that they are being investigated. The government is now faced with competing interests: the Constitutional rights of a citizen as applied in criminal cases; and the need to keep information confidential in the greater quest to protect the citizens from potential terrorist attacks. It is, in other words, a battle between individual rights as opposed to the rights of the many to live without becoming terrorist victims.
Civil libertarians fear the erosion of personal rights by the government. And, there certainly are examples of government doing just that. It is indeed a conundrum. Somehow we must figure out a way to balance the needs of the citizens to be free of unnecessary detention and at the same time provide for the maximum security of the populous.
The key to the question is this. The intelligence and law enforcement agencies are far too small to intentionally waste time investigating innocent citizens. Certainly in the process of investigating potential threats, information will be gathered on innocent individuals. However, intelligence information that is compiled and never sees the light of day, either as a result of detention or public disclosure is of no practical importance to the citizens on whom it was collected. Adequate safeguards can be placed upon the intelligence and law enforcement communities ensuring that those who misuse intelligence information are personally liable either civilly or criminally.
No system of jurisprudence will ever be perfect. Innocent people are wrongly convicted criminally and innocent people will be detained as enemy combatants outside the normal criminal system. It is the price we pay for living in an imperfect society. The best we can do is to try and do our best. We can help in that endeavor by insisting upon incredibly high levels of competence and ethics in our intelligence and law enforcement agencies. That costs money, and it costs effort. It is a price we can not afford to ignore. Our freedoms are too dear to fritter away. But, our freedoms are of little value and do not protect us when a bomb is shredding our bodies.
It is the function of intelligence agencies to analyze data, determine trends and opine about future events. Here’s the problem, at some point intelligence agencies are bound to learn of potentially imminent terrorist acts and the government is placed in the position of taking some action at the peril of disclosing highly sensitive intelligence investigations where there are bigger fish to fry.
Today’s problem springs from the need that our nation has for its intelligence and law enforcement agencies to diligently identify and pursue those who would destroy our way of life through asymmetric warfare using techniques of terrorism. If you think that Sept 11, 2001 was an oddity, a one time event, you are so uninformed that you ought to remove yourself from any serious discussion on the issues. Suffice it to say, Islamo-fascism declared an asymmetric war on the U.S. long ago as evidenced by the bombing of our military barracks, embassies, naval ships, the assassinations of our diplomats and business people, and the bombing of the World Trade Center in 1993.
Central to Islamo-fascist terrorism in the U.S. is the blind sheikh, Omar Abdel Rahman, who was convicted of the 1993 attack on the World Trade Center and plotting attacks on New York landmarks in 1995.
Indicted along with Padilla are Kifah Wael Jayyousi, Kassem Daher and Adham Amin Hassoun. Jayyousi was linked to the blind sheikh, and Jayyousi has been an prime terrorist target since 1993. Jayyousi is reported to be a close associate of Hassoun, who recruited Padilla.
It is obvious that intelligence agencies have been monitoring individuals associated with Sheikh Omar Abdel Rahman since the early 1990’s. It also appears that the intelligence agencies learned of Jose Padilla from these ongoing investigations. It appears that Padilla is a little terrorist fish in the pond, but nevertheless a potentially dangerous fish. So the government must take action to neutralize the threat.
To arrest Padilla, a U.S. citizen, and prosecute him under criminal statutes requires that the government must accord him Constitutional Rights that will jeopardize highly sensitive national security information and forewarn other dangerous fish that they are being investigated. The government is now faced with competing interests: the Constitutional rights of a citizen as applied in criminal cases; and the need to keep information confidential in the greater quest to protect the citizens from potential terrorist attacks. It is, in other words, a battle between individual rights as opposed to the rights of the many to live without becoming terrorist victims.
Civil libertarians fear the erosion of personal rights by the government. And, there certainly are examples of government doing just that. It is indeed a conundrum. Somehow we must figure out a way to balance the needs of the citizens to be free of unnecessary detention and at the same time provide for the maximum security of the populous.
The key to the question is this. The intelligence and law enforcement agencies are far too small to intentionally waste time investigating innocent citizens. Certainly in the process of investigating potential threats, information will be gathered on innocent individuals. However, intelligence information that is compiled and never sees the light of day, either as a result of detention or public disclosure is of no practical importance to the citizens on whom it was collected. Adequate safeguards can be placed upon the intelligence and law enforcement communities ensuring that those who misuse intelligence information are personally liable either civilly or criminally.
No system of jurisprudence will ever be perfect. Innocent people are wrongly convicted criminally and innocent people will be detained as enemy combatants outside the normal criminal system. It is the price we pay for living in an imperfect society. The best we can do is to try and do our best. We can help in that endeavor by insisting upon incredibly high levels of competence and ethics in our intelligence and law enforcement agencies. That costs money, and it costs effort. It is a price we can not afford to ignore. Our freedoms are too dear to fritter away. But, our freedoms are of little value and do not protect us when a bomb is shredding our bodies.
posted by Paul Coambs | 2:51 AM
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