From military tribunals to the questioning of foreign nationals and incarceration of suspected terrorist accomplices, the war on terror is obliging Americans, and the government of these United States, to think carefully about the rules that should pertain in the application of government power to individuals – particularly non-citizens.
We shouldn’t be alarmed at debate about Bush administration policies in fighting the war. We are a cosmopolitan people, fighting a war against a global, secretive and determined foe. Our adversary seeks to take advantage of the freedom America offers in order to undo that freedom. Preserving the security of American society without sacrificing our liberty is a complicated task, and it is good that so many intelligent citizens are taking part in the debate about how best to do it. And it is also good that, under the Constitution, our national executive can take the steps he deems necessary without waiting for perfect agreement from all of us.
It remains our task to be vigilant that government power remain reasonable, and constitutional. Substantial abuse of government power would undermine the very constitutional system that the actions of our military and civilian officials are pledged to defend. And yet, fear of such abuse must not paralyze our ability to respond to the threat we face. Our founders knew the fear of abusive government power and found the courage to be wise in establishing a government that would be unlikely to become abusive. We should imitate them in retaining the courage to be prudent in our own time.
We must be careful, but determined. Where the use of government power can be justified – in terms of the threat to national security – we must not be unduly fearful of government action. We should trust common sense, and the Constitution, to see us through.
We must be careful not to identify this as a war against certain ethnic or religious groups, rather than as against individuals identified with certain activities. Individuals commit terrorism, and these are our enemies – not the groups to which they happen to belong.
Does this mean that to avoid the charge of “racial profiling,” the United States government should be seeking to question all non-citizens in the United States, not just recent arrivals from the Muslim world? Of course not. We have an experiential basis for believing that America faces a threat from individuals fitting a certain description. There is nothing wrong with focusing our inquiry on the area from which the threat is most likely to come.
The goal is to identify terrorists who threaten the United States, so that we can effectively eliminate that threat. Questioning recent visitors from the Muslim world is a manifestly reasonable step to take in the pursuit of that goal.
Visitors to America are here as a privilege, and we can accordingly set terms and conditions that reflect our security requirements. Foreigners who object to being asked questions about what they might know regarding America’s mortal enemies certainly should not continue to receive the privilege of being guests of America.
Regarding those foreigners who are actually accused, or might be accused, of a crime under American law, the Constitution clearly indicates that due process must be followed – not just for citizens, but for all persons. For this reason, I believe that it would not be justified to try foreigners captured in America – even those accused of terrorist acts – outside the normal course of our legal procedures simply because they are foreigners.
By definition, military tribunals combine executive and judicial power in a way that is dangerous to civil liberty. Recourse to such tribunals apart from theaters of war, and the exigencies of war, will destroy the constitutional distinction between the judicial and the executive power. There is good reason to judge that the normal application of American law would be unreasonable in the case of terrorists captured in Afghanistan and in the course of military action. The capture and treatment of such people would naturally and reasonably be a matter of military, not civil justice.
But the Constitution, and sound political judgment, require that even foreign enemies of America, if captured and held in America while the American justice system is functioning properly, should be tried if possible under the normal course of that system. “Due process,” of course, is a term that must be interpreted with prudence and discretion, and the arrest, accusation and trial of a foreign terrorist on American soil might differ in many ways from the treatment of home-grown criminals.
But the transfer of jurisdiction over such prisoners from civil to military justice should only occur as a matter of real necessity, for it would be the effectual declaration of a limited form of martial law in the United States, itself. Such a course could become necessary, but we should recognize its great danger and leave it as a last resort. No such hesitation is necessary in Afghanistan.