The case of “enemy combatant” and American citizen Jose Padilla is raising important issues beyond the challenge of frustrating the plots of terrorists. In a USA Today Gallup poll last week, 80 percent of Americans said they would give up some freedoms to gain security. This alarming sentiment, of course, has been the basis of the tyrant’s bargain with the people from the beginning of human society. America was founded in large measure precisely to end such blackmail.
That’s why we should pay close attention to how Jose Padilla is treated. He might very well be a terrorist, but he is certainly an American citizen. That means that he is entitled to a whole range of protections under law that we take for granted. These protections include the opportunity to defend oneself against government charges, and to have that defense conducted in a court of law, with a fair chance to state one’s case before an impartial and independent judge – independent, that is, of the executive power that is bringing the charge.
These protections are absolutely fundamental to American liberty. It should be obvious to every American that citizens suspected of terrorism represent not only a danger to our physical safety, they represent as well a dangerous opportunity for our government to acquire the habit of disregarding the protections that practically constitute our citizenship. The removal of those protections from any citizen constitutes, in effect, the stripping of his citizenship.
Mr. Padilla, we are told, is an “enemy combatant” in the judgment of President Bush. This judgment may well be true – indeed, seems quite likely. But imagine the following sequence of events. A president or other high official determines that a citizen is an “enemy combatant.” Accordingly, that citizen is stripped of his rights, held incommunicado in the brig without legal counsel like the al-Qaida prisoners being held in Cuba, until the war ends. And, of course, the war on terror may never end, so he may stay there forever.
For a citizen, the crucial protection to prevent a sequence like this is the right to deny the charges against him in open court. And, now that a writ of habeas corpus has been filed, Mr. Padilla will indeed receive this opportunity. But this is because he was originally held as a material witness under the regular civil law. He therefore had the opportunity to secure a lawyer, and that lawyer has now filed a writ according to the due process that we are all supposed to be accorded. It is not at all clear that “enemy combatants” will generally be given such opportunities.
What is also unclear is whether enough people in our citizenry and government understand that no degree of executive branch confidence in the guilt of a citizen can justify the suspension of that citizen’s constitutional rights.
Such suspension would indeed be a powerful government weapon against terrorists. But it would be a more dangerous threat to the liberty of American citizens. The Washington Post last week carried a story about a former Boston cab driver, once identified by authorities as a major terrorism suspect, who was kept in solitary confinement for more than eight months without seeing a judge or being assigned a lawyer.
This war, like all previous noble American wars, is being fought against those who don’t respect the basic right of due process, including the right of citizens to defend themselves against the charges brought against them. From the Revolutionary War to the mountains of Afghanistan, American fighting men have given up their personal security to die on battlefields around the world, because they thought freedom was more important than physical security. What would they say of Americans who are unwilling to accept risks in order to hold on to that freedom?
I am not suggesting that our government has a cavalier or tyrannical view of civil liberties. I am suggesting that it is a time for us to be urgently vigilant, because our government faces serious temptations in time of war. Our founders did not say the government was to be trusted. They said government has to be watched. It is to be checked and balanced with safeguards, starting with the safeguards in due process that allow individuals to be free from the abuse of arbitrary power.
Even good government – good leaders – depend on the vigilance of the people to keep them on track, and maintain our liberty. It is our job to resist the siren song of exchanging liberty for promises of security. No government – not even our own – can be trusted with the authority to strip us of the protections of citizenship in pursuit of safety. As our founders understood, those who would exchange liberty for security deserve neither.