Decision ‘08

Hamdam Decision Another Chapter In Liberty-Security Tradeoff

Daniel Henninger puts Hamdam in context:

So we got the Hamdan Guantanamo detainee decision yesterday, the turmoil over revealing the Swift surveillance of terrorist financing a week ago, the FBI’s capture in Florida of the would-be al Qaeda bombers of the Sears Tower before that, and oh yes, those 17 Muslims in Canada who wanted to invade Parliament and behead the prime minister. We seem to be thoroughly entangled just now in never-ending tensions over civil liberty concerns on one hand and manifest national security threats on the other. Nearly five years after September 11, it’s a little stale to argue that this much confusion is just the way a vigorous democracy functions. Or not. It was good to see that the FBI could catch a group like the Florida bombers. By coincidence about that time, the director of the FBI in New York, Mark Mershon, visited our offices. Mr. Mershon made it clear that the FBI will not monitor or surveil anyone, including Muslim extremists, without a “criminal predicate.” Generally, probable cause is the gold standard for watching. Mr. Mershon said that if someone keeps his head down and nose clean in the U.S., he can function with a great deal of freedom. That’s a rough but workable description of our system.

This traditional, all-American tradeoff between liberty and risk works OK in a country populated with standard criminal types; most eventually work their way up to a police database. But what about the world of Islamic fanaticism whose recruits, notably suicide bombers (or pilots) are nearly all first-timers? Does “our system” mandate that we allow an Islamic fifth column to fly beneath the radar of probable cause and into buildings? Do we have to settle for catching bottom-feeders like the Florida plotters while the smart boys, planning a smallpox attack in Detroit, stay below what they’ve read is the threshold for FBI curiosity or a FISA warrant?

It’s not an issue that’s going away anytime soon…

5 Responses to “Hamdam Decision Another Chapter In Liberty-Security Tradeoff”

1 peter Says:
June 30th, 2006 at 4:09 pm
There are certain basic American principles which Henninger does not recognize. These include the right of habeas corpus, the Fourth Amendment right against unreasonable search and seizure, and the right to a presumption of innocence. The Supreme Court recognized another basic principle yesterday: that any process which leads to the imprisonment of someone must be fair. In addition, the Court affirmed that as a signatory to the Geneva Conventions, we are obligated to give fair treatment to anyone we detain. Of course, the Constitution gives Congress the power to “make Rules concerning Captures on Land and Water.”

The Bush administration – which is happy to talk about “strict constructionism” and “activist judges” – was quite properly repudiated by the Court in a lop-sided decision. What Henninger is implying is that the principles which have existed for centuries – including times where we faced threats much more dangerous than Al Qaeda — should somehow be abandoned now. So no, our system does not mandate that “we allow an Islamic fifth column to fly beneath the radar of probable cause and into buildings.” However, it does mandate that the government follow the Fourth Amendment, whether it is for an “Islamic fifth column,” Ted Kaczinski, or you or me. There is no exception in the Constitution to suspend the Bill of Rights when the executive branch decides to do so. You would think that a conservative, of all people, ought to recognize this.
2 Ryan Bonneville Says:
July 1st, 2006 at 9:44 am
Peter, that’s nonsense. Hamdan is not a US citizen and he’s not entitled to protections in the Bill of Rights. On top of that, Congress explicitly stripped the Court of jurisdiction, which it just chose to ignore. The Hamdan decision was appalling and, if I were the AG, I would advise Bush to ignore it.
3 peter Says:
July 1st, 2006 at 10:23 am
Hamdan is not entitled to the protections of the Bill of Rights, but he is entitled to the protection of the Geneva Convention.

During the VietNam was, the North VietNamese announced that they would not give captured American soldiers the protections of the Geneva Convention. We did the opposite, and provided captured POW’s with Geneva protections (despite the fact that many Viet Cong did not wear uniforms, which is the excuse the Bush administration gives).

Nobody knows how many people at Gitmo are (or were) legitimate threats, and how many are shepherds who were turned over to US forces for a bounty. The kangaroo court proposed by the Bush administration is insulting to marsupials. Under their guidelines, evidence can be withheld from the accused and his lawyer; coerced evidence can be used; detainees are kept in inhumane conditions. Perhaps it does not bother you that there are innocent people rotting away because we are unwilling to give them a fair chance to defend themselves. If we saw this going on in North Korea, Iran, or Syria, we wouldn’t be surprised. The fact that it is going on under the auspices of the US government is shameful.
4 Mark Says:
July 1st, 2006 at 10:53 am
peter, pull back a bit - innocent shephards? You’re getting a little far out, here…
5 peter Says:
July 1st, 2006 at 11:55 am
There were some detainees which had been released after it was discovered that they were, indeed, shepherds — others apparently were handed to troops to collect a bounty — the fact is that without a fair trial, we really don’t know who is there or whether they really belong there –