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Padilla, Hamdi & Guantanamo

In detaining U.S. citizens Jose Padilla and Yaser Hamdi in a U.S. Navy brig and another 650 foreign nationals at the Army base at Guantanamo Bay, the Bush Adminstration claims that the ongoing "war on terrorism" allows it to detain "enemy combatants" indefinitely, without allowing them access to legal counsel or any other due process rights. In effect, Bush says we're at war, and the detainees are prisoners of war who can be held as long as the conflict continues, invoking a long-accepted custom. (However, it should be noted that the administration uses the term "enemy combatants" rather than "prisoners of war", despite its insistence that we're at war, probably due to the fact that the latter term would instill an expectation of human rights consistent with the Geneva Convention.)

The problem here is the concept of a "war on terrorism." In traditional military conflicts, the U.S. faced tangible foreign regimes--Hitler's Germany, Hirohito's Japan, King George's England. Once the enemy was defeated and a formal peace treaty executed, the war would officially be considered to be at an end, and thus any war prisoners would no longer constitute a threat to U.S. security and could be safely returned to their vanquished home countries.

But by its very definition, the "war on terrorism" will never end, as terrorism is a means for non-state entities to attack stronger powers to advance its own political interests. No peace treaty will ever be negotiated with a terrorist organization, which by its very nature lacks the official legitimacy to be subject to legally-binding agreements. Terrorism has been with us for centuries and, being a fairly effective tactic for relatively powerless groups to advance their interests, it will be with us for centuries to come.

The administration's policy seeks to define its "war on terrorism" and "enemy combatants" entirely on its own terms, without interference from the courts, and thus reserve the right to jail anyone it unilaterally determines to be a threat to U.S. security. If this policy is allowed to continue, the administration could claim that other ordinary citizens--say, antiwar protesters and civil rights activists fighting against the Patriot Act--are undermining its efforts to combat terrorism, and thus jail those non-violent parties indefinitely as well.

If the Supreme Court is truly committed to its responsibility to uphold the Constitution, it will quash any and all Bush Administration efforts to circumvent the Constitutional guarantee of due process.

Otherwise, what we'll be living under won't be democracy. It will be Stalinism.

April 30, 2004 in Current Affairs | Permalink