For the week of July 3 - 9, 2002

Pick a classification, 
any classification

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Perhaps the first requisite of any justice system is fairness. And for a system to be fair, it, at least, has to be consistent, not subject to excessive interpretation by individuals.

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Are we in a war, or are we not in a war? Who exactly is the enemy? Is it a group, several groups, an idea? How, in fact, do we define a war in the era of terrorism? Can the Congress pass a declaration of war against something as vague as people who commit terrorism?

Given our current situation, these are more than esoteric philosophical questions. Our entire concept of civil rights hangs in the balance, because in the answers to these difficult questions lies a road map through the murky criminal justice quagmire we are finding ourselves in.

To date, our government has dodged the details, seemingly making up legal policies as it goes so as to maintain as much flexibility in eliminating the threat to its citizens. While this is a laudable goal on one level, this flexible approach may threaten something as equally important: a system of justice that will protect our citizens and an entire way of life long after we are all dead.

Consider just the first few cases we have faced. John Walker Lindh provides the simplest case, in a way. Lindh, an American, was captured in Afghanistan. He has been charged in federal court with 10 counts, including conspiring to kill Americans and supporting terrorist organizations. Lindh has counsel representing him—reportedly a high-powered team at that.

Another American citizen, Yasser Esam Hamdi, was also picked up in Afghanistan in November. He was originally sent to Guantanamo Bay, Cuba, then, when it was learned that he is an American, he was transferred to a military brig in Virginia. Presumably he is a bad guy who was to be afforded more rights than the bad guys held in Cuba, specifically those guaranteed by the Sixth Amendment: the right to a speedy and public trial, to be informed of the charges against him, to be confronted by the witnesses against him, to be able to obtain his own witnesses in his favor and to have the assistance of counsel for his defense.

But now the president has waved his invisible scepter and dubbed Hamdi an "enemy combatant." With that classification, Hamdi enters into the ether of the justice system. He can be held indefinitely, without being charged with a crime. He has been denied access to a lawyer. The government has contended that he is being held for the protection of the country, not for prosecution purposes

A third, yet distinct case, is that of American Jose Padilla. He was arrested in Chicago and sent to a brig in South Carolina, because it is believed he was planning to build and detonate a "dirty bomb." Padilla, too, is in the legal ether, having no access to counsel and no charges filed against him.

And then there are people who qualify for military tribunals, but exactly who they are and why they qualify remains a mystery except to a few in the executive branch of government.

There are some 100 foreign nationals being held in connection to the "war" on terrorism. It is unclear where they fall in the judicial scheme of things. The Supreme Court has ruled that their hearings will be held in secret.

Perhaps the first requisite of any justice system is fairness. And for a system to be fair, it, at least, has to be consistent, not subject to excessive interpretation by individuals. Further, the subjects of that system need to know what the rules are ahead of time.

If Hamdi was considered an enemy combatant, why wasn’t Lindh? For that matter, if Lindh can be charged and given the usual rights associated with due process, why wasn’t Padilla treated the same way? I suspect the answer has to do with the relative strengths of the cases the government has. Or perhaps it has to do with their willingness to use the evidence it has for fear of compromising other intelligence operations.

It is tempting to take the stance: Who cares about these bad eggs and their rights, anyway? I would agree if we knew with certainty that these guys were, in fact, the bad guys who had done bad things. Right now all we have to go on is the government’s determination that they are bad, a determination based on information no one is allowed to see. It may be reliable information; it may not be.

This is precisely why we have an adversarial system of justice. We let two sides, the prosecution and the defense, do their best to tear apart each other’s case. In the aftermath, what is left standing amid all the rubble in a courtroom is a reasonable approximation of the truth.

Ironically, the two non-citizens deemed to be terrorists have somehow escaped the nebulous fate Hamdi and Padilla face. Richard Reid and Zacarias Moussaoui are both run-of-the-mill defendants working their way through the legal system.

Taken in perspective, this doesn’t seem to be a big deal; we’re talking a limited number of cases. But I suspect the issue will broaden. There will be more people caught up in the system. With this inconsistent and seemingly extemporaneous approach to terrorist cases, innocent people are bound to find themselves in legal jeopardy.

Back to definitions. If we are truly at war, there is no reason we can’t hold and interrogate prisoners until the war is over. This has been done since the dawn of wars. But are we at war? Congress is supposed to determine that. It’s not something to be inferred from a president’s speech. If we are at war, against whom is it being waged? And how do we know when it is over? How is what we are doing now different from the covert operations the CIA and the 12 other secret government organizations have been carrying out for years?

Given our situation, these are very difficult questions to answer. But the Congress and the Administration need to face the messy details of a "war" on terrorism. We need some clarity and commitment to a position balancing national security with civil rights. It will involve compromising on both ends. But spending the time and energy to find that fine point of balance brings us closer to the ever-illusive ideal of democracy. Without the effort, we are doomed to get gummed up in a totally elastic system of justice.

 

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