TOTAL LICENSING
amended and clarified by the protocols of 1977 Can any furious minority hold the majority to tions”.
that were not only to protect POWs (Prisoners ransom? In 2006 the Supreme
of War), but also to extend these protections And then there is another pesky question: What Court refused to
to fighters of non-state groups. This question about the American Constitution that promises hear Padilla’s appeal.
and problem came up in the aftermath of the every citizen full right to “habeas corpus”, the In this case, named
struggles of decolonization and independence right to attorneys, a jury trial, time limited post- “Padilla vs. Hanft”, the
in the Third World of the day. It lumped to- ponement of trial, the right to question witness- Court’s three Justices
gether civilians or soldiers who might be “free- es, and if need be, by an appeal to higher court who heard the case
dom fighters” “rebels”, “liberation movements” – even the Supreme Court. remanded the case
and “terrorists” – under the reasoning that What if the sympathizer or hired gun of the at- back to a circuit court.
“one man’s terrorist is another man’s freedom tacker is an American? Under war-time rules The second circuit court earlier had denied the
fighter”. Although President Carter signed this he can be treated as an enemy. Under peace President’s power to seize him but the fourth
protocol, afterwards in 1987, President Reagan time rules he cannot. circuit court now agreed with the President
decided against submitting this provision to the Let us take the case of Zacarias Moussassoui, and upheld the government’s case as being un-
U.S. Senate for ratification, so the USA never the only surviving member of the 9/11 attack der the President’s war-time power to seize an
really officially confirmed its assent. plan found in the USA according to government American inside the U.S. and detain him or her
Therefore, legally, the USA does not have to testimony. In May 2006, a jury in Virginia sen- as a terrorist enemy – for an extended period
consider itself bound to the Convention’s pro- tenced him to life imprisonment five years af- without a lawyer.
tocols and can and does claim that international ter his arrest. The reason it took five years was, A similar case was also ruled on just now in 2007:
public opinion does not take into account the because without testimony by prison resident, the D.C. Court of Appeals threw out the claims
American efforts and actions over time that lead Kahlid Sheikh Mohammed - whom the govern- brought on behalf of hundreds of suspected ter-
to, as it likes to postulate, “carrying the largest ment refused to produce - claiming privileged rorists at “Gitmo”, ruling that, as foreign nation-
burden of the world” in what it terms the “War information and security risk. The case dragged als, they did not enjoy a habeas corpus right.
on Terror’”. on. Moussasui admitted to being a member of Al Thereby the Court upheld the constitutionality
All this of course brings us straight to Al Qa- Qaeda, he yelled out to the judge, “America, you of the system of military commissions enacted
eda’s broadcasts announcing its “war against lost! I won!” and “God curse America and God by Congress last year. It opined “it is not pru-
all infidels” and it bring us to Guantanemo Bay save Osama Bin Laden”. He had been indicted dent to confer constitutional rights on enemy
(“Gitmo”) and Abu Ghraib. for conspiracy to commit terrorist attacks. He combatants”. The Court also reasoned that the
It also brings us back to 9/11, attacks on Lon- fired his American defense attorney and took prisoners furthermore are not covered by U.S.
don subways, attacks on Bali tourists, attacks on over the defense himself, claiming an abusive law since “Gitmo” is under the sovereignty of
Madrid’s railway station and the suicide bombing childhood. Then he claimed he was involved Cuba.
of the USS Cole and the bombing of the U.S. with the 9/11 plot, then that he wasn’t! He was The real question in all these cases seems to be
embassies in Kenya and Tanzania. considered possibly deserving of an insanity plea the difficult question of adapting the law to the
There is no Al Qaeda army, but whereas in old- by his lawyers, but in the end the judge ruled real situation and how to do it all correctly. I
en days (not so long ago), only nations had the him sane. He defined his trial as a “circus” and have cited the above cases, not because I want
money, weapons and forces to declare war and for different reasons from his, so would I. to express an opinion on their outcome but be-
to fight the war – in today’s high tech world any Just one more example: Let us look at Jose Pa- cause we can see from them the cost and time
determined group can secure for itself finance dilla. This was an American citizen who had got spent and the difficulty of proceeding under the
and awesome weapons to create havoc on a mixed up with Miami drug gangs, was convicted routines demanded by the American system of
perceived enemy. of murder in 1983 as a juvenile, and moved to justice for Americans.
Ah, the good old days of the Cold War. It was Egypt in 1998 . Under the name Abdullah Al Mu- What then if the terrorist is a foreigner? The
a simpler, more stable time when the threat of hajir, the government asserts he visited Pakistan issue becomes even more confusing and for the
mutual annihilation kept both the West and its and Afghanistan, went to an Al Qaeda camp for moment the government has resolved it tempo-
Communist enemies in check. training and in 2002 flew to Chicago. He was ar- rarily by the simple expedient that it is held un-
I think it is not really true that the Cold War rested on suspicion of planning a future terror- der war-time powers granted the President, that
era was, on the whole, safer. We forget how ist attack. The Department of Defense trans- we can park such suspects in overseas coun-
passionately U.S. hawks argued for nuking Com- ferred Padilla to the Navy prison in Charleston tries of their origin or in other prisons, if their
munist China. We came terribly close to a cata- S.C. Padilla’s lawyer filed for a writ of habeas country of birth doesn’t suit us. Of course the
clysm during the Cuban Missile Crisis in 1962. corpus and argued that the military had violated early captives all wound up in “Gitmo” where
A simple “nyet” from Moscow could have trig- the Constitution with this military detention we truly don’t know what to do with them. Of
gered a full blown nuclear war. Does Al Qaeda because it did not have enough evidence. A course we could extend the privileges offered
pose this type of threat and maybe today’s world Court of Appeals released him, arguing that the to Americans, but this in turn might overburden
is, after all, a lot less dangerous? I wonder? President, even as Commander in Chief, did not the system further and it might not suit the col-
And WHAT IF an atomic weapon fell into the have the power to overrule the Constitution . lective mind-set of our voters either. And also,
hands of terrorists? Would the theory of mutual The Dean of the Yale Law School filed a brief is “Gitmo” really U.S. soil or in Cuba?
deterrents that worked so well before during declaring “the indefinite executive detention of
many years of cold wars and proxy wars hold U.S. citizen Jose Padilla, on U.S. soil, offends the QUESTIONS:
true today? rule of law and violates our constitutional tradi- • If we use methods designated to provide
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