May 10, 2006
An Answer to John Steele Gordon Posted by Joshua Zeitz at 09:30 AM EST Since 2001 two citizens, José Padilla and Yaser Esam Hamdi, have been detained without trial or charges. Hamdi was released and flown to Saudi Arabia after the Supreme Court upheld his detention but authorized him to challenge it in court. As for Padilla, the Bush administration has played a devious game, at first holding him as an enemy combatant on grounds that he plotted to launch a dirty bomb against U.S. civilian targets, but then transferring him to civil custody and charging him with conspiracy to “murder, kidnap and maim” persons overseas. Either the administration has tacitly admitted that Padilla was not, in fact, an enemy combatant involved in a dirty bomb plot, or it has decided that said plot was no big deal. Either way, it held Padilla as an enemy combatant and then, after a stretch of time, determined that it could no longer do so. In addition to Padilla and Hamdi, the administration has held hundreds of foreign nationals as enemy combatants, summarily ruling them beyond the reach of the Geneva Convention accords. Though he would like to write off liberals as dim-witted and soft on national defense, Mr. Gordon has glossed over a legitimate and important source of disagreement. He believes that we should compromise civil liberties in a time of war. Many liberals, as well as many serious libertarians and plenty of people in the political center, believe that to declare an open-ended war against a non-state entity and to use that declaration to detain people indefinitely, without formal charges, without access to counsel, and without a trial, is Orwellian. I’ll go further than that. It’s chilling. It offends standards of civilized behavior. It degrades us as a nation. In building his argument, Mr. Gordon cites Robert Jackson’s dissent in Terminiello v. Chicago, in which the future Nuremberg prosecutor argued that the government had the right to ban politically inflammatory speech in a time of war. Though Terminiello concerned the broad question of balancing civil liberties and national security, which is also the topic that Mr. Gordon and I are debating, it’s not a very useful parallel here. Denying someone the right to agitate for an unpopular cause is highly problematic, but it’s not anywhere near as damaging as jailing a person indefinitely, without due process of law. These are apples and oranges. In any event, Jackson was in the minority. The court came down for civil liberties. A better example would be Korematsu v. United States (1944), in which Jackson dissented from the court’s decision upholding the conviction of an American-born citizen of Japanese dissent who refused to report to a detention center during World War II. Jackson’s dissent was mixed. He scored the civil court’s conviction of Fred Korematsu for enforcing “the principle of racial discrimination in criminal procedure and of transplanting American citizens.” At the same time, he maintained that the military had a limited right, in a time of war, to detain citizens. In effect, Jackson wanted the civilian courts to keep their hands clean of the entire business, or to intervene if they felt the military had overstepped its bounds. Either way, Jackson appears somewhat more squeamish and equivocal on the matter of balancing civil liberties and national security than Mr. Gordon would have us believe.
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