I love columns that require me to look for something in the U.S. Constitution. Here’s a selection from the Sixth Amendment: “In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial . . .” Hear that? Speedy. As in, it has to happen, and it has to happen expediently, not any time you feel like it. That appeared to be the reasoning behind a ruling from a U.S. district court that ruled indefinite detention of terror suspects unconstitutional, and subsequent legislation banning it.
The legislation has taken the form of an amendment in a routine bill outlining the 2013 defense budget. Prominent backers include, naturally, Rep. Ron Paul (R-TX), plus another Republican and two Democrats. Opponents include Reps. Buck McKeon (R-CA) and Lamar Smith (R-TX), who had this to say in a letter to colleagues in defense of last year’s defense authorization law that stripped the right to trial from terror suspects, including those who were U.S. citizens taken into custody on U.S. soil:
No one could possibly favor the unlawful detention of American citizens . . . [The goal of indefinite detention is to] reinforce the protection of American citizens from terrorist attacks.
Clearly these two are aware that the unlawful detention of American citizens is a bad thing; otherwise they wouldn’t deny that they favored it. How is not being assured of the right to trial, which is enshrined in a law older than and superior to the one passed last year, not unlawful? It also carries a presumption of guilt that turns at least 252 years of legal principle upside down. All in the name of protecting the American people, who would need only be tagged as a suspect to get the business end of the 2011 law.
I personally don’t have much problem with its authorization of military custody; a real terror attack would require the military’s involvement, especially if it started from a foreign country. But the Constitution is unequivocal about the right to trial. You can argue over to whom the Constitution as a whole applies – only American citizens, or just people who were in the country at the time? – until the cows come home, but it definitely applies to American citizens. To deny them a trial is patently illegal; to deny the others a trial is potentially inflammatory and could compromise the ability to ascertain vital intelligence. That is unsafe.
There are some things you should do in the name of counter-terrorism and some things you shouldn’t. A couple of good litmus tests are constitutionality and applicability to Americans, and this law has come out pretty acidic on both sides of the testing strip.