Emotional Moments Make Bad Law

You are traveling in London, taking in the sights. It’s gray outside, but the Tower Bridge and the Themes somehow shine in the morning sky. You take a deep breath and smile. Only for a moment. An explosion rocks the bridge, a bomb it seems. People and bodies go flying; chaos rakes the air and blood and gore are everywhere as police, fire and medical sirens wail that particular call unique to the U.K. You are dazed, lying on the ground, winded and uncertain if you are hurt. You pass out.

When you come to, you are in a hospital bed… you look more carefully. Guards. Bars on the widow. A prison ward. You are confused. A sinister and ill-suited man, hair slicked back, stands nearby, flanked by a big burly nurse and two uniformed police officers. Your hands are shackled. He is holding your U.S. passport, thumbing through the pages. You open your mouth, but slurred speech is the best you can produce. You try again, asking what is going on. Mr. Hair-Slick responds, telling you that you are being held, indefinitely, on terrorism charges. Responsibility for the blast that rendered you unconscious is being laid at your feet.

After protests that are easily cast aside, you demand access to a U.S. consular official – part of a U.K. – U.S. treaty, and want to speak to a lawyer (someone you have known for years). You want to exercise rights that are a part of the very foundation of British law. Unfortunately, you are informed, such rights are simply not applicable to foreign nationals charged with terrorism. Your hearing, before a military tribunal, will be scheduled in due time, but such things take time… a year or more under the new laws.

The above scenario is, of course, not only fictitious; it flies in the face of British law and is not something that could happen there. But go back three spaces. If such a statute were passed, and you were even denied the right to challenge the law at all being a foreign national charged with terrorism, you would flail helplessly in a state that is no longer governed by a laws which are checked and balanced by a judicial system. All the prosecutor had to do in this case is charge you with terrorism, and because you were not a British subject, you lost your right to be tried in the British justice system, with a real judge and a real jury, quickly and with full representation.

And that is precisely what a number of high-ranking members of Congress are proposing to cater to an angry constituency that wants vengeance: foreign nationals arrested in the United States and charged with terrorism would not be accorded any rights under the Constitution. There is no need to prove that someone is a terrorist to take away Constitutional protection, under their view; it is enough that someone is simply charged with the crime. Think that this unchecked power – which would undoubtedly be rejected by the Supreme Court anyway – is open for abuse by prosecutors with political aspirations? The entire American legal system is based on checks and balances. Take away that system, selectively apply Constitutional protection, and are we really a nation of laws? Are we really the United States of America? And is that how we would want our nationals to be treated overseas? Do we really like the Iranian system of justice so much that we prefer their procedures over our own?

Okay, and if you want an issue in the space that is really murky, what do you think of a Presidential directive to track and kill an American citizen overseas who happens to be a religious cleric… without court review? The May 14^th New York Times: “The notion that the government can, in effect, execute one of its own citizens far from a combat zone, with no judicial process and based on secret intelligence, makes some legal authorities deeply uneasy… To eavesdrop on the terrorism suspect who was added to the target list, the American-born radical cleric Anwar al-Awlaki, who is hiding in Yemen, intelligence agencies would have to get a court warrant. But designating him for death, as C.I.A. officials did early this year with the National Security Council’s approval, required no judicial review.” And exactly what would that judicial review be? A full trial?

The government’s response? “Administration officials take the view that no legal or constitutional rights can protect Mr. Awlaki, a charismatic preacher who has said it is a religious duty to attack the United States and who the C.I.A. believes is actively plotting violence. The attempted bombing of Times Square on May 1 is the latest of more than a dozen terrorist plots in the West that investigators believe were inspired in part by Mr. Awlaki’s rhetoric… ‘American citizenship doesn’t give you carte blanche to wage war against your own country,’ said a counterterrorism official who discussed the classified program on condition of anonymity. ‘If you cast your lot with its enemies, you may well share their fate.’” The Times. What if the underlying intelligence that supports the kill turns out to be wrong? Do we need checks and balances here? What are your thoughts?

Maybe issues like this are why the nomination of a new Supreme Court justice – US Solicitor General Elena Kagan – is getting so many headlines; next to President of the United States, it’s the most important political position in the country. Good judges are the backbone of the entire American democratic system.

I’m Peter Dekom, and every time someone wants to limit the application of our Constitution, I get deeply concerned.