Centerfield

Just because you're paranoid doesn't mean they're not out to get you

Lyle Denniston had this great post over at Slate yesterday about the Bush Administration's reluctance to conform with the clear expectations of the Supreme Court of the United States regarding the treatment and detention of alleged enemy combatants. My feelings on the issue are not new to Centerfield's readers: I posted them here. (I was reminded by this article that U.S. Chief Judge James Spencer of the Eastern District of Va. once asked of the Va. state attorney general, "Are there still some lawyers present over in the attorney general's office?" That sums up my view of the Administration's current arguments on enemy combatants.)

The enemy combatant umbrella covers a number of issues, including: 1a) how and by whom a person is initially designated an enemy combatant, 1b) how he challenges that designation, to whom, and with what evidence, 2) how he is treated while detained, and 3) the length of his detention. The Administration's position is that the executive has the ability to designate anyone an enemy combatant, that the designation is not subject to judicial review, that enemy combatants may be detained indefinitely, and that they may be--may be not are being--tortured to extract information. (Deputy Associate Attorney General Brian Boyle made that argument about torture to Judge Richard Leon of the U.S. District Court for the District of D.C. on Dec. 2, as reported here.) This morning's Washington Post has an excellent anthology of federal court pleadings filed by alleged enemy combatants here.

If you take comfort in the belief that the enemy combatant designation is only used by those captured in Afghanistan and Iraq, you're misguided. Jose Padilla, an American citizen, was captured in Chicago, transferred to New York, designated an enemy combatant, and is now detained in a naval brig in Charleston, S.C. Among the current detainees at Guantanamo Bay is a Bosnian Muslim who was captured by American forces "on the steps of a Sarajevo court that had found him not guilty of terrorism charges." The Administration has boldly claimed "that enemy combatant status could be given to 'a little old lady in Switzerland' who wrote checks to a group she thought provided charity to Afghanistan orphans but that actually operated as an al-Qaida support group."

This indiscriminate use of the enemy combatant designation--of dubious legal provenance to begin with, as Justice Scalia noted in his opinion rebuking the Administration in Hamdi v. Rumsfeld, 124 S. Ct. 2633 (2004)--is possibly the greatest potential threat to Americans' civil liberties in our lifetimes. If the executive has the power to a) define the term enemy combatant, b) apply it to whomever it wishes, c) detain indefinitely and deprive access to counsel, d) deny any meaningful ability to challenge the designation and e) torture if necessary, we create--create not necessarily implement--the tools required to build Orwell's 1984.

And for those who disagree with me that the Administration is willing to use the judicial branch's reluctance to buy into their line of thinking on this topic, I'm not the only one making the correlation between the social conservative agenda and the enemy combatant issue, as this article in yesterday's National Journal indicates.