Tip of the Iceberg

Category liberty
Dear Mr. Tripcony:

Thank you for contacting me regarding the fiscal year 2012 National Defense Authorization Act, passed by the Senate on December 1, 2011, that included several provisions relating to the authority of the United States to detain certain individuals associated with al Qaeda, the Taliban and 9/11 conspirators.

It is well-founded in our history that the United States has the authority to hold enemy combatants until the end of hostilities in order to prevent their return to the battlefield.  The detainee provisions in the National Defense Authorization Act codify this long-recognized authority, and make clear that any al Qaeda terrorist, whether foreign or American, who takes up arms against the United States, can be held under the laws of war.  Because we are at war, detention within a military framework is often the most fitting solution for handling certain terrorist detainees.  At the same time, the provisions ensure that the rights of United States citizens continue to be protected by the Constitution.  Thus, any American detained under this authority would still be able to challenge his detention in a federal habeas proceeding.

During the vigorous debate of the National Defense Authorization Act, several Senators offered amendments intended to address perceived problems with the provisions.  Rather than improve the legislation, however, these amendments would have severely undermined our intelligence collection efforts from suspected terrorists.  As we continue to fight al Qaeda and other terrorists, our primary concern must be to ensure that our military and intelligence professionals have the authority and flexibility they need to collect valuable intelligence.  Because of the negative impact these amendments would likely have had on such critical collection efforts, I am thankful the amendments were defeated.  Following vigorous debate and an agreement to re-emphasize current law concerning the detention of persons captured inside the United States, the Senate passed the National Defense Authorization bill with overwhelming bipartisan support. Following a conference with the House of Representatives, the final version of the National Defense Authorization Act was passed on December 15th.

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Dear Mr. Chambliss:

I appreciate your thoughtful, reasoned response. As I still disagree with your position on this legislation, I present the following counter-arguments for your consideration as time permits.

Article I, section 8 of the Constitution grants Congress authority to declare war. No such declaration has been issued since June of 1942. We are not, therefore, at war.

While several extended military engagements have been authorized by Congress since cessation of the Second World War, including our operations in Iraq and Afghanistan, the War Powers Resolution of 1973 was passed specifically to limit the authority of the President to engage our military forces indefinitely. This legislation has been controversial ever since, but has not yet been declared unconstitutional by the Supreme Court. As recently as March of this year, President Obama was rebuked by Congress for involving our military in the Libyan conflict without adhering to the provisions outlined in the aforementioned resolution.

Because organizations such as al Qaeda operate independently of a specific state government against whom we might declare war, there is little hope for ever establishing a peace treaty to which all of their members will adhere, irrespective of the outcome of any actions by our military. While our military may be effective in reducing - or even eliminating entirely - the strength and influence of any one specific terrorist organization, there will always be terrorists who wish us harm. There will always be a need for us to protect ourselves from these individuals and organizations. To consider this situation, therefore, an official state of war - at least, in the constitutional sense - is to accept a permanent condition under which the rights of citizens are reduced in order to facilitate such protection.

Article III, section 3 of the Constitution provides a definition for treason, including an "aid and comfort" clause. As such, no additional authorization is required to allow our government to punish citizens who either participated in the attacks on 9/11 or supported those who did. Such punishment, however, would be pursuant to a conviction of treason, and the Sixth Amendment guarantees the right to a speedy and public trial. To detain any citizen on suspicion of acts that would constitute treason without a timely opportunity to confront their accuser and argue their innocence, with aid of legal counsel, is a clear violation of that citizen's constitutional rights.

In closing, I would argue that one of the most well-founded principles in our history is the notion of "innocent until proven guilty". If the intention of indefinitely detaining enemy combatants is to "prevent their return to the battlefield", that implies that the battlefield is precisely where we originally found them, directly engaging our forces, weapon in hand. Anything falling outside of that scenario is a question of evidence. Any argument that we must detain an individual without trial because we "know" they are an enemy combatant is logically fallacious: while we may have evidence that a given individual has committed treasonous acts, until a conviction has been established, we do not have, in the judicial sense, proof. We cannot know for certain without a trial, so we cannot deny one category of suspect a trial without severely undermining the notion that a suspect's guilt must be judicially proven in order to justify their continued detention. To do so threatens the very fabric of our society; it may, from time to time, provide physical protection for a few Americans… but it makes us all less American.

Sincerely,
Tim Tripcony