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End Run Around Rights: Designation of 'Enemy Combatants' Puts Too Much Power in Government's Hands, Ignores Due Process

JAY BOOKMAN
The Atlanta Journal - Constitution
October 3, 2006

Last week, Congress claimed to have reached a compromise with the White House over President Bush's right to designate and detain "enemy combatants" out of reach of the American judicial system.
 
Unfortunately, any minor compromises they may have wrung from the president pale in importance to the compromises they inflicted on the U.S. Constitution, on the right to trial by jury of your peers and on the most basic of freedoms, the right not to be imprisoned without due process.
 
Under the legislation, the president now has the power to designate as enemy combatants those he believes have "purposefully and materially supported hostilities against the United States," with those so designated to be tried not in civilian court but by special military commissions. Legal residents of the United States would also be denied the right to appeal their status as enemy combatants, meaning they could be arrested and detained for years with no access to courts or any way to prove their innocence.
 
Many Americans find nothing wrong with that approach, and in fact take solace in believing that their protection against terrorists has been enhanced. But they have purchased that protection at a very high price, by sacrificing protections against government excesses, incompetence and arrogance that have been part of Western law for seven centuries.
 
And unfortunately, the recent record is full of cases demonstrating the importance of those legal protections.
 
In 2002, a Canadian citizen named Maher Arar was picked up an airport in New York where he was changing planes, held in secret and interrogated here in the United States for 12 days as a suspected terrorist before being secretly shipped to Syria, a country known to practice torture.
 
Arar was held in Syrian prisons for almost a year, where he was tortured and beaten with electrical cables and made to confess crimes that he did not commit. His nightmare ended only when Syrian officials finally concluded that he was absolutely innocent, a finding that Canadian officials have since confirmed.
 
If U.S. officials had taken Arar's case to a judge before essentially kidnapping him and shipping him overseas, as the law requires, the weakness of the evidence against him would have been apparent. It would have saved an innocent man from savagery he had done nothing to deserve, and saved the United States the shame of having assisted in the torture of an innocent man.
 
In 2003, Capt. James Yee, a West Point graduate and Muslim chaplain assigned to the prison at Guantanamo Bay, was arrested on charges of stealing classified information and aiding the enemy, charges that could have resulted in the death penalty. He was placed in the brig, held in solitary confinement for months, blindfolded at times and shackled just as the most dangerous terrorists at Guantanamo had been.
 
"At that point, I clearly understood they were treating me as an enemy combatant," Yee said later.
 
Government officials were insistent on Yee's guilt right up to the time they had to appear in court to present evidence against him, and were finally forced to concede they had none. Their fixation on prosecuting Yee was so strong that even after he was cleared, prosecutors tried to pursue him on minor charges of adultery and misuse of a government computer. Only the intervention of a general forced prosecutors to back down.
 
In 2004, the FBI arrested Brandon Mayfield, an attorney from Portland, Ore., on suspicion of having aided terrorist bombings in Madrid, Spain, that killed 191 people. FBI officials insisted that Mayfield's fingerprints matched those linked to the bombings, claiming an "absolutely incontrovertible match." Under the legislation passed last week, Mayfield could have easily been labeled an enemy combatant and made to disappear from civilian courts and justice.
 
FBI officials persisted in their claim of Mayfield's guilt even after Spanish officials publicly disputed their fingerprint claim. Only after Spanish authorities proved that the print belonged to a Tunisian suspect instead did the FBI admit its mistake, and even then it tried to blame the error on a blurred photograph of the print.
 
A subsequent investigation, however, proved the photograph had not been blurred at all; instead, an FBI analyst overeager to find a match had fixated on Mayfield's fingerprint, perhaps in part because Mayfield had converted to Islam, and others in the bureau did not dare to question the finding in such a high-profile case.
 
Without public scrutiny and the necessity to prove their case in open court, it is entirely plausible that Mayfield would today be in a military prison somewhere.
 
Government is a bureaucracy prone to the mistakes of a bureaucracy, but with potentially enormous power over the individual. And by giving government more unchecked power over our lives, we do not buy security; we merely exchange one form of insecurity for another form that is both more dangerous and insidious.

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