Civil Rights in an Age of War and Terror

Soon the seminal civil rights issue of our day will be decided. I’m not talking about gay marriage, but the cases of Jose Padilla and Yasser Hamdi. Their cases go before the Supreme Court to rule on the designating of American citizens as “enemy combatants” and the authority of the government to detain such citizens indefinitely without charges, without trial, without conviction, and without lawyers.

The cases are complex, and the issues involved more so. I’ve written about Padilla elsewhere. Padilla was arrested in Chicago by the FBI and is now in military custody. (South Carolina, not Guantanamo. Gitmo is the holding pen for the 600 or so non-Americans caught in the War on Terror). Hamdi’s case is different, as he was captured on the battlefield in Afghanistan. There may be room to acknowledge the government’s case regarding Hamdi; not at all, in my opinion, regarding Padilla.

What bothers me most is the relative lack of attention given these cases in the press. Padilla’s case is quite possibly the most clear-cut abuse of civil rights since Jim Crow, if not since the Japanese internment camps. Thank God it doesn’t hold a candle to those crimes in terms of scale—but it is the idea that we may be close to condoning the abuse that matters. It is the precedent that counts. Should Padilla lose his case, and the government gain the power to detain citizens without trial or access to a lawyer, who can say that there won’t someday be an abuse on the same scale? You may trust President Bush and Attorney General Ashcroft to wield the power justly and wisely—I actually do, though I still believe they should not have it—but no reasonable person can trust all possible future American Presidents with such sweeping power. Someday the next Nixon will be elected.

Is the continued detainment of Padilla—well after the government has long exhausted whatever intelligence value he might have had, and well after he stopped being an immanent threat to American security—worth the loss of our principals today and our freedoms tomorrow?