“Mr. President,” U.S. Sen. Chris Dodd said in his floor speech before the congress voted to accept a Military Tribunals bill, “the Administration and Republican leadership would have the American people believe that the War on Terrorism requires a choice -- a choice that they seem to showcase every election cycle -- according to them, the United States government can either protect America or uphold the basic tenets upon which our country was founded -- but not both. I fully reject that reasoning.”
He is not alone in rejecting this reasoning. Many Republicans, and some Democrats who voted for the bill, would find fault with the either/or Dodd attributes to the Republican Administration and its leadership alone. Most often “enemy combatants” are not US citizens, though they may be. The question at issue is: Should non-US citizens be afforded the protections of the US Constitution, when they have pledged themselves to destroy both the United States and the Constitution that, Dodd seems to feel, should protect them?” Most non-partisan Americans would answer this question, “No.”
The either/or Dodd deployed in his speech is a rhetorical artifice. It may be possible both to protect America and to uphold the basic tenants upon which our country was founded, enshrined in our U.S. Constitution -- if one supposes that the rights mentioned in the Constitution apply chiefly to U.S. citizens. For instance, it may be argued that Americans have a constitutional right to habeas corpus; should members of foreign terrorist networks claim the same constitutional rights?
In his floor speech, Dodd suggests that habeas corpus should be made available to the 450 “so called enemy combatants” detained at Guantanamo in Cuba. But why should self defined enemies of the United States taken on the field of battle and imprisoned – particularly those informally associated with Islamic terrorism -- have the same rights as American citizens?
Very likely, Abe Lincoln, not generally thought to be an enemy of the Constitution, would have thought that citizens of foreign countries should not be vested with constitutional rights when they are engaged as enemies of the United States. On September 24, 1862, Lincoln issued a “Proclamation Suspending the Writ of Habeas Corpus” because, he asserted, “disloyal persons are not adequately restrained by the ordinary processes of law from hindering this measure and from giving aid and comfort in various ways to the insurrection.” Lincoln’s suspension of Habeas Corpus deprived not only southern insurrectionists -- but also Northern draft dodgers who opposed the war -- of the right to hear in a court the charges that have been brought against them.
It may be important to place ourselves outside the rhetoric of partisan politicians and notice that a Military Tribunal is a court. The deprivations imposed by the Military Tribunals against foreign nationals engaged in war with the United States and it allies are less severe than those imposed by Lincoln; first because they apply to “enemy combatants,” and second because the bill does provide measures that soften these deprivations by providing for appeals beyond the Military Tribunal of original jurisdiction.
In addition to confusing the rights of American citizens with the privileges Americans may choose to afford foreign citizens, Dodd also misreads the significance of the Nuremberg trials. The Nuremberg trials, with which Dodd’s courageous father was associated, occurred only after Nazi Germany had been defeated. One could only imagine what Hitler would have done to foreign national living at the time in nations he had conquered if the allied nations had publicly tried important German generals before the defeat of Germany.
And of course the Islamic terrorists have left little to the imagination. Bad as he was, Hitler never sawed off with a dull knife the heads of captured prisoners – most often non-combatants – capturing the moment on films that would be circulated to people in the United States who, despite Dodd’s impassioned plea, would be loathe to provide such murders with the rights and immunities they despise.
One imagines Tom Dodd would have got these important distinctions; his son, exploring a run for the presidency this year, just doesn’t get it at all.