I’ve been conflicted over the idea of the President of the United States being able to declare a U.S. Citizen an “enemy combatant” and hold him/her without the “Privilege of the Writ of Habeas Corpus.” It bothered me so much that I decided to look into it myself. After all, the Writ of Habeas Corpus is an individuals sole means to prevent unlawful incarceration – that is, being arrested and detained without lawful reason or in violation of other laws or one’s personal rights. If you’re arrested and not given a “speedy trial” (such as it is these days) and not brought before a Grand Jury (as required by the Fifth Amendment: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury“), then you have the right to file a Writ of Habeas Corpus, and if your claims are valid (i.e. you were imprisoned without regard to due procedure) then you must be set free.
The Constitution provides, in Article I, Section 9, that:
“The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”
Let’s remember the “unless when in Cases of Rebellion … the public Safety may require it” clause as we move on, because this may be in doubt. Also remember that it’s not quite clear from the language whether the Writ of Habeas Corpus applies only to citizens, although we may assume it certainly does – and certainly other foreigners within the United States or its territories. Furthermore, who has the authority to suspend the Writ of Habeas Corpus? To answer that, we need only look to Article I, section 1 of the Constitution:
“All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.”
So, the ability to suspend the Writ lies with Congress. Unfortunately, President Lincoln issued an order to suspend the Writ during the Civil War, and Congress (later) agreed with him (although one Justice on the Supreme Court argued that he never had the authority in the first place). So, it seems that the President can suspend the Writ, if Congress approves – or at the very least, current case law would suggest such an interpretation.
Assuming, for the moment, that the President does not have the right to suspend the Writ (since, as far as I can tell, Congress has not officially “approved” of the suspension of the Writ, nor has the President officially ordered it suspended), we come to the question as to whether a person captured overseas with a bunch of (heavily armed) radical religious nuts is or is not a U.S. Citizen. If such a person can be held to have resigned their citizenship, then (presumably) the writ would not apply. But if such a person were held to still have their citizenship, then the Writ must apply, because the President has not ordered it suspended, nor has the Congress approved such an order nor given such an order itself.
Now, a U.S. Citizen, especially a naturally-born U.S. Citizen, cannot “lose” their citizenship easily. Title 8, section 1481, subsection a3 of the United States Code states that one can voluntarily lose their nationality by:
“…Entering, or serving in, the armed forces of a foreign state if (A) such armed forces are engaged in hostilities against the United States, or (B) such persons serve as a commissioned or non-commissioned officer…”
This only raises the question of whether a (heavily armed) group of radical religious nuts qualifies as “the armed forces of a foreign state” even though it is fair to say that “such armed forces are engaged in hostilities against the united states.”
This is an important question, because it is fundamental to my own objections on the phrase “the war on terror” (emphasis mine). I maintain that only the Congress of the United States has the power to declare war on a foreign state. This is upheld by the Constitution, Article I section 8, which says that “The Congress shall have the power … To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water“.
Furthermore, a (heavily armed) group of radical religious nuts does not, in my interpretation, constitute a foreign state – although if such nuts are in fact the militia of a foreign state (such as, oh, Afghanistan), then war on Afghanistan would be justified. Unfortunately, it does not seem possible for the Congress to declare war on all religious nuts where ever they may hide – especially when they all have different nationalities. To legitimize it, the Congress would have to declare war on all countries that have spawned such religious nuts – which is, as you might imagine, a political impossibility.
Getting back to the “Enemy Combatant” topic however, it seems that if:
- A U.S. Citizen was fighting in the (albeit loosely organized and only vaguely official) armed forces of a foreign country (i.e. Afghanistan) and;
- Such armed forces were clearly “engaged in hostilities against the United States”
Then such a person has indeed voluntarily resigned their citizenship, and can be held as an “enemy soldier,” as per the Geneva Convention.
So, as much as I hate to agree with Bush, in this case I must conclude that he was in fact acting within the law – despite what I believe was later ruled by a court. Of course, they may have picked a bit more at the “armed forces of a foreign country” bit and found it not valid. I admit it is a bit of a vague point in many places in the middle east.
Now, with that out of the way, I can turn at last to my pet peeve – the “war” on terror. Firstly, it’s total BS. As I’ve pointed out earlier in this post, “war” can only be declared by Congress. Furthermore, according to the Merriam-Webster dictionary, “war” is defined as “a state of usually open and declared armed hostile conflict between states or nations”. I submit that “terror” is neither a state nor a nation. Therefore, the very phrase “war” on terror is nonsensical.
A more appropriate phrase would be “the battle against terrorism,” because that is actually what we are facing. When right-wing nutcases spout out their favorite catch phrase “we are at WAR!”, I can only laugh. We’re not at war, because there’s no nation or state to be “at war” with, or for Congress to declare “war” on! We’re battling against radical Islamic fundamentalists, for sure, who utilize brutal tactics known as “terrorism” to further their (insane) agenda – of that there can be no doubt. But this is more of a religious “war” than anything else (and, may I add, nowhere is Congress nor the President granted the authority to declare Holy War).
So, whenever you hear the media or pretty much anyone say “the war on terror,” think about my argument for a moment, and realize that the person who says such a thing has no idea what they are talking about. Instead, perhaps politely remind that person that we are fighting terrorism, but that this is most certainly not a “war.” If we’re going to take on crazy people, let’s at least be sure we’re not spouting crazy nonsense ourselves.
Unless, y’know, the ability to speak properly isn’t really that important anymore. (And to listen to the President or Kerry – in fact just about any high-ranking government official – apparently it isn’t very important.)
Thanks for reading.
-Keithius
