Professor Phillip Hamburger of Columbia University wrote an essay in the Columbia Law Review that has some interesting thoughts on the rights of foreign terrorists in the United States called 'Beyond Protection'.
Columbia Law Review - December 2009, Vol. 109, No. 8 - Beyond Protection
It is long and I admit I skimmed it and will read it in more detail later . But it looks to be worth serious attention.
Quote:
Do foreign terrorists have rights under American law? And can they be prosecuted under such law? These questions may seem novel and singularly difficult. In fact, the central legal questions raised by foreign terrorism have long been familiar and have long had answers in the principle of protection. This Article explains the principle of protection and its implications for terrorism.
Under the principle of protection, as understood in early American law, allegiance and protection were reciprocal. As a result, a person without allegiance was without protection, including the protection of the law. Not owing allegiance, such a person had no obligation to obey American law; moreover, not having protection, he had no rights under such law. This was the principle on which early American law dealt with enemy aliens and other persons who did not owe allegiance, including those who today would be called “terrorists.” The principle of protection still provides a valuable model for understanding a wide range of otherwise intractable problems. At a doctrinal level, it resolves important questions about habeas, prisoners of war, the power of the executive over enemy aliens, the jurisdiction of courts over foreigners and foreign lands, and the rights of unauthorized aliens.
The principle also provides a framework for understanding more general difficulties, including the legal strategies available to the government, the domain of national law in a multinational world, and the means of reconciling safety and civil liberty. In these ways, as illustrated by terrorism, the principle of protection is an essential foundation for a society that seeks to preserve itself from danger without undermining its liberty.
and it's final paragraphs read
He is advancing a legal theory that suggests the legal rights of the defendant vary according to the degree of his allegiance to the country he sets himself against.Quote:
the law is subject to at least two limitations: that the coercion of the law, including habeas and other legal process, is confined to sovereign territory, and that the obligation and protection of the law are confined to persons within allegiance. These limitations on the law’s domain stand in sharp contrast to some contemporary visions of “extraterritoriality,” in which the law has so open-ended a reach as to have no clear boundary—let alone a border consistent with ideals of consent or the practicalities of how nations defend themselves and their diverse choices.
Perhaps one day, the diversity and conflict among nations will come to an end. In the meantime a line must be drawn somewhere, delimiting not only the physical borders of nations but also the outer edges of their laws. The principle of protection, joined by that of sovereign territory, does much to draw this line with a combination of idealism and practicability, generosity and prudence.
He says that in fact the fonders were confronted with the issues we face today . But their solution is much different than is being adopted in the 21st century.
The founders saw a clear distinction between the rights of citizens and non-citizen . He uses the example of the internment of the Japanese Americans .He points out that as citizens their Constitutional rights were violated whereas the Japanese pow's were not. He says that by equating the rights of the terrorists with the rights of the citizen it becomes difficult if not impossible to fight terrorism without also eroding the rights of the citizen.By keeping their rights separated under law ;authorities can act against terrorists without undermining citizen's rights. Liberty and safety are preserved without compromise.Quote:
Imagine that Middle Easterners of dubious intent turned up in Virginia in 1785: What would the Founders have done? Would they have detained them without trial? Would they have interrogated them without allowing them access to lawyers? Would they have denied them habeas corpus? Would they have denied them habeas even if they were held within the United States? Would they have taken these measures against them even if they were acting on behalf of a nonsovereign power? And on what principle could the Founders have done all of this without violating the law? Astonishingly, the answers need not be hypothetical, for “Algerians” were in Virginia in 1785.
I have argued that it is an absurdly dangerous proposition to give Constitutional guarantees to enemies intent on destroying the nation . It appears that with the 'principle of protection' the founders had the same thoughts.Quote:
Although it may seem worrisome that the principle of protection excludes some individuals from legal protection, this is precisely how the principle preserves both safety and civil liberty … it allows the nation vigorously to deny such protection to persons who have not submitted to allegiance. The principle thereby permits the nation to defend itself without having to compromise civil liberties.
