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Thoughtful Criticism from a Reader

Gabe Rottman,
Legislative Counsel,
ACLU Washington Legislative Office
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May 7, 2007

David LaBrosse writes:

Unfortunately, while the suspension of Habeus Corpus is very disconcerting, we must first of all STOP!!! “ASSUMING” that the constitution applies to non-citizens, and foreign combatants. Our founding fathers had no intention of granting the same protections which citizens and legal residents are granted by the constitution to visitors, illegal aliens, and foreign combatants! Also, by the actual definition of the Convention of Geneva, ONLY the countries who signed the treaty at the time of it’s inception are those protected by it! AND, ONLY formal combatants of a signing country are protected. International criminals, insurgents, and terrorists were NEVER included in it’s agreements and tenants!!! Terrorists need to be hunted down, tried, and executed like the predatory vermin they are! I’m sure that if this note ever appears on your site, it will be removed promptly, since you really don’t care about a healthy debate of the issues, only your own subversive opinions.

Sir, not only am I going to retain your comment, I’m going to respectfully respond at some length because I think that reverence for civil liberties and due process is mutually inclusive with disgust for those who use wanton, indiscriminate violence against civilians to achieve political ends.We are a nation of laws. Those laws lay out the boundaries of civil conduct, and ought to rightly punish those who use terror as a perverse megaphone. But those laws also say that the executive branch may not become a law unto itself, even during times of military action and even when it concerns non-citizens. Habeas corpus is one of the primary safeguards against that happening. If that’s a subversive sentiment, then, by all means, color me radical.One additional clarification. Remember this debate is about how the current post-9/11 detainees get thrown in that black box of being an “enemy combatant,” which means they can either be detained until the end of hostilities in the “war on terror” (an undefined term if there ever was one) or tried in a military commission (the first of which gave accused Australian terrorist David Hicks nine months because he’d become an issue in the Australian election).We would certainly argue (forcefully) that, as a legal matter, any individual held in American detention ought to have a full and fair review of either their status as a combatant or their conviction if tried by a military tribunal (both of which are denied by the defects in the panels set up to determine combatant status, the annual review to determine if the detainee is a continuing threat and the commissions themselves). But I would also argue that the constitutional arguments (and any paean to original intent) should be considered alongside the simple fact that Gitmo doesn’t work as a matter of sound foreign policy.The one guy who took a plea will be free in less than a year, while those who maintain their innocence are stuck there until we stop fighting the “war on terror,” which is a concept as tactically open-ended as the war on drugs or the war on crime. Almost a hundred detainees, cleared for release, have yet to be freed. To be clear, the mantra around here isn’t just “close Guantanamo!” Quite the contrary. The mantra is: “close Guantanamo and charge or release the hundreds of individuals we have there.”Our post-9/11 detention policies have been a resounding failure. They have besmirched our proud history of giving those we suspect of even the worst atrocities a fair shake in court. They have spawned conspiracy theory after conspiracy theory, breeding cancerous anti-Americanism in exactly those parts of the world we need to reach out to. They cannot effectively distinguish between the evil and the innocent.And, they are unnecessary. We have a system already. She’s beautiful. She wears a blindfold—and carries a scale without a finger on it.[Incidentally, for more on the debate about what process is due the type of individuals detained at Gitmo, please see the recent testimony of Professor Denbeaux from Seton Hall Law School.]

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