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| Peter
J. Riga |
Up until very recently, I have agreed with the
ABA and other humanitarian and human rights groups that al Qaeda
fighters held at Guantanamo Bay and elsewhere were entitled to the
full protection of our Constitution and should be provided access to
our courts and lawyers. I am not now quite so sure. In fact, I am
opposed.
If you examine the Constitution carefully - and
I have taught constitutional law - it was created to insure against
abuses and oppression by the government. Thus, the burden of proof of
beyond a reasonable doubt in criminal cases was directed against the
government. In fact, during the Civil War, the U.S. Supreme Court
decreed that Confederate prisoners could not be denied habeas corpus
as long as civilian courts were in operation. In other words, the
Constitution was made not just for civilian crimes but also for those
who by force of arms fought against the U.S. War is usually applied
force to bring about some political ends: to stop an action or
invasion, to oust a particular form of oppressive government, etc.
But what of the present situation? Al Qaeda and
other Islamic fundamentalists do not want to simply force the U.S. to
do or to stop doing such and such; they want to destroy and kill
everything American and "unbelievers" (i.e. non-Muslims). They
want to destroy not only our democracy but our very being, our way of
life, who we are. The Constitution was never made for such an enemy,
for such a group of men dedicated to our death and demise as Americans
and as non-believers in Islam. Our very freedom and existence is now
threatened in a war, literally, to the death.
This is a particular kind of war, total war whose
only outcome is the death (not just the defeat) of one of the other
parties. There is no surrender, no negotiation, no give and take,
since these bands of evil men want none of this. They want our death
and destruction. The Constitution is not and has never been a suicide
pact, nor an aid to those who want our death and will be satisfied
with nothing less.
Therefore, constitutional protection should not
be accorded to this band of evil men. They deserve humane treatment
both because they remain humans in being and because we owe it to
ourselves to respect them even if they do not respect us. But the full
protection of the Constitution does not belong to them because of the
very nature of this war and the nature of the Constitution itself.
I therefore have come to the conclusion -
reluctantly - that President Bush's idea of military tribunals
judging these men with less than the full protection of constitutional
freedoms is fully justified and in order. The Constitution was made
for those at least who shared some of our values (such as mutual
existence, co-existence, pluralism, varied freedom, human dignity,
life itself), not for those who for religious reasons want our death
and the death of our way of life by any means necessary to bring about
these ends. Quick military tribunals with less than a required
unanimity of decision, of less probable value than beyond a reasonable
doubt, admission of hearsay and the witness of protected informants
are fully justified because our very survival is at stake -
not our defeat, but our very existence as individuals and as a
people. You cannot use constitutional freedoms for a situation which
was never envisioned by that document.
Our survival is more important than the
Constitution because what good is a document of "We the People" if
we the people are no longer. It would be like the Jews fighting for
survival from the holocaust. The Nazis had to be either killed or
imprisoned forever. Who doubts that if those 19 hijackers of 9/11
could have killed all Americans by their act of "martyrdom" that
they would have done it? Therefore, there can be no constitutional
protection accorded these men and they must be incarcerated in a
secure facility for the rest of their lives. They must never again be
allowed the freedom of release because given their religious ideology,
they will conspire again to kill us as Americans and as infidels the
moment they are released. It would be a form of suicide for us to ever
again release them to anyone, anywhere for any reason.
I have come to this conclusion only after much
thought and agony because it seems to contradict everything I believe
in as an American. But the very first law of nature - beyond any
written law including the Constitution - is the law of survival both
as individuals and as a society. Only then can we speak of "the rule
of law." Law implies a sharing of common values. When the only thing
someone, my enemy, wants is my death, the only law is that of nature
and self- defense.
Military tribunals for members of al Qaeda with
less than full constitutional protections is not only desirable, it is
an imperative for our survival.
Peter J. Riga is a member of the State Bar of California who
practices in Houston.
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