California Bar Journal
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They don't deserve constitutional protections
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Peter J. Riga
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.