presidents, war, and *statutes*
whoooo26505 at yahoo.com
Wed Dec 21 11:54:45 PST 2005
Well, I would have to concede the point that a false accusation resulting in the classification of a person as an enemy combatant would indeed be an immense harm. What is troubling about such a thought is that Quirin says you can be an enemy combatant by being a non-citizen captured here while committing terrorism on behalf of an enemy regime during war; Hamdi says you can also be one if you are a citizen fighting on the wrong side of the war in the state where the conventional fighting exists (Afghanistan). So I suppose that if one were a non-citizen over here and falsely accused of being an enemy combatant, the harm would be quite devastating indeed.
But all of this strengthens my theoretical view that we need to reconsider how the civil liberties regime is constituted so that we can afford proper protection of liberty while having proper detection of enemy terror at the same time. The theoretical idea with which no one on these lists should disagree is that law must fit society. I believe it would be beneficial to allow violations of privacy where the injury is primarily phenomenological if doing so: (a) results in greatly enhanced capacity to find and capture covert terrorist operations; (b) does not result in the evidence being used as evidence to prosecute non-terrorist (ordinary) crimes; (c) does not result in the information collected from being published or used for any other purpose than the war on terror; and (d) and affords all the protections to people accused as terrorists that are given to ordinary criminals, once caught.
I think rational people could come up with such a piece of policy. I will also note one other change in my view: Marty was right; we should use the democratic process to do this.
Harry Pohlman <pohlman at dickinson.edu> wrote:
if evidence from NSA warrantless surveillance becomes the basis for a
FISA application, then it could easily result in a criminal
prosecution. moreover, although we don't know if this has happened
or not, such evidence could also be the basis for designating someone
an enemy combatant and placing him or her in indefinite military
detention. in other words, an American citizen could be deprived of
his liberty without due process of law based on evidence obtained in
violation of the 4th Amendment, even though the writ of habeas corpus
has not been suspended. i would call that a rather serious consequence.
Dr. Sean Wilson, Esq.
Penn State University
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