The reporting, and accompanying conversation, is circling the case of Farouk Abdulmutallab, the Christmas Day, underpants, would-be bomber. The Washington Post has two articles here and here that beg us, once again, to question the interconnecting elements of terrorism with our Constitution - as well as our social fabric and the values and traditions celebrated by them.
You may read complimentary articles on Khalid Sheikh Mohammed's (KSM) trial from the NY Times, and/or the implications for our prison population (that I discussed previously in the link provided) from the Philadelphia Inquirer.
I propose beginning with the U.S. Constitution, in particluar Article I, Section 8, which establishes the right of Congress "to constitute Tribunals inferior to the Supreme Court." Moreover, the definition of "Piracies and Felonies committed on the high seas" should be understood to descriptively include Terrorism committed on land, seas, and air. Such an alteration can successfully give way to "make[ing] Rules concerning Captures on Land and Water" which shall also include airspace.
The intention and purpose is to provide the preservation of liberties and protection of their daily engagements of, by, and for U.S. citizens.
On this last point, cases such as Abdulmutallab and KSM's raise the importance of the possible utilization of habeas corpus if/when not suspended during terrorism trials. Article I, Section 9 states, "The Priviledge of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the Public safety may require it."
Please see legal information of U.S. Code, "the codification by subject matter of the general and permanent laws of the United States," pertaining to habeas corpus here.
It is clear in the language used by the drafters and signers of the Constitution that the Founding Fathers, Statesmen, and citizens framed their arguments according to the possible perils they faced on land and water. As such, the definition of "making rules" for capture followed the logic inherent in their own language. Thus, "terrorism" is not mentioned and/or defined simply because the trecherous activity was not in and on the minds of the US leaders and citizens.
As we all have known for some time, US leaders and citizens face threats unfamiliar and unimaginable to the Founders. In light of the practicality sought by the Obama Administration on matters of law and terrorism, it is of utmost concern to raise further questions bound to the aformentioned constitutional concepts.
Firstly, what is the meaning of the independent right to life as a US citizen, and the adjoining rights possessed by one's citizenship? Amendment XIV, Section 1 grants to citizens naturalized rights. If terrorists are granted miranda rights, tried in civilian court [and convicted or acquitted], then by default what other rights shall be granted to suspected terrorists? Common sense tells me that constitutional rights grant me equal protection of the laws, but that equality can not be shared by foreign, enemy combatants.
Secondly, shall the US provide comprehensive rights to suspected terrorists being tried in civilian court? Amendment VI grants persons being tried in criminal prosecutions, for example, the right to a speedy trial and public trial. This must be judged by an impartial jury. Shall we also, then, apply the Brady rule if a terrorist or his/her [public] defender think evidence was withheld? (Also see Brady and its probable implications for terrorism trials here and here). Common sense tells me that the circumstances particular to a US citizen's trial rightfully imply a speedy, public trial, but that presumption of innocence can not be prescribed to foreign, enemy combatants.
Thirdly, and lastly, if suspected terrorists are granted any amount of rights also held by US citizens (gained through birth or application), when are the accused terrorists in fact charged with treason as holders of US rights? Article III, Section 3 states that all persons "levying War...or in adhering to Enemies, giving them Aid or Comfort" shall be charged with treason. Common sense tells me that the Attainder/Conviction of treason leads back to the situation suspected foreign terrorists face in the first place: "The loss of all civil rights by a person sentenced for a serious crime."
It is important to note that an attainder can apply to both an individual and group. According to the Constitution, an attainder results in the sentencing of the convicted to death.
The argument is being made that "broad consensus" holds that terrorism trials are best decided on a case-by-case basis (pg. 5). Must we, then, form courts and complimentary structures, systems, and procedures to meet the demands of such variety? For example, what is the difference in trying US citizens compared to enemy combatants when considering Al-Awlaki, a US-born, AQAP, radical Islamic cleric? What ought we to say about or how ought we to decide on Nidal Hasan or Abdulhakim Muhammad?
Margaret Thatcher said in a 1981 speech, "To me consensus seems to be the process of abandoning beliefs, principles, values and policies in search of something in which no one believes, but to which no one objects—the process of avoiding the very issues that have to be solved, merely because you cannot get agreement on the way ahead."
Sadly, I think the deterioration of all US/Western economic and legal structures lies at the heart of the long-term strategic plan of AQ: It is what makes us great, and that which AQ seeks to attack. This method of deterioration that causes our confusion will increasingly be paired with direct attacks on the US homeland. We have the will and the power to prevent both; to protect, preserve, and prosper.