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Excerpts from the Preface and pages 136-138
As it turned out, Lindh was not the only American
Taliban. Several other young Americans have also adopted
militancy and violence in the name of Islam, and at
least two have emerged from the shadowy world of al
Qaeda to be confronted with their own legal battles.
Yaser Esam Hamdi and Jose Padilla were “out of school,
unemployed, loose molecules in an unstable social fluid
that threatened to ignite,” according to Robert D.
Kaplan.
Another analyst, Dr. Don Beck, expanded on the growing
instability of this disenfranchised segment of the
population Kaplan was referring to:
Here is a simplistic, seventh-century, puritanical, and
closed value structure that is locked in a pre-modern
mind-set. Unhappily, it’s the next step for millions of
youth who have been shut out, frustrated, and left
behind as they see their counterparts, both next door,
and in other societies, thriving and prospering. And it
transcends racial or ethnic categories, which is why it
is such a threat.
Yaser Esam Hamdi was born in Louisiana, raised in Saudi
Arabia, and detained in the United States while his
suspected ties to al Qaeda were investigated. It seems
that Hamdi, armed with a Kalashnikov rifle, had been
captured in Afghanistan in December 2001 when his
Taliban fighter group surrendered. At that time, he told
military investigators that he had come to Afghanistan
several months before to train and fight with the
Taliban.
Initially airlifted to the U.S. Marine base at
Guantanamo Bay, Hamdi was transferred to a military jail
in the United States after his claim of birth in
Louisiana was confirmed. Secretary of Defense Donald
Rumsfeld quickly determined that Hamdi had been both
armed and fighting with enemy forces on foreign soil,
and President Bush classified Hamdi as an “enemy
combatant” and confined him indefinitely to the American
military prison camp.
Hamdi’s lawyers, who had not actually talked to him,
argued that his Fifth Amendment rights were violated.
The Fourth Circuit Court of Appeals disagreed, twice.
The law is clear that trial judges are obliged to accord
“great deference” to the executive branch’s
classification of men like Hamdi as enemy combatants. Is
Hamdi entitled to remain silent and to the presence of
an attorney? Those questions were submitted to the
United States Supreme Court in
Hamdi v. Rumsfeld.
In June of 2004, the Court handed down a partial answer
to these questions. The Court held that Hamdi’s
detention for two years as “enemy combatant” held that
his detention was proper and could be continued but that
he had a right to challenge the justification for his
detention (i.e., his status as an enemy combatant)
before a neutral decisionmaker.
Jose Padilla, born in Puerto Rico but raised in Chicago,
was also detained in the United States while his alleged
attempt to detonate a “dirty bomb” was investigated.
Padilla had changed his name twice - first to Ibrahim
and then to Abdullah al Muhajir, which means “the
emigrant” - to reflect his affiliation with Islam. By
the time he became infamous in American society, he was
a Chicago street-gang member, an ex-convict, and a
convert to Islam. Georgie Anne Geyer of the Tulsa
World described him as “an immigrant between
ideologies, between ways of life and surely between
loyalties.”
Padilla had served time in jail in both Chicago and
south Florida before moving to Egypt, then to Pakistan,
and finally to Afghanistan as part of the al Qaeda
network.
On May 8, 2002, he was arrested as he stepped off a
plane in Chicago after flying in from Zurich and was
held for an indeterminate period in military custody as
a suspected terrorist. In alleging that Padilla belonged
to an al Qaeda cell that had plotted to detonate a
radioactive explosive device in the United States,
government officials reported that Padilla had discussed
the bomb plot with al Qaeda leaders in Pakistan and
Afghanistan.
Defense Secretary Donald Rumsfeld said the government
wanted to question, rather than prosecute, Padilla.
It is, of course, the government’s duty to protect its
citizens and prevent al Qaeda terrorists from delivering
the nuclear devastation that they have threatened.
Consequently, following Padilla’s initial detention at
O’Hare, federal agents subpoenaed him to testify before
a grand jury. When he refused, President Bush declared
him an “enemy combatant” under the War Powers Act. This
subjected Padilla to arrest, not as a suspect but as a
material witness.
Under the War Powers Act, a material witness can be held
indefinitely. In Rumsfeld v. Padilla, the Court
held that Padilla had filed his habeas petition
in the wrong court. Presumably, when Padilla re-files
his petition in the right court, he will be given the
same rights as Mr. Hamdi.
The larger question of the extent to which domestic
Miranda rights should be respected on foreign soil
or on American sovereign territory is the subject of an
important Supreme Court opinion handed down at the end
of the Court’s term in June of 2004. In Rasul v.
Bush, the Court held that non-citizen detainees held
at the U.S. naval base at Guantanamo Bay, Cuba, have a
right to file habeas corpus petitions in federal
courts to challenge the legality of their detention.
Justice Sandra Day O’Connor is as close to these large
questions as anyone could possibly be. She is at the
center of the Court and the center of American thought
when she says, as she did in the Hamdi case, “Striking
the proper constitutional balance . . . is of great
importance to the nation during this period of ongoing
combat. But it is equally vital that our calculus not
give short shrift to the values that this country holds
so dear or to the privilege that is American
citizenship.”
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