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Rob Port responds to my riposte to his rebuttal of my earlier take on the Military Commissions Act.
I won’t prolong this disagreement with further point-by-points—except for one that seems crucial. Port writes: “I cannot fathom an American citizen being denied access to the civilian courts by a military tribunal.“ But that was precisely the question at issue in Hamdi v. Rumsfeld, which was a principal impetus for the MCA. Here is a summary by the Fourth Circuit’s Diana Gribbon Motz:
For more than a year, a United States citizen, Yaser Esam Hamdi, has been labeled an enemy combatant and held in solitary confinement in a Norfolk, Virginia, naval brig. He has not been charged with a crime, let alone convicted of one. The Executive [the president] will not state when, if ever, he will be released. Nor has the Executive allowed Hamdi to appear in court, consult with counsel, or communicate in any way with the outside world.
It’s tempting to assume the best intentions all around, and there are many in federal agencies (Jim Comey, formerly John Ashcroft’s No. 2 at Justice, for instance) whose intentions and integrity are beyond question. But cases of individuals such as Hamdi, Maher Arar, Murat Kurnaz, and other innocents wrongly held induce skepticism about others in this administration and future ones. And even if those cases didn’t, historical episodes such as the 1918 Red Scare and the Japanese internment in WWII ought to remind us of the dangers of overreaching in the name of security. If fellows such as Rob and other liberty-loving patriots were always in charge, I might be more complaisant. But the smarter course is to ask what those in power with less common sense and fewer noble intentions might do with the power granted to them—and how many more miles they might take if given another inch.
We didn’t need to lock up Japanese-Americans and Japanese immigrants to win WWII; we won with Fat Man and Little Boy and a lot of blood and guts on places like Mt. Suribachi. I’d rather win the war on terror the same way, without compromising the principles we’re fighting for.
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