By Jacob Sullum
For those who thought the Obama administration should have classified accused Times Square bomber Faisal Shahzad as an "enemy combatant" and tried him before a military tribunal, instead of arresting him and charging him in federal court, his U.S. citizenship is an inconvenience.
The law authorizing military tribunals for suspected terrorists does not apply to Americans (which was also true of the Bush administration's original military tribunal plan), and it is doubtful whether the Supreme Court would uphold military detention of a U.S. citizen arrested on U.S. soil (as opposed to a battleground in another country). Fox News performance artist Glenn Beck, showing his libertarian side, says:
He's a citizen of the United States, so I say we uphold the laws and the Constitution on citizens. He has all the rights under the Constitution. We don't shred the Constitution when it’s popular.
For what it's worth, Supreme Court Justice Antonin Scalia—who in Hamdi v. Rumsfeld said that unless Congress suspends the writ of habeas corpus, the U.S. government must either try an American citizen accused of bearing arms for the Taliban or let him go—would agree. But Sen. Joe Lieberman (ID-Conn.) has a solution:
Speaking on Fox News, he noted that existing law removes citizenship from Americans fighting for enemy militaries.
"It's time for us to look at whether we want to amend that law to apply it to American citizens who choose to become affiliated with foreign terrorist organizations, whether they should not also be deprived automatically of their citizenship and therefore be deprived of rights that come with that citizenship when they are apprehended and charged with a terrorist act," he said.
For Lieberman, then, there is no important difference between an enemy soldier captured on the battlefield and an American arrested in the U.S. on terrorism charges. I'd like to suggest one: Sometimes people accused of terrorism-related crimes claim to be innocent. Apparently that's not true of Shahzad, who according to press reports readily admitted leaving that Nissan Pathfinder packed with explosives in Times Square. But in a future terrorism case, a defendant might not only claim to be innocent; he might actually be innocent. That possibility is why we have trials, replete with all those pesky due process requirements, to begin with.
Under Lieberman's proposal, any American accused of links to terrorism would be presumed guilty, stripped of his citizenship, and locked in a military prison. He might get a trial before a special military tribunal, where a conviction would be easier to obtain, or he might simply be held indefinitely without charge. Even if he were tried and acquitted, he could still be held indefinitely. And the beauty of Lieberman's plan is that the government could do this to anyone, even if it did not have much in the way of evidence against him.
[The headline, by the way, is a reference to the argument that "terrorists don't deserve due process," which, like Lieberman's proposal, simply assumes that anyone accused of being a terrorist must be guilty.]
Addendum: My post was based on Lieberman's comments in the press. As Chicago Tom notes in the comments, Lieberman plans to introduce a bill that would implement his idea. The Washington Post's Greg Sargent reports that the bill would authorize the State Department to strip a terrorism suspect of his citizenship, but the suspect could contest that decision in federal court, where the burden of proof would be on the State Department "to persuade the court that [his] involvement with a terror organization is sufficient to justify taking away [his] citizen status." But unless it's easier to make that case than it would be to obtain a criminal conviction in federal court, Lieberman's proposal does not make sense as a way to avoid the requirements of due process. The bill is supposed to be introduced today, so I'll have more later.