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War on Terror Puts Blocks to Justice for All

2 July 2002

There's nothing like a good row over the Pledge of Allegiance to set off some early fireworks.

A California appeals court ruling that the words "under God" are unconstitutional ricocheted through the national psyche like some errant piece of shrapnel, piercing America's soul. Washington worked up a thunderous pander - sharp words from the president, a lopsided Senate vote in support of God, vows to amend the Constitution should hare-brained judges somehow succeed in severing God from country.

The ruling has been blocked from taking effect by the very judge who wrote it. No one expects it to stick. So "under God" seems safe.

And what of "justice for all?"

The war on terror unleashed an assault on the Constitution no one has yet seen fit to check. It began with the roundup and secret detention of hundreds of immigrants. They were Arabs and Muslims and not citizens at all, the public seemed to say, so why not find a way to be rid of them?

Now the dire predictions of those cranky civil libertarians have become official policy. The government contends American citizens have no legal rights, so long as the president says so.

This is what the administration argues in the case of Jose Padilla, picked up in Chicago on suspicion that he is a terrorist who discussed with other terrorists the possibility of setting off a nuclear device. He was held by civilian law-enforcement authorities for about a month and then - on the eve of a scheduled court hearing at which his right to a lawyer and other protections were to be argued - swept off to a military brig.

That is where he sits. He is not charged with any offense and not allowed to meet a lawyer. The government has no intention of bringing a case against him, just keeping him for intelligence questioning.

This is where Yasser Esam Hamdi sits, too. He is an American citizen raised in Saudi Arabia, initially held at Guantanamo Bay with the other "enemy combatants," then transferred to a military jail once his captors discovered Hamdi was born in Louisiana.

The two are to be held indefinitely, the government argues, because the president and his military men want to hold them. It is, the Justice Department said in a brief for the Hamdi case, the word of the commander-in-chief that determines who is, or is not, an "enemy combatant" and without legal rights.

"[T]he Court may not second-guess the military's enemy-combatant determination," our government argued.

No detainee may offer evidence in dispute. No detainee, not even a citizen, may have a lawyer. There is no role for courts, the branch designed for checking and balancing the others.

There is a term for political systems in which the military makes the rules. It is martial law. So far it has not been declared. Not even war has been declared.

This is a different kind of war, we are always told. And President George W. Bush is probably right that Padilla, a small-time hood before he allegedly fell in with terrorists, is a "bad guy."

But what, exactly, makes him worse - and so, undeserving of constitutional protection - than Timothy McVeigh? Why is this native son set apart even from Zacarias Moussaoui and Richard Reid? Moussaoui is a French citizen. He is to be tried in Virginia as the "20th hijacker," afforded all the protection of American courts. Reid is a British citizen. He is the so-called "shoe bomber," to be tried in Boston, afforded all the protection of American courts.

The logic of this war is indeed different. It allows the president to apply the Constitution to foreigners, but not to citizens he dislikes. The reasoning gives John Walker Lindh, the soul-searching suburbanite picked up on the Afghan battlefield, greater civil rights than his countryman, the urban street gang veteran Padilla.

But if we are tearing up the Bill of Rights due to national emergency, shouldn't there be some consistency in the ripping? The seat-of-pants approach cannot lead to clear and supportable policy, only to cynicism and fear.

A bittersweet Independence Day nears, the first Fourth since freedom came under attack. So how best to express our patriotism?

We may raise hand to heart and recite the pledge. Or raise questions about what has become of justice for all.

Marie Cocco
Published in the Long Island Newsday, New York © 2002, Newsday, Inc

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