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John Whitehead's Commentary

We Are All Potentially Enemy Combatants

John Whitehead
"There ought to be limits to freedom."--George W. Bush
The fabric of our nation is unraveling, and our freedoms are hanging by a thread.

In a world where the president has the power to label anyone, whether a citizen or permanent resident, an enemy combatant and detain that person indefinitely without trial, no liberty exists and everyone is potentially an "enemy combatant."

According to the Bush Administration, Ali Saleh Kahlah Al-Marri is such a person.

This legal alien, residing in Peoria, Ill., with his wife and children, was attending college when he was swept up by government agents. He was held in a military prison for four years without ever being charged with a crime. And for the first 16 months of his imprisonment, this man's family was not even allowed to see him, speak to him or reassure themselves that he was alive and well.

Because Al-Marri is not a U.S. citizen, the government denied him basic constitutional protections such as the right to hear the charges against him, consult an attorney and appear before a judge to determine if, in fact, he is guilty of anything. To some people, this is as it should be. But that's not the way things are supposed to work here in America. Even the worst criminals in American history, from flesh-eating Jeffrey Dahmer to terrorist bomber Timothy McVeigh, were afforded an attorney and a trial.

This issue is bigger than Al-Marri. It's even bigger than the Bush Administration and its so-called war on terror. The groundwork is being laid for a new kind of government where it will no longer matter if you're innocent or guilty, whether you're a threat to the nation or even if you're a citizen. What will matter is what the president--or whoever happens to be occupying the Oval Office at the time--thinks. And if he or she thinks you're a threat to the nation and should be locked up, then you'll be locked up with no access to the protections our Constitution provides. In effect, you will disappear.

Pandora's Box has been opened for presidents to become imperial presidents, which should terrify anyone with any sense of history. Sadly, few Americans are up in arms over the ramifications, let alone concerned that it might impact them in any way. "I'm a law-abiding citizen," one man recently remarked. "I have nothing to worry about."

That statement might have been true once upon a time, when a person was innocent until proven guilty and the judicial system could be relied upon to hear facts and ascertain truth. But such is no longer the case. We are now operating under a system of government where anything goes and everyone is suspect.

A recent ruling from a three-judge panel of the Fourth Circuit Court of Appeals seems to have provided a temporary reprieve from the fear that our constitutional republic is floundering. In a 2-1 decision, the court ruled that American citizens and legal aliens like Al-Marri must be afforded basic constitutional rights such as access to an attorney and a court and the right to not be imprisoned unless charged with a crime.

Even so, the courts will not be our savior on this one. The ruling will likely be overturned by the full Fourth Circuit, and the U.S. Supreme Court will probably uphold the reversal. So what do we do in light of that?

First, we must recognize that, at a minimum, the accused has the right to present his side to a judge and jury. We must remember that our Constitution protects "persons," not just citizens. Indeed, the Fifth Amendment guarantees that "no person" will be "deprived of life, liberty, or property, without due process of law." The Sixth Amendment secures our right to a speedy and public trial by an impartial jury, to be informed of the charges brought against us and access to a lawyer. Together, they ensure that the government cannot take our freedoms away unless they charge us with a crime, place us before a judge and jury and give us a fair opportunity to confront the witnesses and evidence presented against us.

Second, we must remember that America's reputation as a defender of the rule of law is worth preserving. At one time, the Statue of Liberty symbolized our commitment to fairness and liberty. Today, our military commissions and secret military detention camps represent America's hypocrisy.

Finally, the Bill of Rights ensures that no public official can by fiat declare us outside the boundaries of the Constitution. We must always be leery of government reactions to emergencies and crises because the government's natural response is to rein in liberty for safety. But as Benjamin Franklin once insisted, "Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety."

In the end, it always goes back to "we the people." It's up to each of us to decide what America should stand for and what is worth fighting for. It's up to us to elect public officials who understand and revere the Constitution. And it's up to us to set the standard of fairness that should be the basis of all we do.

Constitutional attorney and author John W. Whitehead is founder and president of The Rutherford Institute. His most recent books are the best-selling Battlefield America: The War on the American People, the award-winning A Government of Wolves: The Emerging American Police State, and a debut dystopian fiction novel, The Erik Blair Diaries. Whitehead can be contacted at Nisha Whitehead is the Executive Director of The Rutherford Institute. Information about The Rutherford Institute is available at

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