The Legal and Moral Irrelevance of Citizenship in the “War on Terror”

Adam Serwer has an excellent piece about the House GOP stopping an important modification to the NDAA.   I would frame the issue differently, however:

At least it’s on the record: Most House Republicans support the indefinite detention without trial of American citizens.

This is, I suppose, a politically attractive way of framing the debate — certainly, one hears the idea that it’s uniquely bad to exercise arbitrary executive power against American citizens among the progressive blogosphere and its commentariat a lot. The only problem is that the citizenship status of terrorist suspects is legally irrelevant and, in my view, is also morally irrelevant. If someone is an enemy combatant, they aren’t entitled to ordinary due process irrespective of their citizenship status — American citizens fighting for the Nazis didn’t have to be read their Miranda rights. (Well, Miranda wouldn’t be decided for another 20 years, but you can see what I’m driving at.) Conversely, if someone is an ordinary criminal suspect, they can’t be arbitrarily killed or detained whether they’re American citizens or not. The Bill of Rights is a restriction on government power that doesn’t — and shouldn’t — make any reference to citizenship.

Fortunately, as Adam has pointed out before citizenship status is also irrelevant to the proposed bill, which deals with suspects picked up on American soil as opposed to American citizens. This is obviously a critically necessary restriction. The core legal difficulty is organized terrorism represents a grey area that is like ordinary criminal behavior in some respects but not in others, and I’m open to the possibility that the “war on terror” might require modified rules in some cases. In addition to the necessity of showing evidence to some independent body, however, another key condition of designated someone an enemy combatant rather than a criminal suspect is that they be beyond the effective reach of civil authorities. A terrorist suspect in rural Yemen presents a real dilemma. A terrorist suspect in the United States, however, is (regardless of citizenship status) a criminal suspect and should be treated accordingly.

Until the NDAA is modified along the lines of the proposed bill, it is unacceptable. Although I don’t have a lot of confidence that this will hold up as it goes up the appellate chain, this is why it was appropriate for Judge Forrest to block enforcement of the indefinite detention provisions.