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War spawns new legal questions

What consequences face Americans such as John Walker who fight on the side of the Taliban? What constitutional protections are non-citizens entitled to? MSNBC’s Tom Curry explores the legal issues.
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What legal consequences face Americans such as John Walker who fight on the side of the Taliban? And with more than 600 non-citizens now being held in federal jails as a result of post-Sept. 11 terrorist investigations, what constitutional protections are those people entitled to? Here’s a guide to the issues.

What will happen to Americans such as Walker who fight on the side of the Taliban? Defense Secretary Donald Rumsfeld said Tuesday, “I do know a bit about the various (legal) options, and I have not landed on one at the moment.” He added that “you can be certain that he will have all the rights he is due.”

Appearing before the Senate Judiciary Committee Thursday, Attorney General John Ashcroft declined to comment on any potential prosecution of Walker or any “alleged crime committed by an American.”

But he said, “History has not looked kindly upon those that have forsaken their country to go and fight against their country.”

In theory, he could.

But the Constitution says in Article III, “No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.”

The two-witness rule might make it difficult to prove a case against Walker. He might be charged with some lesser crime.

When reporters asked Rumsfeld Tuesday whether Walker was a traitor, he replied, “I am not a lawyer and there are a lot of words people have for different categories of human beings that depend on their behavior. ... Until I’ve concluded what I think he ought to be called, I’m going to be as careful and cautious as I have been thus far.”

Perhaps. In 1942, after eight German saboteurs landed on the East Coast, the parents of one of the saboteurs, Herbert Haupt, harbored him in their home in Chicago. They were later tried and convicted of treason. That conviction was upheld by the U.S. Supreme Court in 1947.

In his comments Tuesday, Rumsfeld was careful to note that Walker “says he’s an American,” leaving open that possibility that he isn’t an American or that he has lost his U.S. citizenship.

According to the State Department, American citizens are subject to loss of their citizenship “if they perform certain acts voluntarily and with the intention to relinquish U.S. citizenship.” These acts include:

Taking an oath of allegiance to foreign country.

Serving in the armed forces of a foreign state engaged in hostilities against the United States.

One key question: Did Walker have the intention of relinquishing his citizenship when he joined the Taliban? If not, he likely still has U.S. citizenship.

What can the government do to non-citizens who commit terrorist acts, such as bombing a building or hijacking an aircraft? It has several choices:

Indict them on criminal charges. A non-citizen who is indicted receives due process rights such the right to trial by jury.

Put them on trial by a military tribunal. Such tribunals were authorized by President Bush in an executive order he issued Nov. 13.

Detain them and determine if they are in violation of immigration laws; for example, if they overstay a tourist visa, the attorney general could order them deported. Prior to deportation, the non-citizen would have a right to a hearing before an immigration judge.

Detain them without charging them with a specific crime. The Immigration and Naturalization Service can detain non-citizens for what Attorney General John Ashcroft has called “an additional reasonable time, if necessary, under an emergency, or in other extraordinary circumstances.”

Deport them for being a member of a terrorist organization or a threat to national security, either of which are grounds for deportation under current law.

According to Bush’s Nov. 13 executive order, how will military trials of non-citizens be conducted? Bush’s executive order does not spell out all the details. He has directed Rumsfeld to devise rules for the conduct of the tribunals.

Bush’s executive order does say that there must be “a full and fair trial,” with the accused having a right to lawyer. The military officers on the tribunal would act as both judge and jury. Two-thirds of the tribunal’s members would have to concur in order to convict the accused.

The tribunals could be conducted in secret if the president or defense secretary determines it necessary to protect classified information.

Bush’s executive order does not give those convicted the right to appeal to any court.

What precedent is there in American history for military tribunals to conduct trials of non-citizens in time of war? This practice has ample precedent going all the way back to George Washington in 1780 ordering a military tribunal to try Major John Andre, an officer in the British army who crossed American lines while in disguise to get information from Benedict Arnold. Major Andre was hanged.

Military tribunals were also used in the Civil War and World War II.

In the most recent similar case, President Franklin Roosevelt ordered the eight German saboteurs who landed on the coast of Florida and on Long Island in 1942 be tried by a military tribunal.

FDR told his attorney general, Francis Biddle, “I want one thing understood, Francis, I won’t give them up. ... I won’t hand them over to any U.S. marshal armed with a writ of habeas corpus.” A writ of habeas corpus is a court order directing officials to show cause for a suspect’s detention.

In that case, a lawyer for the Germans tried to get a writ of habeas corpus and fought the case all the way to the U.S. Supreme Court, which ruled unanimously that the men were “unlawful combatants” — soldiers who slipped into the United States wearing civilian clothes and posing as Americans. The court upheld the use of a military tribunal to try them.

Except for two of the saboteurs who turned state’s evidence, the Germans were convicted by a military court and executed on Aug. 8, 1942.

Can the government detain a non-citizen indefinitely if he poses a threat to American citizens? If the attorney general determines that the person poses a specific “risk to the community” or to national security, that person can be detained indefinitely.

But the person can ask a federal judge to issue a writ of habeas corpus. If the judge finds the person is being held without cause, he can order him to be let go.

However, in a decision last June called Zadvydas v. Davis, the Supreme Court declared that “terrorism or other special circumstances” might justify “preventive detention” of non-citizens.

Cases of terrorism might require the courts to give “heightened deference to the judgments of the political branches with respect to matters of national security,” the court said in a decision written by Justice Stephen Breyer.

Why does a non-citizen who is detained or about to be deported have any constitutional rights to due process of law? Because the Constitution and the Supreme Court say so. Both the Fifth and the Fourteenth amendments to the Constitution say that “no person” — not just American citizens — can be deprived of “life, liberty, or property without due process of law.”

In a long line of decisions going back to 1896, the Supreme Court has held that even though foreigners are not entitled to the full range of constitutional rights that citizens enjoy, they are granted some protections under the due-process clause of the Fifth Amendment.

Can the U.S. government use classified intelligence information to deport foreigners? Yes. In a law signed by President Clinton in 1996, Congress gave INS the power to arrest and deport non-citizens on the basis of evidence whose source and substance can be kept hidden from the person accused and from his lawyer.

INS must show the evidence to the immigration judge considering the deportation request.

Because the government may not want to reveal the sources of its information about the suspected terrorists or the methods by which the information was gathered. A deportation proceeding can be completed more quickly than a criminal trial.

Of course, there is a risk that once deported, the person may find a way to slip back into the United States and commit acts of violence against Americans — which is why the government is using its indefinite detention powers to hold more than 500 non-citizens being held on immigration charges.

Yes — in some extraordinary cases, naturalized U.S. citizens can be stripped of their citizenship through a process called “denaturalization” and can then be deported.

The government also can attempt to revoke a naturalized U.S. citizen’s citizenship if he obtained his naturalization by willful misrepresentation of important facts or if, after becoming a citizen, he indicated disloyalty to the United States by, for example, refusing to testify to a grand jury about subversive or terrorist activities.