No Rights for Hostile Aliens - Part II

Part II - Rights for Hostile Aliens are Dangerous

In part one of this post, I argued that granting rights to hostile aliens is unnecessary, because such individuals are more properly represented by their home countries, and do not need or deserve access to the U.S. court system. But a more important case against such rights is that they are extremely dangerous. The creation of such rights damages the United State far beyond anything the Bush administration is supposed to have done.

Let's consider the obvious dangers first. Restricting flexibility in handling and holding prisoners will hamper our intelligence gathering and lead to the release of dangerous individuals, because of legal rules that were never meant to apply to such situations. Since intelligence is critical in stopping terrorist attacks before they get underway, the effort to grant hostile aliens legal rights automatically makes a such an attack more likely. In addition, this will be used as a weapon against the U.S. By granting active enemies access to our court system during times of war and conflict, we allow them to manipulate our own laws and legal processes to their advantage. And it goes without saying -- or it should -- that this is not in the interests of the U.S. When a hostile is captured, the fact that he will soon have legal representation and standing in U.S. court will need to be taken into account, as will the possibility that his release could be ordered by some civilian judge back in the U.S.. These calculations will almost certainly have a negative impact across the board on military and intelligence operations. In some cases they could lead to potential prisoners being killed instead of captured, in order to avoid legal entanglements.

But there are far more dangerous implications that may not be immediately obvious. The creation of new rights, or the extension of existing rights is a momentous step and should not be undertaken lightly -- as a form of backlash against the policies of an unpopular president. Executive branch methods of operation can be reversed by a new president. Congress can make new laws and throw out old ones. But once rights are created, along with the legal precedents that support them, they can almost never be taken away -- except by constitutional amendment. U.S. constitutional rights are critical to American freedom, and make the U.S. what it is today. Regardless of whether you think rights have independent existence through natural law, from God, or by way of other sources, in practice U.S. citizens have the rights that they do because our political system recognizes and supports them. In other words, our rights form a critical component of our nation which sets it apart.

Organizations such as the ACLU, most on the left, and many libertarians, have embraced an extreme concept of rights that completely ignores the benefits of American exceptionalism. They would have you believe that we need to extend our rights not just to legal alien residents of the United States -- which itself is highly debatable -- but to hostile aliens captured abroad during times of conflict. They like to claim they are just supporting the "rule of law," instead of pushing a radical new concept which includes an extension of judicial power into areas rightly governed by the executive. By the traditional and customary rule of law for much of history, many of the individuals in question are subject to summary execution without trial as illegal combatants. If these enemies have the same or similar rights as U.S. citizens, how much are U.S. rights worth? This entire concept is an attack on the fundamental nature of America and the value of U.S. constitutional rights.

Many Americans have already forgotten 9/11 for all practical purposes. They are apathetic or even mildly supportive of changes that seem to reverse the policies of an unpopular president. But what will happen if there is another major attack on the U.S.? Although it is extremely difficult to undo rights during peacetime, it is an unfortunate fact that rights suffer during wartime emergency situations. When the government, backed by massive public support, decides to infringe upon or even suspend certain rights, will it be a good thing that the constitutional rights of Americans are no longer anything special? Would it then be useful to have a clear & sharp distinction between the rights of American citizens and hostile aliens such as known terrorists?