A response to Andy McCarthy: Citizenship and indefinite detention

At no time did I argue that aliens should be given the same rights as American citizens. That was not the basis of the debate of any amendment last week. Yet Mr. McCarthy uses this strawman throughout his article. When the facts are presented clearly to Americans — that their own rights and liberties are threatened under this sort of unchecked, unconstitutional executive authority — I believe they will side with keeping their liberty.

Supporters of indefinite detention believe the U.S. Supreme Court’s decision in Hamdi v. Rumsfeld supports their view. But while the court in Hamdi held that U.S. citizens captured in combat in Afghanistan may be detained, it also held that they must, at a minimum, be granted many of the traditional aspects of constitutional due process — including a “meaningful opportunity to contest the factual basis for th[e] detention before a neutral decisionmaker,” notice of the asserted charges, an opportunity to rebut the assertions, and, most important, the right to counsel.

Also, the court’s holding pertained only to U.S. citizens captured in combat in Afghanistan. Hamdi does not address non-combatants captured in the United States. The argument in Congress this week was about whether we should expand the possibility of indefinite detention to include U.S. citizens accused of association with terrorism. This could conceivably apply to non-combatants. This could also conceivably include U.S. citizens falsely accused of association with terrorism.