Professor Philip Hamburger at Columbia Law School, in his paper, “Beyond Protection” recalls the nearly forgotten doctrine of Protection in connection with the problem of terrorism. Protection (and my understanding of the term is doubtless imperfect as a layman) is apparently a legal theory in which the legal rights of the defendant vary according to the degree of his allegiance to the country he sets himself against. Professor Hamburger writes:
This Article explains the principle of protection and its implications for terrorism. Under the principle of protection, as understood in early American law, allegiance and protection were reciprocal. As a result, a person without allegiance was without protection, including the protection of the law. Not owing allegiance, such a person had no obligation to obey American law; moreover, not having protection, he had no rights under such law. This was the principle on which early American law dealt with enemy aliens and other persons who did not owe allegiance, including those who today would be called “terrorists.”
The early Americans had to solve actual problems involving foreign nationals “privately at war” with the United Status. Hamburger explains:
Imagine that Middle Easterners of dubious intent turned up in Virginia in 1785: What would the Founders have done? Would they have detained them without trial? Would they have interrogated them without allowing them access to lawyers? Would they have denied them habeas corpus? Would they have denied them habeas even if they were held within the United States? Would they have taken these measures against them even if they were acting on behalf of a nonsovereign power? And on what principle could the Founders have done all of this without violating the law? Astonishingly, the answers need not be hypothetical, for “Algerians” were in Virginia in 1785.
Its an interesting thesis, which runs counter to the modern tendency to diminish the difference between citizens and noncitizens before the law. The Supreme Court in Rasul v. Bush and elaborated in Boumediene v. Bush have granted habeas and other civil rights to anyone in a location under the “control” of the United States. And there are those who argue that this extension of rights has not gone far enough. Professor Hamburger says,
Some academic commentators go even further. David Cole argues against unequal treatment of citizens and enemy aliens. Yet rather than insist that “citizens and foreign nationals must be treated identically in every respect,” he makes the broader point that there are profound dangers in adopting dehumanizing conceptions of enemy aliens.
Professor Hamburger drily notices that the unjust wartime internment of the Nisei is often used to argue for the extension of rights to noncitizens when it should demonstrate the opposite. The internment of the Nisei was reprehensible precisely because they were citizens. As Americans, the Nisei had rights. Captured members of the Imperial Japanese Army did not have the same protection, at least not then. He takes pains to explain that tiered rights do not necessarily mean an open season even on terrorists. They still have some rights, just not all the rights of citizens. “It does not relieve the government of other, more restraining mechanisms … it does not excuse the government from its obligation to act in accord with the law.”
But while some lament the residual inequalities between citizens and enemy aliens, Hamburger argues that the elimination of the distinction has made it conceptually difficult to consistently and coherently fight terrorism. By throwing everyone into the same category, authorities are placed in a dilemma where effective and expedient actions against terrorism also have the effect of eroding the civil rights of the citizens. Since the same ruleset must apply to both, what is decided for one may influence the treatment of the other. By treating the two categories as separate, Hamburger argues, the authorities gained the ability to act against the one without undermining the privileges of the other. He argues that the authorities and the citizens both gain freedom by making the distinction.
Although it may seem worrisome that the principle of protection excludes some individuals from legal protection, this is precisely how the principle preserves both safety and civil liberty … it allows the nation vigorously to deny such protection to persons who have not submitted to allegiance. The principle thereby permits the nation to defend itself without having to compromise civil liberties.
Whatever the legal merits of the Professor Hamburger’s argument, common sense suggests that if the authorities are not allowed to treat the population as two different samples then the entire population will be treated according to some average. With authorities unable — or unwilling — to distinguish between population A and population B, the two will both be subjected to some kind of compromise restriction. Recently, a British newspaper complained that ordinary citizens were being questioned and their cameras inspected under Under Section 44 of the British Terrorism Act 2000. People taking pictures of Central London, even of a fish and chips shop or the pavement, have been accosted by policemen and summarily interrogated. The Daily Mail in an article dated December 12, 2009 wrote:
Section 44 gives police the right to stop and search anyone within certain geographical areas without the usual requirement of reasonable suspicion. It was brought in as a counter-terrorism measure. But, increasingly, members of the general public are complaining that because of it they are being treated like potential terrorists on reconnaissance missions. …
Jeff Moore, chairman of the British Press Photographers Association (BPPA), concurs. ‘It’s a constant thing. It’s particularly prevalent in London and around Westminster. … ‘There was one case of a professor of history who was stopped because he was taking a photograph of a park bench in South London, for goodness sake.’ …
Two weeks ago, BBC photographer Jeff Overs was standing outside the Tate Modern by the Thames in London, taking pictures of sunset over St Paul’s Cathedral, when he was approached by a policewoman and a community support officer who said they were ‘stopping people who were taking photographs as a counter-terrorism measure’. Overs was asked to give his name, address and date of birth and issued with an anti-terrorism stop-and-search form – this in a place full of people enjoying a classic view of the capital, many of them recording it on their camera or mobile phone. …
In April, two Austrians were taken aback when they were stopped at Walthamstow bus station in East London where, like so many millions of other visitors to Britain before them, they had been taking pictures of London’s famous red buses.
They were asked to delete their pictures and, unaware that police have no authority to enforce this without a warrant, they complied. … Alex Turner, from Kent, discovered the cost of questioning police authority in the summer, after he was stopped by two men on Chatham High Street while taking a picture of a fish and shop called Mick’s Plaice. … He took pictures of the two officers as they approached him – and was then arrested, held handcuffed in a police van for more than 20 minutes, searched, and interviewed by two plain-clothes officers.
The need to treat everyone identically will — whatever its legal justification — lead to some bizarre and even absurd situations. It’s interesting to consider whether the necessity of convicting Khalid Sheik Mohammed will lead to developments which may have unfortunate consequences for the rights of citizens or fortunate consequences for the rights of terrorists. After all, if they’re both the same thing, then everyone gets mixed up in the same gravy. Making citizens equal to outlaws engaged in private warfare against America creates effects in both directions.
Therefore, send not to know
For whom the bell tolls,
It tolls for thee.