‘Ex Parte Hentoff’

Re: “Ex Parte Hentoff” [Editorial, November 2, 2006], I am chided for “fretting” over the possibility that in this war — with no discernible end — the Military Commissions Act of 2006 can give presidents precedent for invoking the treason clause in Article III of the Constitution against a range of suspected terrorists who are American citizens. The new law gives the president the authority to charge — under an expanded definition of “unlawful enemy combatants” — non-citizens and American citizens, for “purposely and materially supporting” the enemy. This language partly mirrors the “giving aid and comfort” to the enemy in the Constitution’s definition of treason.

It is far from inconceivable that permanent legal alien residents of the United States could be included as enemy combatants for contributing, for example, to charities they did not know were linked to terrorists. As in the cases of Yaser Hamdi and Jose Padilla, American citizens already have been imprisoned for long periods of time as enemy combatants without the due process to defend themselves — as later mandated they should by the Supreme Court in

Rasul v. Bush and Hamdan v. Rumsfeld. Both decisions overturned by the 2006 Military Commissions Act.

Due process is vital because, according to the Constitution, proving treason committed by American citizens requires “the testimony of two witnesses to the same overt act, or on confession in open court.” Such witnesses could have been interrogated “coercively.” Non-citizens under the new law have been stripped of habeas corpus rights to contest either their alleged “confessions” or testimony of witnesses to the defendant’s acts of terrorism — witnesses against them who may be imprisoned in CIA prisons and not available in court.

The rules of evidence in this new law for trials of these “unlawful enemy combatants” — including American citizens — allow hearsay evidence obtained from “coercive” interrogations, which — as proved in the past — can include torture. The new law prohibits torture, which it doesn’t define, but allows the trial judge to nonetheless admit products of “coercive” interrogation if he finds them useful.

Furthermore, the president is under the law a significant arbiter of the rules of evidence as they relate to torture. Under the new definition of “enemy combatant,” American citizens, who may be charged with treason for supporting the enemy, will have limited habeas corpus rights, unlike non-citizens charged with terrorism but not treason. But if “confessions” are obtained, Justice Department filings in federal district court on October 26 forbid all terrorism suspects held in CIA secret prisons — legitimized under the new law — to reveal what President Bush calls “alternative investigative techniques” used to extract “confessions.” This turns due process upside down for alien defendants without habeas rights — and for American citizens charged with treason.

The Sun’s editorial approvingly quotes Chief Justice Marshall’s ruling defining treason in an 1807 case. It omits a caution by Marshall that is particularly relevant now across the centuries. Marshall wrote: “It is more safe as well as more consistent to the principles of our constitution that the crime of treason should not be extended by construction to doubtful cases.” The prospect of doubtful treason cases abound under the Military Commissions Act signed by the president.

NAT HENTOFF
New York, N.Y.

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