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The Erosion of Individual Liberties: When Justice and Politics Become One

In the "War on Terror

In the “War on Terror,” I am amazed how every time our enemy takes action, it sets into motion a scramble by our government to take away the individual rights of Americans. Will we reach a point at which we will be completely stripped of our civil liberties in the name of eliminating danger from external threats?

I am hopeful that this won’t happen for two reasons. First, my travels have shown me that the world as a whole is closely scrutinizing American policies and behavior. Second, American history is replete with examples of the government making mistakes that went too far by denying rights or privileges to particular groups or individuals. In each instance, society stood against these practices and demanded the same rights for everyone, eventually returning the equilibrium in a way that could never have been accomplished by a single person.

Despite our victories of the past, unjust treatment of groups and individuals continues in the world we live in today. It is being played out every day at Guantanamo Bay and throughout America, where to be Muslim is to be suspect.

At Guantanamo, we have been detaining prisoners for nearly a decade without charges or trials, claiming that the detainees fall into a special category that allows us to treat them differently from the mandates of our justice system and our values as Americans. The presumption of innocence is one of the great hallmarks of the American judicial system. At Guantanamo, the government presumes the opposite. If you are caged there, you are guilty, and you will serve a life sentence, regardless of the evidence against you.

My client, Fayiz al-Kandari, is a Kuwaiti who has been held in a Guantanamo cage for eight and a half years. He is presumed guilty and, in all likelihood, will be held indefinitely as the Obama administration considers reinstituting the worst of the worst of Bush’s detention policies. The US government has not been able to prove Fayiz actually did anything, but it does not have to because he falls into a special category of prisoner – one with fewer rights than you or me.

Imagine for a moment that American citizens were locked away for more than eight years without charges or trials. Would we as a country allow that to happen? Well, until we refuse to exclude certain groups from the rights that protect all of us, we are headed in that direction. And this is as great a threat to America as any external force.

It is only a matter of time until the tables turn against us. America’s willingness to surrender a person’s right to justice and due process at Guantanamo will ultimately find its way to the rest of society, perhaps eventually affecting us all on a personal level. When men decide how the judiciary system will function based on popular or political consensus, we have become a land of men and not laws.

If we do not change course at Guantanamo, we could ironically find ourselves subject to the same rights as Guantanamo Bay detainees: none. It’s an extreme situation, admittedly, but what we are doing to individuals in US custody is no less extreme.

It is not just the US government that may overstep its bounds with American citizens. Any American who travels abroad should consider that, once the United States sets the precedent of indefinitely detaining individuals without any legal process, other countries will follow suit. Prejudice is not a one way street. During a recent trip to the Middle East, I was told that all Christians should immediately be jailed for infliction of terror around the world. How is this different from what Americans are allowing to occur at Guantanamo Bay?

Historically, laws expand in scope and almost never retract without express legislation to the contrary. It was for a reason that our founding fathers were particularly concerned with individual liberties. In their infinite wisdom, they recognized that it is the vulnerable citizens who need buffers to protect them against government overreaching, and that the erosion of rights is a slippery slope. This is precisely why they created the Declaration of Independence and the Bill of Rights.

The continued assault on our liberties will not only increase our feelings of insecurity; it will lead to more mistakes by the government that will result in fewer individual rights for Americans. We as a society must demand that the government not be allowed to interfere with our rights and that it prove every allegation against everyone it detains beyond a reasonable doubt – in a real court, in the light of day, for all to observe.

The views expressed in this article do not represent the views of the Department of Defense or the United States government.

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