Ahmad Khan Rahami, the Elizabeth, NJ man accused of planting and detonating multiple explosive devices across New Jersey and New York that injured dozens last weekend, will soon be transported to a New York District Court to face charges of bombing a place of public use and using weapons of mass destruction. And while many are glad that Rahami, an American citizen, was denied the release of death and will instead face a trial followed by a possibly very long imprisonment, Republican leaders want to take away his constitutional rights and label him an "enemy combatant."
The term was invoked by both South Carolina Senator Lindsay Graham and GOP presidential nominee Donald Trump earlier this week. In a message posted on his website, Graham argued that treating Rahami as an enemy combatant would lead to useful intelligence-gathering that would "help our nation understand how these attacks were planned and carried out," and potentially safeguard against future attacks.
"Holding Rahami as an enemy combatant to determine whether he has ties to terrorist groups, whether he was working for or funded by them, and whether there are co-conspirators, and then trying him in our civilian system for his terrorist acts is the best way to protect our country first, and then achieve justice," the Senator wrote, adding that he doubted the Obama administration would take such steps with Rahami, instead opting to, in his words, "criminalize the war."
Speaking at a campaign rally in Fort Meyers, Florida Monday, Trump repeatedly mentioned Rahami. "Congress should pass measures to ensure that foreign enemy combatants are treated as such," Trump said. "These are enemies, these are combatants and we have to be tough, we have to be strong."
Like most people who have been accused of terrorism-related crimes since 9/11, Rahami is a United States citizen, and designating him as an enemy combatant would preclude the administering of Miranda rights, allow for him to be interrogated without a lawyer, and allow his indefinite detention without habeas corpus. Former U.S. Attorney David Kelley—who prosecuted 1993 World Trade Center bomber Ramzi Yousef—brushed off the Republicans' demands as "absolutely absurd."
"To jeopardize our adherence to the rule of law for the possibility of such little gain is absurd,” Kelley told the Daily News.
If you turn in your hymnals to the Book of Rumsfeld, chapter 9, verse 11, you'll recall that "enemy combatant" was used as a label for captured members of the Afghan Taliban, Al-Qaeda, or "any person who committed a belligerent act or has directly supported hostilities in aid of enemy armed forces." The term was extended to not only foreign captives but U.S. citizens, and its ambiguity was exploited by the Bush administration as a means of keeping accused terrorists' location and treatment away from public view and outside the rule of law.
Enemy combatants became emblematic of the Bush administration's disregard for due process in 2003, when photos and reports of degrading abuse and torture of Iraqi and Afghan "enemy combatants" at the Army's Abu Ghraib prison were made public. Enemy combatants' rights (or lack thereof) were also at the forefront of the federal trial of Jose Padilla, a 36-year-old American citizen arrested in 2002 on suspicion of plotting a radiological "dirty bomb" attack. After President Bush ordered Padilla be labeled an enemy combatant, he was held for over three years in a Navy brig in Charleston, South Carolina—uncharged, allegedly tortured, and with no access to legal representation. Padilla's status was eventually changed back to that of a criminal civilian, and he was sentenced to 17 years in prison on conspiracy charges.
A 2008 Supreme Court ruling reasserted captives' right to access the U.S. Federal Court system. That decision, known as Boumediene v. Bush, made it possible for detainees held at America's Guantanamo Bay military prison to submit petitions to have their habeas corpus rights restored. However, many of those petitions have been denied by Appeals and Circuit Court judges, and Guantanamo remains open. In 2013 dozens of its prisoners were revealed to be "indefinite detainees." As a result, many have dismissed President Obama's 2009 decision to stop using the "enemy combatant" label as a meaningless gesture. "It's symbolically significant that he's dropped the term 'enemy combatant,' but the power to detain individuals within the 'indefinite detention without charge' paradigm remains substantially intact," Tom Parker, Amnesty International advocacy director for terrorism, said at the time.
Speaking at a campaign rally in February, Trump argued for a return to the Bush administration's treatment of accused terrorists. "Torture works. OK, folks? You know, I have these guys, 'Torture doesn't work!' Believe me, it works. And waterboarding is your minor form," Trump said. "But we should go much stronger than waterboarding."
If you're wondering whether you should "believe" the neon orange sociopath who has been torturing our national psyche this entire election season, please note that no, torture does not work.
Neither Graham nor Trump has publicly called for Rahami to be waterboarded, but the latter has bemoaned the fact that he will be getting a court-appointed lawyer.
“If you take an honest and fair look at it, treating suspects as enemy combatants has not resulted in more credible and actionable information than that taken in a normal course by law enforcement professionals in a criminal process," Kelley told the News. Rahami is currently being held in New Jersey and is due to be transported to the U.S. District Court for the Southern District of New York to face additional charges.