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| 1 1 Introduction: The Citizenship Construct A Tale of Three Terrorists Imagine that you reside in a country not unlike the United States, with a similar cultural, economic, racial, and ethnic mix. As in many other countries , the events of September 11, 2001, dramatically changed the lives of the inhabitants of your land. Your country passed a series of special laws specifically designed to enhance national security, and has joined the United States in its military efforts in Afghanistan and Iraq. Your country’s law enforcement and military officials, in several high-profile arrests that captured the attention of the populace, took three suspects into custody who allegedly were involved in terrorist-related activities. While these arrests occurred at slightly different times and in different places, their commonality is that the alleged wrongdoers were citizens of your country. However, the commonality ends there. As events have unfolded, your country’s treatment of these individuals has varied greatly. Now, for the moment, put yourself in the place of each of these individuals. In the first arrest, you are a young Caucasian man who grew up in a fairly affluent area of your country. You were captured fighting for the Taliban regime in Afghanistan. As a teenager, you had discovered Islam and allegedly had come to adopt Taliban and al-Qaeda beliefs. You traveled to Egypt and Yemen to learn Arabic, trained for jihad in several training camps, and were said to have interacted with Osama bin Laden. After your arrest, you were not subject to the limited-rights regime pursuant to the special laws’ “enemy combatant” label. This label would have severely limited your constitutional rights and would have insured that you would have faced military and not civilian laws. You would have probably been detained in your country’s offshore military base that held all “enemy combatants” for an indefinite amount of time. You instead proceeded through your country’s traditional criminal 2 | Introduction: The Citizenship Construct system. The official spokesperson for your president declared that “the great strength of this country is you will now have your day in court.” Almost immediately after your arrest you had access to legal representation. You were able to meet with your family and had them with you throughout the criminal process. After engaging in fairly traditional judicial processes, such as a bail hearing and normal legal discovery procedures, you were allowed to decide whether you would enter into a plea agreement or fight the charges in a civilian criminal trial. After conferring with counsel and family members , you eventually entered a plea agreement, and you have begun to serve a twenty-year prison sentence. This treatment and the arrangement you eventually entered into was far more favorable than the potential of indefinite confinement as an “enemy combatant” or execution for treason. Now consider for the moment that you are the second individual arrested. You, like the first individual, were born in this country but are of Saudi Arabian descent (though you have never lived in the land of your parents and are largely unfamiliar with it). You were captured in Afghanistan allegedly fighting with Taliban forces. Unlike the first individual, you were immediately treated as an “enemy combatant” and were quickly sent to a military jail. Your government argued that because you are an enemy combatant, it could detain you indefinitely without formal charges or proceedings. Your government decided that you would only be allowed the due process and access to counsel it deemed necessary. After a lengthy confinement in a military jail without any hearing or even charges leveled against you, the Supreme Court of your land ordered that you were entitled to a meaningful hearing and demanded that your government either produce evidence of your crimes or release you. Your government never used your citizenship status as the basis for subjecting you to the traditional criminal laws and procedures of your land, as it did with the first individual. Instead, your government treated you as one of the scores of foreigners captured in Afghanistan. After weighing its options, ultimately your government declared that you no longer posed a threat to your country and offered you a plea agreement whereby, without ever being convicted of any crime, you would have your citizenship revoked, and you would agree to be deported to your parents’ native land. You would also be required to pledge never to return to the land of your birth. Left with few reasonable alternatives, you begrudgingly agreed and left...

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