- The Washington Times - Monday, January 24, 2005

Last week, U.S. District Judge Richard J. Leon correctly held that the Constitution is undisturbed by the indefinite detentions of alien combatants captured abroad at Guantanamo Bay’s U.S. Naval base.

In Khalid vs. Bush (Jan. 19, 2005), Judge Leon did not quarrel with the Supreme Court’s ringing statement in Ex parte Milligan (1866): “The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than any of its provisions can be suspended during any of the great exigencies of government.”

But Milligan and companion cases also acknowledge that the constitutional power to conduct war entrusted to Congress and the president includes strategies or tactics reasonably necessary to crush the enemy.

The nation’s power to wage war commands a broad, not a pinched, construction. As Chief Justice John Marshall lectured in McCulloch vs. Maryland (1819): “We must never forget it is a Constitution we are expounding … intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs.”

As Judge Leon underscored in Khalid, no federal judge had ever previously been asked “to evaluate the legality of the executive’s capture and detention of nonresident aliens, outside the United States, during a time of armed conflict.”

He laudably resisted the opportunity to fashion a pioneering constitutional right for enemy combatants. The frolic would have been exploited by the likes of Saddam Hussein, “Chemical” Ali and thousands of other enemy wretches held in Iraq, Afghanistan or elsewhere. Other federal judges, in contrast, would have grasped at the chance of an avant-garde ruling hoping to be crowned with a Nobel Peace Prize.

Congress enacted a joint resolution empowering the president to use all “necessary and appropriate” force against every nation, organization or individual he determines was implicated in the September 11, 2001, abominations to prevent second editions. The president, in turn, authorized the defense secretary to detain persons reasonably suspected of membership in al Qaeda or of taking part in acts of international terrorism. The authorization has occasioned indefinite detentions at Guantanamo Bay of hundreds of enemy combatants captured on and off Afghanistan battlefields. Guantanamo, under perpetual U.S. lease, is technically subject to Cuban sovereignty.

At present, each detainee enjoys a right to challenge his enemy combatant status before a Combatant Status Review Tribunal (CSRT) with hedged procedural safeguards. Three have been released out of more than 300 with final decisions.

Before the CSRT’s creation, the military had released scores of detainees whose intelligence use had been exhausted and who would not fight against the United States. In a dozen or more such cases, the assessments proved faulty.

The seven petitioners in Khalid included five Algerian-Bosnian citizens, one Algerian citizen and one French citizen. They had been captured either in Bosnia or Pakistan. Their constitutional claims were preposterous: that Congress had not empowered the president to capture and detain enemy combatants for the duration of the terrorism conflict; and that the detentions violated a battery of constitutional rights, including due process, the right to counsel, the right to confront accusers and protection against cruel and unusual punishment.

The joint resolution of Congress did not expressly authorize indefinite detentions of enemy combatants. But neither did it expressly authorize use of aircraft or bullets.

As a concession to the shortness of life and economical expression, Congress employed terms commonly understood to include such routine methods of waging war. The Supreme Court was unambiguous in Hamdi vs. Rumsfeld (2004): “The capture and detention of lawful combatants and the capture, detention and trial of unlawful combatants, by universal agreement and practice, are important incident of war.”

The Hamdi Court added that an equally incontestable principle of the law of war justifies detention for the duration of hostilities. If that principle is to be altered due to the uniqueness of ending all global terrorism, the task is for the political branches, not for judicial ingenues.

The Constitution does not endow alien enemy combatants captured and detained abroad during war with rights to challenge asserted mistakes in civilian courts. Celebration of barbarity or ruthlessness is not the reason. The litigation, simpliciter, would cripple intelligence collection, distract soldiers and commanders in the field and boost enemy morale. Further, the probability of false negatives would be alarming because of the enormous problems in recreating battlefield captures.

Interrogation and detention abuses have emerged from the terrorism war and conflict in Iraq. The political branches have responded without the prodding of a federal judge. The Ronald W. Reagan National Defense Authorization Act for fiscal 2005 directs that “no detainee shall be subject to torture or cruel, inhumane, or degrading treatment or punishment”; “the Defense Department must “continue to undertake corrective action, as appropriate, to address chain-of-command deficiencies;” but “the punishment of those in violation of the act is and should remain with the military and the military judicial process.”

The greatest good for the greatest number sometimes produces injustice. That unfairness, however, pivots not on avoidable malice, but on inescapable tragedy.

Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein & Associates and the Lichfield Group.

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