COMMENTARY: Soldiers or criminals?

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By Bruce Fein

Speaking for a 5-4 majority in Boumediene v. Bush (June 12, 2008), Justice Anthony Kennedy tacitly asserted that international terrorists were more criminals than soldiers when measured against their threat to the sovereignty of the United States.

Accordingly, the court held that Guantanamo Bay detainees held for life without accusation or trial as "unlawful enemy combatants" were entitled to test the legality of their detentions in federal civilian courts through the constitutionally enshrined Great Writ of habeas corpus. It epitomizes an unflagging commitment to differentiate between the guilty and the innocent - the hallmark of every civilized nation. It may be suspended only when "in Cases of Rebellion or Invasion the public safety may require it." International terrorism is a great evil - like mass murderers or serial killers - but not tantamount to rebellion or invasion.

In a dissenting opinion joined by Chief Justice John Roberts and Associate Justices Clarence Thomas and Samuel Alito, Justice Antonin Scalia insisted that granting Guantanamo detainees access to habeas corpus "will almost certainly cause more Americans to be killed." An identical complaint, of course, could be levied against every limitation on the government's power to detain, to punish, to interrogate or to search, including the extension of the Great Writ to the likes of Oklahoma City bombing terrorist Timothy McVeigh, the Unabomber, or convicted terrorists Ramzi Yosef and Zacarias Moussaoui. If the Constitution's summum bonum is to diminish the risk of an international terrorist incident to zero, then China's police state should be the model for the United States. The 2008 Summer Olympics in Beijing will be terror free, but equally free of freedom.

Justice Scalia maintained that, "America is at war with radical Islamists." As proof, he recited a litany of grisly terrorist incidents over the last 25 years: the Marine barracks bombing in Lebanon; Khobar Towers; the Kenya and Tanzania embassy bombings; the USS Cole in Yemen; and, the Sept. 11, 2001, abominations. The number of Americans and American allies killed in these incidents equals 3,374 - or an average of 135 per year.

In contrast, during that same period the annual number of murders in the United States fluctuated between 25,000 and 15,000, yielding a death rate more than 120 times the corresponding terrorism homicide rate compiled by Justice Scalia. But despite the frightening number of deaths caused by murderers, Mr. Scalia has not characterized America as "at war with murderers" and declared suspected or convicted murderers outside the protection of the Great Writ if they voice a craving for a caliphate in Washington, D.C. - even though habeas corpus has occasioned the release of prisoners who committed additional murders. Freedom is an illusion without the acceptance of risk.

Justice Scalia likened the "war" against radical Islamists to World War II. He thus concluded that a few hundred suspected unlawful enemy combatants at Guantanamo Bay deserved no more constitutional protection than did the 400,000 prisoners of war detained in the United States during World War II. Not a single one of the POWs was afforded a right to challenge his detention in a federal habeas corpus proceeding.

But to find an identity between international terrorism and World War II is like describing an elephant as a mouse with a glandular condition. World War II deaths exceeded a staggering 60 million. The Third Reich alone featured an army of millions with gifted generals like Edwin Rommel; a formidable Luftwaffe; a submarine fleet renowned for sinking American ships in the Battle of the Atlantic; scientific geniuses like Wernher von Braun building V-1 and V-2 rockets and thought to be developing a nuclear weapon; and, the enlistment of the entire German civilian population in war-related endeavors.

In contrast, al Qaeda's members participating in actual hostilities against the United States probably number in the thousands at most. It has no army. It has no navy. It has no air force. It has no Wernher von Braun. It has no power to conscript or to tax. It has no unity of command. The number of Americans killed by al Qaeda over the last 25 years is vastly less than 81,000 American deaths in the Battle of the Bulge alone.

Habeas corpus is most compelling when the probability of erroneous detentions is high. Prisoners of war typically were captured fighting in uniforms with distinguishing insignia and on well-demarcated battlefields. The likelihood that the United States would mistake an innocent civilian for a member of Adolf Hitler's Waffen SS was inconsequential.

On the other hand, al Qaeda members do not fight in uniforms. They do not carry weapons openly. They blend into civilian populations. And irresistible bounties were offered in Afghan chiefs and tribes to find and deliver al Qaeda adherents to the U.S. military. Thus, both a former commandant and deputy commandant at Guantanamo Bay have opined that most of its detainees don't belong there.

Justice Scalia also stumbled in complaining that, "What drives today's decision is neither the meaning of the Suspension Clause, nor the principles of our precedents, but rather an inflated notion of judicial supremacy." Boumediene was the product of President Bush's claims that the war with international terrorism is permanent; that every square inch of the planet - including the United States - is a battlefield where military force and military law may be imposed at the discretion of the president. In other words, unalienable rights to life, liberty and the pursuit of happiness are at the sufferance of the White House.

Bruce Fein is a constitutional lawyer at Bruce Fein & Associates and chairman of the American Freedom Agenda.