- The Washington Times - Tuesday, June 18, 2002

Presidential self-restraint is as pivotal to our democratic dispensation and civil liberties as is the judicial self-restraint that President George Bush applauds and champions. That wisdom deserves special heed during wartime, as at present, when congressional and judicial checks on the commander in chief are at their ebb.

As chief justice of the Supreme Court, Charles Evans Hughes lectured, the power to wage war is the power to wage war successfully. Thus, the high court has been exceptionally chary of second-guessing wartime actions of the president, including concentration camps for loyal citizens and permanent resident aliens of Japanese ancestry during World War II. The only exceptions have been nullifying President Harry Truman's seizure of steel mills during the Korean War in Youngstown Sheet & Tube vs. Sawyer (1952), and thwarting President Richard Nixon's attempt to enjoin publication of the Pentagon Papers during the Vietnam War in New York Times vs. United States (1971).

In sum, the federal judiciary cannot be expected to stymie wartime overreaching by the executive branch. Indeed, President Abraham Lincoln defied with impunity an order of Chief Justice Roger B. Taney sitting as a circuit judge in Ex parte Merryman (1861) that held unconstitutional his suspension of the writ of habeas corpus during the Civil War without authorization by Congress. (The writ enables a detainee to obtain judicial review of the constitutionality of his detention).

Generally speaking, President Bush has been commendably sparing in employing war powers to encroach on customary civil liberties. He has authorized military commissions to try war crimes by enemy aliens. United States citizens fighting for al Qaeda or other international terrorist organizations could have been included under the Supreme Court's decision in Ex parte Quirin (1942). Moreover, the president has yet to summon a single alien detainee in Cuba or elsewhere before a military commission.

And the detainees are treated de facto as prisoners of war under the Geneva Convention although they were illegal combatants, i.e., they wore no military insignia; they concealed their arms; they responded to no clear chain of command; and, they defied the laws of war themselves in targeting innocent civilians. President Bush has further desisted from seeking suspension of the writ of habeas corpus under Article I, section 9, clause 2 of the Constitution.

But worries loom. The indefinite military detention of suspected enemy combatant and United States citizen Jose Padilla (before his metamorphosis into Abdullah al Muhajir), is exemplary. All previous wars anticipated clear earmarks of termination when POWs uncharged with war crimes would be released.

Our war against international terrorism, in contrast, envisions no discernible end point. Indeed, the universal consensus acknowledges that terrorist incidents targeting the United States perpetrated by al Qaeda cells or lone rangers will never be entirely eliminated.

Further, no consensus has emerged over a benchmark that would signal victory over al Qaeda and its terrorism cousins akin to the Nazi and Japanese surrenders in World War II. In other words, our ongoing anti-terrorism war and accompanying war powers could persist for the ages at the whim of the president. That would be tantamount to life detention without trial for the likes of al Muhajir.

But it seems equally mindless to release an enemy combatant, whether a United States citizen or alien, bent on attempting a new edition of the September 11 abominations. And alternatives to detention may be unavailable. The combatant may be neither guilty of a war crime triable and punishable by military commission, nor sensibly subject to prosecution and punishment in a civilian court because required disclosures would expose intelligence sources or methods.

Indefinite military detention is not the only trouble spot. President Bush has declined to promulgate any evidentiary threshold for determining enemy combatant status. In the case of al Muhajir, the public case seems convincing. He had flown to the United States from Egypt tasked with scouting out possibilities for unleashing a radioactive "dirty bomb." He had converted to Islam. He had met in Pakistan with high al Qaeda operatives, including Abu Zubaida, learned the art of wiring explosives, and surfed the Internet to study "dirty bomb" options.

But what about future cases? Could the president simply pluck any United States citizen or alien as a suspect enemy combatant off the streets anywhere on the planet for military detention on his word alone, reminiscent of lettres de cachet which helped ignite the French Revolution? That prospect is frightening.

The best answers to these Hobson choices seems as follows. By executive order, President Bush should authorize federal public defenders to represent military detainees for the purpose of seeking federal habeas corpus review of their enemy combatant designations. The threshold of proof for the government should be substantial or probable cause. The hearing should be ex parte, as obtains for issuing arrest or search warrants, and the incriminating evidence should be sealed.

An executive order should further specify a reasonably discernable benchmark for presumptively ending presidential war powers incident to our anti-terrorism war, such as a five years without a terrorism conspiracy, attempt, or incident directed against the United States. But the benchmark should be subject to waiver for additional years if thought clearly necessary for the public safety.

If President Bush remains aloof from these legitimate civil liberties anxieties, Congress should enshrine these recommendations by statute. Part of waging war successfully is keeping our heads measured.

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