- The Washington Times - Tuesday, November 5, 2002

War is hell in more ways than Gen. William Tecumseh Sherman intended.It creates hellish choices between clashing civil liberties, including the right to survive in a nation "conceived in Liberty, and dedicated to the proposition that all men are created equal."

To style the dilemma as individual rights vs. national security is a rhetorical trick that obfuscates more than enlightens.

At present, the due process rights of two American citizens designated as illegal combatants by President George Bush are undetermined by the courts. Yasser Esam Hamdi, captured on an Afghan battlefield, has been detained since last April in a naval brig. No formal criminal charges have been filed, and no access to a lawyer provided. The administration maintains that no judge may second-guess the president's designation, which consigns Hamdi to indefinite detention until the president declares the war against global terrorism has concluded. A second citizen, Jose Padilla, was designated an enemy combatant and arrested in the United States on suspicion of implication in a conspiracy to explode a high-radiation bomb.

It seems inconceivable that the Constitution crowns the president with unchecked power to designate any American citizen, (including you and me), an enemy combatant subject to long years if not life imprisonment until the millennium of a world purged of international terrorism. As Justice Robert Jackson, erstwhile chief prosecutor at Nuremberg, lectured in Johnson vs. United States (1948), in a democracy, police authority is under the law; in despotisms, the police are the law. Furthermore, neither Presidents Abraham Lincoln nor Franklin D. Roosevelt during their respective wartime ordeals asserted the absolute power which Mr. Bush claims, although the Civil War and World War II were far more threatening to national survival.

But to say Hamidi and Padilla are entitled to some due process leaves unanswered the more agonizing constitutional question of how much. The Supreme Court's wisdom is generally unedifying.

Chief Justice Charles Evan Hughes declared the power to wage war implies the power to do so successfully. That is sloganeering at its worst.

For example, no president is empowered to disband Congress and the federal judiciary on a claim of wartime necessity. The chief justice was matched by sloganeering in the other direction by Associate Justice David Davis 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 that any of its provisions can be suspended during any of the exigencies of government."

But national emergencies invariably occasion encroachments on individual liberties that would be unacceptable with no foreign danger.

Citizens may be conscripted to fight and risk life and limb despite moral compunctions or otherwise. And the Supreme Court scoffed at the claim in Selective Draft Law Cases (1918) that conscription violated the 13th Amendment prohibition against involuntary servitude. The Fifth Amendment requires the government to pay just compensation for the taking of private property. But the Supreme Court in United States vs. Caltex Inc. (1952) denied that compensation was required for property destroyed to prevent its exploitation by the enemy. In United States vs. Pacific R. Co. (1887), Associate Justice Stephen Field, speaking for a unanimous court, elaborated on the sacrifices war demands from all: "The destruction or injury of private property in battle, or in the bombardment of cities and towns, and in many other ways in the war, had to be borne by the sufferers alone as one of its consequences. Whatever would embarrass or impede the advance of the enemy were lawfully ordered by the commanding general. The necessities of war called for and justified this. The safety of the state in such cases overrides all considerations of private loss."

And then came the September 11 abominations. In its wake, sons and daughters have been dispatched to Afghanistan to extinguish the satanic source. Some have died, others have been injured, and all confront daily martyrdom for a noble cause. In the United States, the civil liberties of citizens to travel without fear or random invasive searches have been curtailed. Gaiety has fallen and fear has climbed in countless families and communities.

These observations provide clues as to due process for Hamdi and Padilla. Their indefinite detentions are unquestionably more jarring to civil liberties than are property losses, warrantless searches, or conscription. On the other hand, the two cannot expect the same due process protections afforded criminal defendants in peacetime.

Neither has been charged with crime. The reasons for their detentions are compelling: to collect intelligence helpful to thwarting new editions of September 11 or saving the lives of our brave soldiers; and, preventing their return to the ranks of the enemy. A criminal prosecution may be infeasible because disclosing the incriminating evidence may imperil national security.

Moreover, trial procedures generally favor the accused on the theory it is better that many of the guilty go free than that one innocent suffer: proof beyond a reasonable doubt; exclusion of reliable but illegally seized evidence; a right to silence; and, a right to confront all adverse witnesses. When the lives of tens of thousands during wartime are at stake, however, the risk of letting even one enemy combatant go free terrifies.

Experience teaches, nevertheless, that presidents may err in spotting citizen disloyalty or treason. The World War II Japanese-American concentration camps are illustrative.

Thus, due process should require an ex parte arrest warrant based on probable cause issued by a federal court either before or immediately after apprehension of a citizen designated an enemy combatant by the president.

The incriminating evidence should be presented in camera, sealed from public view, and kept from the detainee to protect national security.

This constitutional solution disappoints by still risking injustice, but no more so than war itself as a solution to international danger.

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