- The Washington Times - Monday, December 29, 2003

Prepare yourself for a petition by Saddam Hussein challenging the legality of his detention under the U.S. Constitution and international law in a federal court.

That startling zaniness is adumbrated by the decision of the 9th U.S. Circuit Court of Appeals in Gherebi vs. Bush (Dec. 18), which crowned enemy prisoners at Guantanamo Bay with a right to sue Secretary of Defense Donald H. Rumsfeld for alleged international or constitutional shortcomings concerning their detentions. Writing for a 2-1 panel majority, Judge Stephen Reinhardt deplored the prospect that enemy prisoners held anywhere in the world under U.S. auspices might be denied access to federal courts to present legal claims. Think of that outlandish doctrine as applied to Japanese or Nazi soldiers imprisoned in World War II, North Koreans or Chinese Communist combatants detained in the Korean War, North Vietnamese guerillas held during the Vietnam War, or Saddam, “Chemical” Ali, and sister wretches captured during Operation Enduring Freedom.

Faren Gherebi was apprehended in Afghanistan during the war against international terrorism. Beginning in January 2002, Gherebi and hundreds of other enemy prisoners were transferred for indefinite confinement to Guantanamo, a U.S. naval base in Cuba under perpetual lease. The captives are denied avenues to question their confinements or designations as illegal combatants, to consult with attorneys, or to advance claims of mistaken capture or identity.

Assertions of maltreatment at Guantanamo in light of customary wartime hardships and casualties seem trifles light as air. The International Committee of the Red Cross, after prisoner visitations, found mental depression their chief ailment. Approximately 80 captives have been released after vetting for intelligence or membership in a terrorist organization. As the Gherebi opinion noted, newspaper interviews were conducted with erstwhile Afghan and Pakistani detainees. Their worst gripe was that the uncertainty of their fate, linguistic isolation, small cells, limited protection from the elements and one-minute showers per week had excited multiple suicide attempts.

Mr. Gherebi sought relief from his battlefield capture through a habeas corpus petition filed before the U.S. District Court for the Central District of California. He demanded a statement of reasons for his detention; a determination that the conditions of his confinement violate the due process clause of the Fifth Amendment, the Eighth Amendment prohibition of “cruel and unusual” punishments, the Sixth Amendment right to counsel; and freedom to return to his previous vocation and residence. Mistaken identity was not alleged.

The district court dismissed the petition. It reasoned that the U.S. Supreme Court’s ruling in Johnson v. Eisentrager (1950) foreclosed federal courts from entertaining claims advanced by Guantanamo prisoners. In that case, German detainees imprisoned in Germany for offenses committed in China after Germany’s surrender were denied access to U.S. States courts to challenge the legality of their confinements. The Johnson opinion amplified: “We are cited to no instance where a court, in this or any other country where the writ is known, has issued it on behalf of an alien enemy who, at no relevant time and in no stage of his captivity, has been within its territorial jurisdiction. Nothing in the text of the Constitution extends such a right, nor does anything in our statutes.”

The alpha and omega of Johnson is that unelected federal judges shall not meddle in the military’s treatment of alien enemies captured on the battlefield or its equivalent. The place of their confinement is irrelevant. Suppose the German prisoners had been transferred to the United States for greater security. Nothing in Johnson suggests that the outcome would have been different. Distracting the military from killing and confining alien enemies by the necessity of gathering and presenting legally admissible identification, battlefield or confinement evidence to defend against a predictable train of endless prisoner lawsuits was the evil that informed the Supreme Court.

That rationale fits Gherebi’s habeas petition like a glove. He alleged, for example, that he was a prisoner of war as defined by the Third Geneva Convention, not an illegal combatant as declared by the United States. To resolve that dispute would require battlefield evidence of his dress, arms, insignia, and subjection to a higher command at the time of capture.

Judge Reinhardt flouted the thrust of Johnson. He insisted that Guantanamo was both U.S. territory and subject to its ultimate sovereignty under the lease terms with Cuba. In contrast, the Johnson prisoners were held in a German facility sporting British, French and American flags. But the distinction collapses under the fact that the United States was omnipotent in post-World War II West Germany. The British or French would have been powerless to resist anything the United States did to the German prisoners. Similarly, the United States, at present, is sovereign in Iraq. President Bush, through civilian administrator L. Paul Bremer, dictates Iraq’s domestic and foreign policies. Saddam Hussein and hundreds of companion Iraqi prisoners captured by the United States are every bit as subject to its control as are the prisoners held at Guantanamo. If the latter are entitled to sue Mr. Rumsfeld in federal courts, as Judge Reinhardt insists, then so are the former.

The circuit judge found shocking the claimed power of the president to detain during the war on global terrorism alien enemies captured abroad with no “right to challenge their detention in any tribunal anywhere, including the United States.” But it seems more shocking for a federal court to claim a power to summon the president and military personnel to adduce legally admissible evidence against every alien enemy prisoner showing the propriety of their treatment. As Supreme Court Justice and Nuremburg Chief Prosecutor Robert Jackson admonished, the Constitution is not a suicide pact.

Bruce Fein, an associate deputy attorney general in the Reagan administration, is an international constitutional consultant.


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