- The Washington Times - Tuesday, January 14, 2003

The U.S. 4th Circuit Court of Appeals for the spoke impeccably in Hamdi vs. Rumsfeld (Jan. 8, 2003) in broadly sustaining war powers of President George Bush to crush al Qaeda, Taliban, and global terrorism generally, including the indefinite detentions of illegal combatants captured on the battlefield like Yaser Esam Hamdi. Chief Judge Jay Harvey Wilkinson amplified that the Constitution confines the judicial branch to squinting at theater war tactics of the president. Any harder look would stray beyond judicial competence and stifle the military's objective of killing and defeating the enemy. Accordingly, the chief judge reasoned, no more evidence was needed to detain Hamdi indefinitely than an uncontested declaration by a Defense Department official that he was captured in a zone of conflict in a foreign theater of war.
The Constitution salutes war victories, not defeats or stalemates. Article I, section 8, empowers Congress to raise and support a military. Article II, section 2, commissions the president as commander in chief. The two elected branches are responsible to the people of the United States for waging war, and doing so successfully.
Without that heavy responsibility, the judicial branch correctly shies from second-guessing battlefield decisions. What may be necessary for victory or thwarting a second edition of September 11 is characteristically unknowable, as Leo Tolstoy's "War and Peace" confirms. Judges are also incompetent to appreciate combat chaos and the intangible dynamics of triumph or defeat. Wars are fought, moreover, to preserve the individual liberties the judiciary treasures. Judges are thus reluctant to handcuff war powers since the liberties of both the living and those yet to be born are at stake.
On the other hand, war powers do not erase the Bill of Rights. Some balance must be struck between military necessity and procedural protections necessary to prevent individual injustices. Generalizations must bow to case-by-case analysis since every war and enemy capture is unique. On that score, the Hamdi decision is untroublesome.
Despite the post-September 11 war against terrorism, President Bush and Congress have not disturbed the writ of habeas corpus: namely, the right to challenge in federal courts the legality of executive branch detentions. Hamdi has been detained as an illegal combatant by the United States since April 2002. In June of that year, his father petitioned on his behalf for a writ of habeas corpus in the United States District Court for the Eastern District of Virginia. The petition alleged that Hamdi, a United States citizen, had been captured in Afghanistan by the Northern Alliance, a coalition of Taliban opponents supported by the United States. In the fall of 2001, Hamdi was transferred into the custody of the United States in Afghanistan, and later indefinitely detained at the Norfolk Naval Station Brig in Norfolk, Va. The petition claimed that Hamdi's detention without criminal charges or access to a lawyer violated his due process rights secured by the Fifth Amendment.
The government answered with an affidavit from the special adviser to the undersecretary of defense for policy, Michael Mobbs. Its detail provided assurance that Hamdi was an enemy combatant, not a Good Samaritan mistaken for a jihadist amidst battlefield fog. According to Mr. Mobbs, military intelligence showed that Hamdi traveled to Afghanistan in approximately July or August 2001, affiliated with a Taliban unit, and received weapons training. When the Northern Alliance captured him he was holding an AK-47 rifle at the time his Taliban unit surrendered following a combat defeat. After shuffling among Northern Alliance prisons, he was transferred to the United States. Hamdi confirmed the particulars of his capture and enemy combatant status during custodial interviews, the affidavit maintained.
Its persuasiveness was strengthened by the absence of any motive for falsification. The military would be squandering resources by indefinitely detaining and unceasingly interrogating innocent bystanders. Moreover, Hamdi's habeas corpus petition itself acknowledged his capture during a military campaign by the Northern Alliance, and nowhere hinted at a case of mistaken identity as a Taliban fighter.
Due process, nevertheless, ordinarily affords detainees like Hamdi an opportunity to challenge the factual foundations of an incriminating affidavit to diminish further the risk of error. But the wartime circumstances of Hamdi's case would make that due process exercise nightmarish. The wayward district court, for instance, demanded further corroboration of Mr. Mobbs by government disclosure of copies of Hamdi's statements and interview notes; the names and addresses of all Hamdi interrogators; statements by members of the Northern Alliance elaborating the circumstances of Hamdi's surrender; and a list of the date of Hamdi's capture and all the dates and locations of his subsequent detention.
But when error is improbable and the urgency of wreaking havoc on enemy terrorists is great, should the United States military be required to traipse after Northern Alliance remnants scattered in mountains and caves or to advertise over Kabul radio for soldiers who remember the time, place and manner of capturing Hamdi? The question answers itself.
What the Hamdi decision rejected or left open was as important as what it declared. The court of appeals declined to endorse constitutional militarism. It denied that the president could detain any citizen as an illegal combatant with no judicial review on his say-so alone. It accepted the prospect of a judicial determination that the war against terrorism has triumphed, thus ending the constitutional justification for indefinite detentions. And it opined that Hamdi's case might have been different if he had been captured in the United States and not during active hostilities.
The United States remains the freest country in the world despite the stresses and strains of war and omnipresent threat of terrorist savageries. Nothing in the Hamdi ruling casts doubt on that plaudit.


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