- The Washington Times - Tuesday, March 18, 2003

Unelected federal judges correctly shy from second-guessing war and war tactics. They are military ingenues; they hold no popular mandate; they are reared in a democratic culture that teaches deference to majority will as voiced through the president and Congress; and, they instinctively sense that our civil rights and liberties ultimately depend on defeating the enemy.
These unwritten but decisive influences generally confine federal judges to war issues peripheral to victory or the minimization of American casualties. Exemplary was the Guantanamo Bay ruling last week by the United States Court of Appeals for the District of Columbia Circuit in Khaled A.F. Al Odah vs. United States (March 11, 2003). The court declared that alien detainees outside the United States enjoy no judicially cognizable rights under the Constitution or otherwise because their adjudication, simpliciter, would distract the military from killing terrorists and thwarting terrorism.
President George W. Bush and Congress answered the September 11, 2001, abominations with unrelenting war. During America's liberation of Afghanistan from the claws of Taliban and al Qaeda, hundreds of aliens were captured. They have been held as detainees at Guantanamo Bay Naval Base without criminal charges. No releases are planned until the war against global terrorism concludes or the military finds a particular aliens have no important information to share and would not befriend the enemy.
The Naval Base is not technically subject to United States sovereignty, although it is permanently occupied under a 1903 lease with Cuba, as modified in 1934, which declares: "So long as the United States of America shall not abandon the said naval station at Guantanamo or the two governments shall not agree to a modification of its present limits, the station shall continue to have the territorial area it now has … ." But for all practical purposes, Fidel Castro's writ isn't worth a peppercorn inside the Naval Base. It is governed every bit as completely by the United States as is its counterpart at Norfolk, Va.
Friends of several alien detainees challenged the legality of their detentions under the Constitution, international law, and treaties in the U.S. District Court for the District of Columbia. One complaint alleged that 12 detained Kuwaiti nationals had been humanitarian aid volunteers in Afghanistan and Pakistan; and, that villagers seeking bounties seized them for transfer to the United States. Another alleged that an Australian detainee had been captured by the Northern Alliance; that a British detainee had traveled to Pakistan for an arranged marriage after the September 11 horrors; and, that another British detainee had sojourned to Pakistan to visit relatives and hone his computer skills.
The district court dismissed the complaints for lack of jurisdiction, and the court of appeals affirmed. Writing for a unanimous panel of three, Judge Ray Randolph found controlling the parallel decision of the United States Supreme Court in Johnson vs. Eisentrager (1950). There, German enemy aliens convicted by a military commission of assisting Japanese forces in China challenged the constitutionality of their detentions at Landsberg prison in Germany under the control of the United States Army.
In refusing to entertain the claims, the Supreme Court explained that enemy aliens enjoy no judicially enforceable rights concerning activity outside the territory of the United States. To hold otherwise would confound the power of the president and Congress to wage war successfully. Trials could be employed as propaganda megaphones by enemy detainees. Military officials might by summoned from the battlefield to testify in the United States, and squander more time in trial preparation.
Further, judicial proceedings would risk conflicts between judicial and military opinions; diminish the godlike prestige of field commanders like George S. Patton racing across France by holding them accountable to civil courts; and, distort military tactics by worries of how they would appear to a courtroom audience.
The Eisentrager precedent was distinguishable because the Kuwaiti, Australian and British detainees were not enemy aliens; the United States is at peace with their homelands. But its constitutional rationale fit the case before the appeals court like a glove: namely, that the Founding Fathers did not intend a globalization of constitutional rights enforceable by any person and at all times and places against officials of the United States. To imagine the contrary is to refute it.
The high court elaborated: "If the Fifth Amendment confers its rights on all the world … [it] would mean that during military occupation irreconcilable enemy elements, guerrilla fighters, and 'werewolves' could require the American Judiciary to assure them freedoms of speech, press, and assembly as in our First Amendment, right to bear arms as in the Second, security against 'unreasonable' searches and seizures as in the Fourth, as well as rights to jury trial as in the Fifth and Sixth Amendments."
But Eisentrager's professed reasoning seems unpersuasive. Drawing lines is a staple of constitutional law. The court could have found constitutional protection for enemy aliens against torture or summary execution by United States officials, but nothing more.
Moreover, distinguishing between aliens detained within or outside United States sovereignty for purposes of constitutional rights is nonsense. Where the United States controls a place like Guantanamo Bay Naval Base, constitutional rights of alien detainees available in the United States are empty because their assertion would occasion transfer of the detainees to non-sovereign territory where their rights would lapse.
The authentic meaning of Eisentrager, as intuited by the court of appeals, is that federal courts should keep their hands off the military in wartime, and contrive constitutional doctrines and distinctions accordingly.
Thus, two days after Khaled A.F. Al Odah, the U.S. 1st Circuit Court of Appeals in Doe vs. Bush declined to entertain a suit against President Bush and Defense Secretary Donald Rumsfeld assailing the constitutionality of initiating war against Iraq. During the ongoing war against global terrorism, the balance between security and customary liberties will be struck by Congress and the president, informed by citizen advocacy. Federal courts will be largely onlookers, not star participants.

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