Monday, January 12, 2004

Contrary to the fearful voice of Associate Justice Robert Jackson dissenting in Korematsu vs. United States (1944), emergency powers asserted by presidents in times of war have not turned into loaded guns lying around for misuse by any zealous official who claims an urgent need.

History speaks otherwise. During the Civil War, for instance, President Abraham Lincoln extraconstitutionally summoned an army, expended unappropriated funds, unilaterally suspended the writ of habeas corpus, and suppressed speech friendly to the Confederacy. Congress belatedly ratified Lincoln’s legislative usurpations. They were not repeated during the war. Neither did they establish presidential war principles that crept into nonemergency circumstances.

President Franklin D. Roosevelt’s ugly relocation of Japanese American citizens and residents into concentration camps has been discredited. Indeed, Congress voted reparations for the victims in the Civil Liberties Act of 1988; and, convictions for defying curfew and relocations orders have been voided. Learning from FDR’s example, President George W. Bush in the wake of the September 11, 2001, terrorist attacks lectured against stereotyping of Arabs or Muslims and established a special FBI unit to investigate crimes against either minority group.

More than constitutional text or syllogism, the largely reassuring history of presidential war powers will control the impending decisions of the U.S. Supreme Court concerning the Guantanamo Bay detainees and the indefinite detentions of three United States citizens as enemy combatants in the nation’s war on global terrorism.

September 11, 2001, marked the entry of the United States into that war every bit as much as December 7, 1941, marked its entry into World War II. The terrorist enemy has made every American citizen anywhere in the world fair game, as the grisliness of September 11 attests.

In warring against international terrorism, President George W. Bush has claimed the power to detain enemy combatants indefinitely without judicial review, whether citizens or aliens. The unreviewable detentions serve threefold purposes: to extract intelligence that might thwart future editions of September 11 or otherwise save Americans from a terrorist attack; to prevent captured enemies from returning to combat; and, to avoid distracting the military from its overriding mission of killing and capturing the enemy by requiring the gathering of legally admissible battlefield evidence to disprove easily fabricated claims of mistaken identity. Detainees are denied a right to counsel. Any lawyer worth his salt would advise against talking, thus frustrating the intelligence objective of the detention.

President Bush’s detractors assail the idea of unchecked power to designate and to detain enemy combatants, especially because it could become a permanent fixture of executive authority.

The global terrorism war confronts no clear end point. In addition, the rights to an attorney and to judicial review of the president’s designations are necessary, it is said, to avoid arbitrary or capricious or ill-founded detentions.

More important, to ratify the principle of unlimited presidential power to designate and to imprison enemy combatants would create a “slippery slope” leading to its misuse against political opponents or disliked minorities.

The U.S. Supreme Court agreed last Friday to entertain these competing arguments in Hamdi vs. Rumsfeld. Born in the United States and putatively an American citizen, Yaser Esam Hamdi was captured on an active battlefield in Afghanistan in the course of the U.S. war against Taliban in collaboration with the Northern Alliance. He was ultimately transferred to the Norfolk Naval Station Brig in Norfolk, Va., in April 2002.

Through his father, Mr. Hamdi sought a writ of habeas corpus in federal district court challenging the legality of his confinement. The petition alleged that Mr. Hamdi “enjoys the full protections of the Constitution,” and, that his detention without charges, access to a judicial tribunal, or the right to counsel, “violate the Fifth and 14th Amendments to the United States Constitution.”

Michael Mobbs, special adviser to the undersecretary of defense for policy, filed a declaration describing the circumstances of Mr. Hamdi’s seizure. The military determined that he traveled to Afghanistan in July or August 2001 to affiliate with a Taliban military unit and receive weapons training. While serving with Taliban forces in the aftermath of September 11, Mr. Hamdi was captured when his unit surrendered to Northern Alliance troops. He was then brandishing an AK-47 rifle.

The U.S. 4th Circuit Court of Appeals sustained the constitutionality of Mr. Hamdi’s enemy combatant detention without further judicial inquiry. Writing for the court, Chief Judge Jay Harvey Wilkinson enlisted the admonition of the Supreme Court in Johnson vs. Eisentrager (1950): “It would be difficult to devise more effective fettering of a field commander than to allow the very enemies he is ordered to reduce to submission to call him to account in his own civil courts and divert his efforts and attention from the military offensive abroad to the legal defensive at home.”

As Eisentrager counseled against, the adjudication of Mr. Hamdi’s habeas corpus petition would saddle the military with producing statements and notes of its interviews; the names and addresses of his interrogators; statements by members of the Northern Alliance regarding Mr. Hamdi’s surrender, including his unit, weapons training, and battlefield garb; and, the United States official who determined he was an illegal combatant.

The president’s muscular war powers asserted in the Hamdi case could conceivably occasion injustice against a few in pursuit of safety and freedom for hundreds of millions. Cases of mistaken identity are possible, although persuasive evidence of the same has yet to surface. And President Bush theoretically could contrive justifications for enemy combatant designations to punish dissenters or popularly disfavored minorities. But he has not done so. No credible evidence suggests the Guantanamo Bay or three illegal enemy combatant detainees have been imprisoned for nefarious reasons.

With history in mind, the Supreme Court will sustain presidential war powers in Hamdi and companion cases. The tiny risk of presidential overreaching is dwarfed by the urgency of crushing an enemy who keenly relishes civilian slaughters, fanaticism and the Stone Age.

Bruce Fein is a founding partner of Fein & Fein.

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