- The Washington Times - Wednesday, June 30, 2004

The United States must fight global terrorism by Queensbury rules while the enemy indulges every savagery and abomination known to mankind.

That daftness is the subtext of the Supreme Court’s decision last Monday in Rasul vs. Bush (June 28, 2004) entitling Guantanamo Bay alien detainees in the war against al Qaeda and Taliban to challenge the legality of their detentions in federal courts through writs of habeas corpus and sister federal laws. Congress should not tarry in amending these statutes to withhold their benefits retroactively from aliens held in military custody as erstwhile combatants against the United States.

As William Tecumseh Sherman lectured, “War is hell.” Innocents suffer with the guilty. Infants perished in the bombings of Hiroshima, Nagasaki and Dresden alongside Emperor Hirohito’s merciless soldiers and the Fuehrer’s Waffen SS. The law of self-preservation reigns supreme. Moral niceties and traditional legal norms command little sway.

During the Civil War, President Abraham Lincoln defied a federal court decree nullifying his unilateral suspension of the writ of habeas corpus. He explained to Congress the folly of letting all laws but one go unexecuted, and the nation crumble as a result.

The United States is now engaged in an unprecedented counterterrorism war. The enemy revels in barbarism. Just ask the relatives of Nicholas Berg and Paul Johnson. Every American, military or civilian, is a target at any time or place both at home and abroad.

After September 11, 2001, some 640 alien detainees captured in the war against al Qaeda and Taliban have been incarcerated indefinitely at the Guanatanmo Bay Naval Base, Cuba, to prevent their renewing warfare against the U.S. More than 100 detainees have been released to their native lands.

Inadvertent errors have plagued the vetting process. At least five released detainees have returned to killing Americans. Intelligence collection is the companion detention goal. Thwarting terrorism in advance, not punishing after the fact, is the urgent mission. But detainee access to lawyers or courts would trigger silence, not cooperation.

Moreover, as Napoleon maintained, morale is 90 percent of an army’s fighting strength. And as Supreme Court Justice and Nuremburg prosecutor Robert Jackson underscored in Johnson vs. Eisentrager (1950), to offer the writ of habeas corpus in wartime to alien captives “would diminish the prestige of our commanders, not only with enemies but with wavering neutrals. 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. Nor is it unlikely that the result of such enemy litigiousness would be a conflict between judicial and military opinion highly comforting to enemies of the United States.

“Moreover, we could expect no reciprocity for placing the litigation weapon in unrestrained enemy hands. The right of judicial refuge from military action, which it is proposed to bestow on the enemy, can purchase no equivalent benefit for our soldiers.”

Writing for a 6-3 majority in Rasul, Justice John Paul Stevens scorned these weighty admonitions and military understandings. At issue was whether the federal habeas corpus statute was intended to reach aliens captured during wartime outside the United States and detained in territory outside U.S. sovereignty. The statutory language was inconclusive. It empowers federal district courts, “within their respective jurisdictions,” to entertain habeas corpus petitions by any person who claims to be held “in custody in violation of the Constitution or laws or treaties of the United States.”

But alien detainees at the Guantanamo Bay Naval Base seemed outside federal court jurisdiction. Under a 1903 Lease Agreement and a 1934 Treaty, sovereignty remains in Cuba. Justice Stevens reasoned the United States exercises “complete jurisdiction and control” over the enclave, making it an American territory for purposes of its domestic laws.

But a “jurisdiction and control” interpretive lodestar as applied to enemy aliens captured abroad is thoroughly implausible. By force of arms, the United States is the de facto sovereign in parts of Afghanistan. It was sovereign in Iraq until the June 28 turnover. The Central Intelligence Agency has orchestrated and retains control over secret detentions and interrogations of approximately a dozen high-priority alien detainees in foreign countries. The United States asserted jurisdiction and control over approximately 2 million enemy soldiers held in custody at the conclusion of World War II.

The alpha and omega of statutory construction is congressional intent. To believe, as Justice Stevens insisted, Congress intended the federal habeas corpus statute to benefit aliens captured in a foreign theater of active combat and detained under U.S. control is to believe nonsense. It means making federal habeas corpus available to Osama bin Laden and Mullah Omar if they are captured along the Afghan-Pakistan border and detained in Kabul under U.S. military control.

To forestall such wartime foolishness, Congress should amend the habeas corpus statute accordingly. Time is of the essence.

Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein & Associates and the Lichfield Group.

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