- The Washington Times - Monday, November 22, 2004

Congress should enact legislation denying alien enemies captured in the war against global terrorism the right to challenge the legality of their detention in federal courts by writs of habeas corpus. Congress should also by statute ratify President George W. Bush’s orders creating military commissions for the trial of enemy aliens accused of war crimes, and a Combatant Status Review Tribunal to vet Guantanamo Bay detainees to verify their status as enemy combatants. The proposed laws would both help to defeat the uniquely savage global terrorist enemy while conferring more liberty than would be lost.

In Rasul vs. Bush (2004), the Supreme Court interpreted federal habeas corpus statutes to crown alien enemy detainees at Guantanamo Bay with a right to attack the legality of their detention in federal courts. A federal district court subsequently held the detainees enjoy a right to counsel. The judicial rulings risk erroneous releases of enemy terrorists, thus enabling them to attempt second editions of September 11 or comparable abominations. They also thwart vital intelligence collection because detainee lawyers will advise of silence. Finally, U.S. military morale will plunge from the spectacle of commanders called to account in their own civilian courts by enemies they have been ordered to crush. Congress should end these alarming evils by withholding from alien detainees held as enemy combatants a right to habeas corpus.

The ubiquity and brutality of the threat created by al Qaeda and sister Islamic terrorist organizations is unprecedented. They have proclaimed all the world a battlefield, and every American man, woman, and child a target of their vileness. The enemy terrorist is characteristically incorrigibly fanatical. If released by mistake, the probability of a return to their loathsome vocations is overwhelming. Even before the Rasul ruling, the U.S. military mistakenly released about a dozen alien enemy combatants, who then returned to terrorist warfare.

In sum, a harrowing danger is posed to the American people by errant releases of enemy alien detainees through faulty fact-finding in habeas corpus proceedings. The risk to lives and liberties would be vastly greater than from an erroneous acquittal of a drug abuser or embezzler in civilian courts.

And faulty fact-finding in favor of enemy aliens captured on the battlefield seems inescapable in habeas corpus suits because of special difficulties in assembling proof of enemy combatant status. In ordinary criminal prosecutions, the United States employs search and arrest warrants, grand juries, witness immunity, and subpoenas to gather incriminating evidence from persons or things within U.S. sovereignty. But none of these tools are available in foreign jurisdictions where enemy aliens are typically apprehended. Moreover, alien enemy combatants may have been initially seized by an ally, like the Northern Alliance in Afghanistan, whose soldiers are beyond the knowledge or control of the United States.

Proof is also vexed because Islamic terrorists are indoctrinated to prevaricate and to deceive in waging jihads against Christians and Jews. In addition, battlefield encounters concentrate the soldier’s mind wonderfully on self-preservation and killing the enemy, not on observations or photography that would disprove claims of mistaken enemy combatant identity in habeas corpus proceedings.

Denying habeas corpus to detainees held at Guantanamo Bay or elsewhere would risk injustice, but not different from the injustice regularly risked in Anglo-American jurisprudence. Human error may have led to misidentification of an innocent alien bystander as an enemy combatant. The error causes indefinite detention in humane conditions until the war ends.

But comparable miscarriages are risked every day when civilian courts try criminal cases. Guilt of the most heinous offenses is proved beyond a reasonable doubt — not beyond all doubt — which leaves room for wrongful convictions. Indeed, newspapers regularly report belated exonerations via DNA testing or other new evidence of convicted murderers or rapists after agonizing years of imprisonment. Those individual injustices are risked because crime would spiral to semi-anarchical levels if absolute certainty were needed for conviction. It would enable countless genuine criminals to circumvent justice and continue wreaking havoc on the innocent, despite the offsetting benefit of averting false guilty verdicts. In other words, the price of liberty and civilization for the many is unintended but tragic injustice for a few.

The risk of erroneous detention of enemy aliens has been reduced by President Bush’s creation last July 7, 2004, of a “Combatant Status Review Tribunal.” Each of approximately 600 Guantanamo Bay detainees has been assigned a military officer to help challenge their enemy combatant status before a three-member military tribunal. The detainee is excluded from proceedings where his presence could compromise national security. That a detainee is an enemy combatant must be proven a preponderance of the evidence, with a rebuttable presumption in favor of the government’s case. Hundreds of detainees have been vetted by the tribunal; one has been released.

It is not that individual justice is loved less, but that the lives and safety of the many is loved more, that habeas corpus should be denied enemy combatants wherever detained.

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

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