- The Washington Times - Wednesday, February 2, 2005

Do enemy combatants have due process rights under the Constitution? Do the detention of persons classified as such at Guantanamo Bay deny such rights? Should the courts be able to overrule the president and federal agencies when they classify persons as enemy combatants and deem them undeserving of protection? And are those persons entitled to see the intelligence information upon which U.S. authorities based their judgment? Those are some of the questions the U.S. District Court for the District of Columbia addressed in a far-reaching opinion Monday. Though only the district court opinion on the subject, on all four questions, the court said yes.

On the first two, U.S. District Senior Judge Joyce Hens Green, a Carter appointee, said such aliens are indeed guaranteed due- process rights and that their rights are being violated at Guantanamo. On the third, Judge’s Green’s answer was that yes, a court may overrule even a president who determines on the basis of intelligence information that a suspect is an “enemy combatant” and should not enjoy rights under U.S. law. And on the fourth, Judge Green apparently thinks the Guantanamo detainees are entitled to access sensitive U.S. intelligence information.

That decision strikes us as wrong-headed, and directly contradicts District Judge Richard Leon’s ruling last month which threw out similar suits by detainees. Judge Leon’s decision is a long way from 1950, when the Supreme Court said no on all accounts. Back then, in Johnson v. Eisentrager, the court held that Nazi agents captured in China did not enjoy constitutional protections under U.S. law. The German nationals in question were captured in China and convicted by a U.S. military commission. They were in service to a foreign power hostile to the United States, the court reasoned, and therefore did not deserve protection under U.S. law.

It’s not hard to see why the reasoning in Johnson v. Eisentrager is preferable to Judge Green’s. As in the Nazi agent case, the president and the U.S. military have determined on the basis of intelligence information that the suspects at Guantanamo are enemy combatants and are therefore undeserving of protection by the U.S. Constitution. Judge Leon, for one, thinks it’s not the court’s prerogative to second-guess that judgment. As Judge Leon argued last month: “The petitioners are asking this court to do something no federal court has done before: evaluate the legality of the [president’s] capture and detention of nonresident aliens, outside the United States, during a time of armed conflict. In the final analysis, the court’s role in reviewing the military’s decision to capture and detain a nonresident alien is, and must be, highly circumscribed.”

The Bush administration said it respectfully disagrees with Judge Green’s decision. The Justice Department will likely appeal the decision and an appellate court will take up the question anew. “There is no basis in the Constitution, or in history, for according aliens captured by the military outside the United States and classified as enemy combatants ‘due process’ rights under the Constitution, there is nothing in our historical tradition that would entitle those aliens to all classified intelligence information and sources used to classify them as enemy combatants or to demand a lawyer to assist them in claiming that they were erroneously classified,” the department said.

For the sake of the war on terror, for the preservation of the president’s and the military’s ability to classify our enemies as enemies, to keep sensitive intelligence information secret and, fundamentally, to make it legally possible to fight and win our wars, we hope and expect Judge Green’s decision to be overturned. If it is not, we would need a constitutional amendment to clarify the point made by the late Supreme Court Justice Robert Jackson — the Constitution is not a suicide pact.

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