- The Washington Times - Tuesday, February 8, 2005

According to U.S. District Court Judge Joyce Hens Green in In re Guantanamo Detainee Cases (Jan. 31), war is akin to a collective criminal prosecution.

Thus, captured enemy aliens held at Guantanamo Bay are crowned with a right to counsel with access to classified information and a right to suppress coerced confessions to challenge their status as enemy combatants.

The due process clause of the Fifth Amendment, Judge Green tacitly insisted, demands that the United States risk second editions of the September 11 abominations from erroneous releases and a boosting of enemy morale to avoid a wartime injustice to a single suspected alien terrorist.

But war’s signature is injustice. Courageous men and women die in battle so others may enjoy government of the people, by the people, for the people. Innocent civilian bystanders are inescapable victims, whether in Baghdad, Dresden, Hiroshima or elsewhere. Scoundrels profit from black market transactions. Realpolitik shields archvillains from accountability, like Soviet dictator Josef Stalin, Japanese Emperor Hirohito or Iraqi Muslim cleric Muqtada al-Sadr.

The U.S. Supreme Court has predictably denied the Constitution condemns all wartime injustices in sustaining conscription in the Selective Draft Law Cases (1918), and the destruction of private property without compensation to prevent its exploitation by the enemy in United States vs. Caltex (1952). Judge Green’s fretting over the possibility of injustice to an alien detainee at Guantanamo Bay was misplaced.

Congress authorized President George W. Bush to conduct war against global terrorism with “all necessary and appropriate force” against nations, organizations or persons implicated in terrorist attacks. Hundreds of enemy combatants captured both on and away from the battlefields of Afghanistan have been detained at Guantanamo, including aliens apprehended in Gambia, Zambia, Bosnia and Thailand.

Mr. Bush has determined, in accord with customary international law and practice, that Guantanamo’s enemy combatants should be held indefinitely until the war against global terrorism concludes or until the military decides a particular detainee no longer is a threat to the U.S. or its allies and no longer has intelligence value.

Judge Green preposterously likened the alien enemy combatant detentions to criminal punishment: “Although detainees at Guantanamo Bay not subject to prosecution could suffer the same fate as those convicted of war crimes — potentially life in prison, depending on how long America’s war on terrorism lasts — they were not given any significant procedural rights to challenge their status as ‘enemy combatants,’ at least until relatively recently. … Short of the death penalty, life imprisonment is the ultimate deprivation of liberty, and the uncertainty of whether the war on terror — and thus the period of incarceration — will last a lifetime may be even worse than if the detainees had been tried, convicted, and definitively sentenced to a fixed term.”

But international law or custom has never set a statute of limitations on war. It has invariably been thought untroublesome to hold an enemy combatant for the duration of a conflict, irrespective of how long that may be. The English and the French fought a 100 years war. Japan warred against China from its 1931 aggression against Manchuria until its 1945 surrender after Hiroshima and Nagasaki. The Vietnam War lasted a decade. Since the endpoint of war is never certain at the outset, all enemy combatant detainees confront indefinite detention. The war against global terrorism is not unique.

Supreme Court decisions discredit the idea that enemy combatant detentions constitute criminal punishment. In Bell vs. Wolfish (1979), the court explained a sanction that is not historically regarded as punishment and is imposed for a noncriminal purpose, e.g., to prevent a return to warring against the United States or to obtain intelligence, does not compel traditional procedural safeguards. Mr. Bush’s Combatant Status Review Tribunal properly rests on that understanding.

In reviewing enemy combatant claims of military error, the CSRT may use classified information denied to the alien detainee but made available to a personal representative.

Judge Green faulted the tribunal for failing to permit a detainee’s lawyer to examine classified documents to better challenge his enemy combatant designation. Defense advocates, however, are tasked to twist facts and inferences in hopes of exoneration, not to seek reliable tribunal decisions. The price of error in releasing enemy combatants, unlike the corresponding price of erroneous acquittals of marijuana dealers, is sufficiently damaging to national security to justify denying defense counsel access to classified information.

Judge Green further tripped by demanding that the CSRT suppress coerced confessions reasonably found reliable. She again unpersuasively equated the CSRT with a criminal prosecution, and thus ordained an exclusion remedy even when the coercion did not impair enemy combatant status accuracy.

The Supreme Court has never even hinted that the exclusionary rule should be employed to free a known enemy. If coercion against a detainee violated the law, the sensible and constitutional response is to prosecute or otherwise sanction the wrongdoer, not to grant a bonanza to al Qaeda.

Judge Green also invoked criminal justice standards of fair warning to find unconstitutional broadness in the president’s definition of an “enemy combatant.” But to rephrase Clausewitz, war is not a criminal prosecution by other means.

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

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