- The Washington Times - Monday, November 21, 2005

Sen. Lindsey Graham, South Carolina Republican, deserves a salute. On Nov. 10, he engineered an amendment to a pending bill that generally ends the absurdity of alien enemy combatants detained at Guantanamo Bay (GTMO) suing in federal courts officials of the United States they hope to kill.

Under existing habeas corpus statutes as interpreted by the Supreme Court in Rasul v. Bush (2004), some 300 GTMO detainees have sued alleging various transgressions of constitutional rights, including a demand for dictionaries, high-speed internet access, and faster mail delivery.

The Graham amendment strikes a more enlightened balance between winning the war against global terrorism and the civil liberties of alien enemy terrorists.

President Bush should have sought the amendment long ago. It honors the understanding of Supreme Court Justice and Nuremberg war crimes chief prosecutor Robert Jackson that the Constitution is not a suicide pact.

The writ of habeas corpus is precious. It customarily endows detainees with a right to demand an explanation for their detentions by the executive before the judicial branch.

Alexander Hamilton in Federalist 84 celebrated the writ as indispensable to thwarting arbitrary government. He underscored Blackstone’s commentary that the British habeas corpus act was “the bulwark of the British Constitution.”

All rights, however, are matters of degree. Thus, Article I, section 9, clause 2 of the U.S. Constitution acknowledges Congress’ power to suspend or otherwise curtail the writ of habeas corpus “when in cases of rebellion or invasion the public safety may require it.” As President Abraham Lincoln recognized in suspending the writ during the Civil War (with later ratification by Congress), habeas corpus must be subordinated to national preservation.

Until the war against Taliban, al Qaeda, and their terrorist supporters, that principle had been universally understood to justify withholding the writ from alien enemy combatants or prisoners of war tasked to destroy the nation. Indeed, the idea of extending the writ to prisoners of war was too preposterous to entertain. None of the countless enemy combatants imprisoned in the United States during World War II dreamed of suing Gen. George C. Marshall alleging their captures had violated constitutional rights. As Sen. Graham elaborated in defending his amendment: “There has never been a time in our military history where an enemy combatant or prisoner of war has been allowed access to federal court to bring lawsuits against the people they are fighting.”

The consequence of a ruling favorable to an enemy combatant is frightful: namely, releasing a prisoner who renews indiscriminate killings of American civilians or soldiers. Even without habeas corpus, the Defense Department has released more than a dozen GTMO detainees in the mistaken belief they were neither dangerous nor of informational value to the United States but who nevertheless returned to warfare.

Irrefutable proof of enemy combatant status is problematic because battlefield captures are more fog than uncloudy snapshots. Further, habeas corpus litigation against military commanders boosts enemy morale and deflects the mission of winning the war, simpliciter.

The probability of erroneous GTMO detentions is unalarming. U.S. military history reveals no propensity for gratuitous captures motivated by personal spite or invidious animosities. Per capita bounties are not offered for prisoners. Detention for the sake of detention squanders money, time and valuable resources. Thus, the United States has voluntarily released hundreds of GTMO detainees.

Further, in response to a decision by the Supreme Court, the Defense Department has established a Combatant Status Review Tribunal (CSRT) to determine if GTMO detainees are illegal “enemy combatants.” The latter means “an individual who was part of or supporting Taliban or al Qaeda forces, or associated forces engaged in hostilities against the United States or its coalition partners. This includes any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces.”

The CSRT is composed of three neutral military officers. The detainee enjoys a right to testify, to a personal representative, to call reasonably available witnesses, and to question witnesses summoned by the CSRT. On the other hand, access to classified information is denied, hearsay evidence is permitted, and the government enjoys a rebuttable presumption a detention is lawful. No other nation in the history of warfare, however, has offered such generous legal safeguards to avert unintentional harm to bystanders.

The Graham amendment goes even further. The CSRT would be barred from considering evidence obtained “with undue coercion.” A detainee would also enjoy judicial review in the U.S. Court of Appeals for the District of Columbia Circuit to challenge the constitutionality of the tribunal’s procedures and the application of its legal standards.

The amendment buttressed CSRT risks erroneous decisions. But so do prosecutions for capital murder. Indeed, possible error is inherent in every procedural regime. The decisive question is whether the risk is worth the public benefit of detaining or punishing authentic enemies or criminals to escape a Hobbesian state of nature where life is poor, nasty, brutish and short.

The CSRT procedures as strengthened by Mr. Graham clearly satisfy that test.

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

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