- The Washington Times - Wednesday, September 7, 2005

Third of five parts.

The men detained at Guantanamo Bay, Cuba, are not in a legal limbo. They are held in accord with the traditional laws and customs of war, which permit captured enemy combatants to be held as long as hostilities continue. The status of “enemy combatant” is centuries old, and the term itself dates at least to 1914. It was, for example, used in the British Manual of Military Law applicable during both world wars, and in several later U.S. Supreme Court cases. Enemy combatants are not entitled to a trial unless charges, most likely for war crimes, are actually brought. Nevertheless, over the past four years, the Bush administration has developed an elaborate hearing system at which the status of captives can be periodically reviewed.

The initial review process, adopted in response to the Supreme Court’s 2004 decision in Hamdi vs. Rumsfeld, is called a “combatant status review,” and is carried out by specially convened combatant status review tribunals (CSRTs). This is not a criminal proceeding; its purpose is to consider “all of the information related to a detainee to determine whether each person meets the criteria to be designated as an enemy combatant.” The review is conducted by a board of three officers. The detainee receives the assistance of a military adviser. The CSRTs were modeled — as suggested by the Supreme Court — on the Article 5 status reviews conducted under the Geneva Conventions in cases where there is some doubt as to whether a particular captive is entitled to POW treatment. All Guantanamo Bay detainees have already had CSRT hearings. The vast majority were determined to have been properly classified as a enemy combatants.

In addition, Administrative Review Boards (ARBs) assess on an annual basis whether each detainee continues to pose a threat to the United States or its allies, and whether he has continuing intelligence value. Based on ARB findings, detainees may be released even before hostilities end. Detainees have the right to present evidence to the ARBs, and to have the assistance of a lay officer. The ARB also may consider information provided by the detainee’s family and the government of his home country. The most disadvantageous result for the detainee of either review is continued detention until the close of hostilities.

If criminal charges, which may result in penal sanctions, are brought against a detainee, a military commission is convened pursuant to the President’s Military Order of November 13, 2001. Military commissions have a long history in American legal practice, and were held to be constitutional by the Supreme Court in Ex parte Quirin, a 1942 case involving eight Nazi saboteurs (one of whom was an American citizen) captured in the United States. The court referred with approval to Quirin in its 2004 “war on terror” cases, and the U.S. Court of Appeals for the District of Columbia recently upheld the president’s Nov. 13, 2001, order in Hamdan vs. Rumsfeld. As the three-judge Hamdan panel correctly explained, the Quirin court held that Congress had authorized the use of military commissions through the Articles of War, which remain in force today as part of the Uniform Code of Military Justice.

Thus, the current system offers a solid basis for processing enemy combatants. However, as it has evolved, the system has some important drawbacks. Although the Hamdan court properly upheld the president’s establishment of military commissions, it did so based on congressional authorizations dating to the 1920s and before. This is not problematic as a matter of law — indeed, as commander in chief, the president has inherent power to employ military commissions — but is troublesome as a matter of politics.

Moreover, although Congress has authorized the use of American military force in Afghanistan and Iraq, thereby implicitly authorizing detention of enemy combatants and the use of military commissions, the fact that it has not done so explicitly has often been cited by the critics of American policy, at home and abroad. Unfortunately, most congressional efforts in this area to date have not been comprehensive in nature, and have been largely directed at restating pre-existing bans on the use of “torture” — without offering any useful definition — or simply requiring that unlawful combatants be treated the same way as POWs — an unnecessary and improvident proposal. Congress can and should do better.

In this regard, legislation that would effectively codify the present system — with reasonable revisions taking into account both national-defense needs and the importance of minimizing mistaken or unnecessary detentions, as well as exhibiting proper regard for the executive branch’s constitutional prerogatives — would put the president in the strongest possible political and legal position and minimize the prospects for judicial second-guessing and interference. As Supreme Court Justice Robert Jackson explained in his famous concurrence in the landmark Youngstown Sheet and Tube case, the president acts at the zenith of his powers when doing so in accordance with a specific congressional authorization.

Senate Judiciary Committee Chairman Arlen Spector is, in fact, working on just such a measure, and his efforts deserve the administration’s support.

Part I: The long war

Part II: Engaging the critics

David B. Rivkin Jr. and Lee A. Casey are partners in the Washington office of Baker & Hostetler LLP. They served in the Justice Department under Presidents Reagan and George H.W. Bush.

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