- The Washington Times - Thursday, March 19, 2009




Last Friday, President Barack Obama’s views in a habeas corpus filing submitted to the United States District Court for the District of Columbia made it unanimous across party lines.

The United States is engaged in a perpetual war with international terrorism. Although the number of American deaths it has caused on and after Sept. 11, 2001, approximates 2 percent of American murder victims since that date, both parties agree the United States is not at war with murder and that the president may not detain suspected murderers who might be second editions of Timothy McVeigh for life without accusation or trial. Why the greater threat of murder occasions lesser invasions of liberty than the lesser danger of international terrorism has never been explained.

The rival parties also agree that the entire world is a terrorist battlefield where the United States may employ military force, impose military law, or encroach on any nation’s sovereignty (for example, Pakistan or Iran) in pursuit of a suspected terrorist or terrorist supporter on the president’s say-so alone. The president may detain for life without accusation or trial any person (citizen or noncitizen) he declares has “substantially supported” al Qaeda, Taliban or associated forces. Substantial support is defined as, “I know it when I see it,” to borrow from Justice Potter Stewart’s definition of obscenity.

Two days after President Obama’s habeas filing, Senate Republican leader Mitch McConnell ardently urged retaining Guantanamo Bay as a prison for roughly 250 detainees who have never been accused or prosecuted for criminal activity. The senior senator from Kentucky indicated he was privy to reliable evidence that the 250 were guilty of the most harrowing crimes. Writing in The Washington Post, he unbosomed: “Many have been directly involved in some of the worst terrorist acts in history, including some who had direct knowledge of the Sept. 11 attacks. Others have trained or funded terrorists, made bombs or presented themselves as potential suicide bombers.”

If Mr. McConnell is to be believed, all the detainees may be prosecuted, convicted and punished before civilian courts and protected against injustice by the trappings of due process for complicity in terrorism or material assistance to a terrorist organization. The latter includes training, simpliciter, in a terrorist training camp, or acting as a chef, barber or tailor for a terrorist.

Mr. McConnell inexplicably declined to seek immortal fame by offering himself as a star witness to a United States attorney to secure indictments and convictions of the 250 “worst of the worst.” They could serve time in the same prisons as convicted terrorists Zacarias Moussaoui, Jose Padilla, John Walker Lindh or Ramzi Yosef, among others.

Maybe the senator hesitated because his evidence is derived from Guantanamo Bay informant Yassin Mohammed Saleh Basardah. In 2004, a military official assigned to help another detainee wrote in a report that Basardah was not providing credible information. He put the other detainee at an al Qaeda camp three months before the man even arrived in Afghanistan. The official added that trusting Basardah “strains the imagination” because he provided information on at least 60 other detainees. But not a single man identified by the informant as training at the camp during a specific time frame was in Afghanistan during that period.

Mr. McConnell posited that the dispositive test of whether the United States should continue detaining persons at Guantanamo is whether the detentions make Americans safer. Empowering the police to incarcerate for 10 years any potential criminal (i.e., all of us) might also make Americans safer. But it would be the end of freedom.

In my salad days during the Cold War, I was taught “Better dead than red.” It meant that a life without freedom and thick protections against arbitrary or despotic government epitomized by the Soviet Union was not worth living. During the Cuban Missile Crisis, I feared nuclear Armageddon. But I accepted that it was better to risk that last full measure of devotion in defense of freedom than to succumb to Soviet vassalage. I was later steeled by Aleksandr Solzhenitsyn’s “The Gulag Archipelago” that mercilessly exposed the evils of Soviet life: detention and punishment without accusation; show trials; torture; secret evidence; telephone justice, etc.

At present, the United States is no Soviet Union. Jails are not brimming with political prisoners. Freedom of speech and of the press are flourishing. The judiciary is independent of the White House. There are no labor or education camps for dissidents or the unorthodox. But the United States has embraced legal principles and precedents that have inflicted injustice on thousands. Their lives count, even if their names are unfamiliar, like Hamdi, Hamdan, Boumediene or al-Marri.

In a republic, James Madison lectured in Federalist 51, “Justice is the end of government. It is the end of civil society.” In an empire, justice is crucified on a cross of hyper-inflated fears. Which would you choose?

Bruce Fein is a constitutional lawyer with Bruce Fein & Associates Inc., and author of “Constitutional Peril: The Life and Death Struggle for our Constitution and Democracy.”

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