The rights of enemy combatants at Guantanamo

Rich Lowry
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Posted: Nov 13, 2003 12:00 AM

The detainees held at Guantanamo Bay shouldn't hire Alan Dershowitz quite yet. News accounts have played the Supreme Court's decision to consider whether U.S. courts have jurisdiction over Guantanamo as a setback to the Bush administration's position that the courts have nothing to do with it. "An unmistakable rebuff," according to The New York Times.

This is media wishful thinking that coincides with a new vogue for the rights of "enemy combatants" in the Democratic Party. Al Gore recently unleashed the U-bomb ("un-American") to characterize the handling of captured Taliban fighters: "The Bush administration's treatment of American citizens it calls 'enemy combatants' is nothing short of un-American." Presidential candidate and former trial lawyer Sen. John Edwards has picked up the theme, perhaps hoping to land a few as clients when his campaign ends sometime in late February.

What the Bush critics are implicitly proposing is an extension of rights so far-reaching that it would undermine the executive's ability to wage war. Under their new dispensation, carried to its logical end, every member of Saddam Hussein's Fedayeen would hire personal-injury lawyers to represent them should they get hurt by American soldiers. The chances that the U.S. Supreme Court will make this radical departure are nil. Enemy combatants are not criminal defendants with an array of rights enforced through the U.S. justice system.

It is possible the Supreme Court will, on the narrow question before it, decide that the U.S. courts have jurisdiction over Guantanamo Bay. The Bush administration argues that Guantanamo Bay is not sovereign U.S. territory, but even if Guantanamo is technically Cuban land, the United States still controls it, and Cuban law does not apply there.

But so what? If Guantanamo is held to be U.S. territory, it will make no difference. Detainees there still will be held without charge and denied lawyers -- rightfully. This is because they have committed no crime and are charged with none. Their "only" offense is waging a war against the United States, and so they can be held until the end of the war as captured enemy troops for time immemorial.

Consider the case of Yaser Hamdi, a U.S. citizen who (by his own admission) was captured while fighting with the Taliban in Afghanistan and subsequently brought to the United States. This U.S. citizen on U.S. soil has no more rights than the detainees at Guantanamo Bay, because he shares their status as an enemy combatant.

Capturing and detaining enemy belligerents like Hamdi is part of the president's war-making powers under Article II of the Constitution. As U.S. courts have recognized, going back to the Civil War, a court can no more review the commander in chief's battlefield detentions than it can, say, overturn his decision to bomb Tikrit. Both would be equally absurd and would equally trespass on the president's fundamental powers.

In a January decision upholding Hamdi's detention, the 4th U.S. Circuit Court of Appeals ruled that the judicial review of battlefield detentions would risk "saddling military decision-making with the panoply of encumbrances associated with civil litigation." The executive makes both the decisions whom to capture and whom to bomb based on determinations that cannot be second-guessed in civilian courts, lest the commander in chief have to argue his every act of war in court.

As the 4th Circuit put it, the Hamdi detention "bears the closest imaginable connection to the president's constitutional responsibilities," and trespassing on those responsibilities "would be an infringement of the right to self-determination and self-governance at a time when the care of the common defense is most critical." In other words, holding enemy belligerents until the end of hostilities, and interrogating them while they are detained, is indispensable to the war on terrorism that the American people have chosen to wage.

A court has no legitimate power to undo that choice, no matter how much Gore and other Bush critics might wish it were so. As for Dershowitz, he will have to look for clients among people not captured on the battlefield with the Taliban.