Rich Lowry

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.

Rich Lowry

Rich Lowry is author of Legacy: Paying the Price for the Clinton Years .
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