It's a War, Stupid: Understanding and misunderstanding the detainees

National Review, Sept 16, 2002 by Kate O'Beirne

Even as the terrorist attacks were taking place last September 11, President Bush made use of the extraordinary authority he has to protect Americans from enemy action. Had the heroes of United Flight 93 not prevented their hijacked plane from reaching Washington, F-16s -- deployed by President Bush -- would have shot down the plane full of American citizens. There is no question that this first defensive action taken by the president in the war on terrorism was a lawful exercise of his executive powers. Yet editorial writers and legal analysts who were untroubled by the president's awesome authority to sacrifice some American lives to safeguard others now argue that his equally well-established authority to detain enemy combatants in military custody poses a monumental threat to our liberties.

The detention of Yaser Hamdi in a Navy brig in Norfolk, Va., has prompted hysterical commentary. The Rocky Mountain News declared, "The Bush Administration is making a breathtaking assertion of its right to imprison an American citizen indefinitely, without access to a court or a lawyer, simply by designating the citizen an 'enemy combatant.'" Because this "breathtaking assertion" is accurate as a matter of law, such editorial outrage is usually accompanied by either citations to inapplicable legal authority or no mention of any controlling law at all. The critics are confusing the procedural safeguards that apply to criminal detention with the wartime precedents that govern military custody of enemy combatants -- and their propaganda risks damaging the president's ability to protect American lives.

Federal district judge Robert G. Doumar, who is presiding over Hamdi v. Rumsfeld, shares this confusion. Hamdi, armed with a Kalashnikov rifle, was captured in Afghanistan late last year when his Taliban unit surrendered to Northern Alliance forces. He told interrogators that he was a Saudi citizen, born in the U.S., who had come to Afghanistan the previous summer to train and fight with the Taliban. Hamdi was sent to Guantanamo Bay with other detainees, and later transferred to Norfolk when it was confirmed that he was born in Louisiana, where he lived with his Saudi parents until they returned to the Kingdom when he was three years old.

Although critics hammer John Ashcroft over the detention of Hamdi, the Taliban fighter is actually in defense secretary Donald Rumsfeld's custody -- based on Hamdi's classification as an unlawful enemy combatant. Clearly, lawful combatants held as POWs under the Geneva Convention can be held until the end of hostilities without the right to legal representation to challenge their detention. Such detainees face no criminal charges, and their detention is not punitive. They are imprisoned in order to prevent them from serving with the enemy's forces, and to permit our military to gather as much intelligence as possible from them. Once a lawyer counsels his client to remain silent, a crucial opportunity to glean intelligence is lost.

Citizens and non-citizens alike can be classified as enemy combatants. Gaetano Territo, an American citizen, was captured fighting with the enemy in Italy during World War II. The Ninth Circuit Court of Appeals ruled that his citizenship had no bearing on his lawful detention, which had lasted three years by the time of the court's decision.

Unlike the non-citizen combatants held at Guantanamo, Yaser Hamdi does have the right to have his habeas corpus petition considered. His supporters are arguing that his transfer to Norfolk should have been accompanied by the services of a Johnnie Cochran to defend his rights. Twice, Judge Doumar has issued unprecedented orders that this captured enemy combatant have private, unmonitored access to a lawyer, and twice the Fourth Circuit Court of Appeals has stayed his orders. The appeals court declared: "It has long been established that if Hamdi is indeed an 'enemy combatant' who was captured during hostilities in Afghanistan, the government's present detention of him is a lawful one." The court thus upheld what the St. Louis Post-Dispatch called the administration's "extraordinary claim." (The confused editorial allowed that Hamdi "is clearly an enemy combatant," but mistakenly cited the Sixth Amendment's right to counsel "in all criminal proceedings" as applicable to military detention.)

The appeals court laid out the appropriate standard of review for the lower court in determining whether Hamdi was properly classified as an enemy combatant. The Fourth Circuit cited the Supreme Court's decision in the case of eight captured Nazi saboteurs, including at least two naturalized U.S. citizens, who traveled by submarine to Florida and Long Island, intending to attack military production facilities: "In World War II, the Court stated in no uncertain terms that the President's wartime detention decisions are to be accorded great deference from the courts." In contrast to today's editorial opinions, which obsess over the alleged rights of enemy agents, editorialists 50 years ago directed their outrage at courts that intervened inappropriately in military affairs. When the Supreme Court decided to review the hasty, secret military trial of the Nazi saboteurs, the Detroit Free Press reacted angrily: "Realism calls for a stone wall and a firing squad, not a lot of holier-than-thou eyewash about extending the protection of civil rights to a group that came among us to blast, burn, and kill."