LAST THURSDAY the U.S. Senate added an important provision to a national defense bill allowing war on terror detainees to appeal their status as enemy combatants, but not the actual legality of their detainment. This bill would effectively overturn the Supreme Court's 2004 Rasul v. Bush decision which granted detainees at Guantanamo Bay the right to sue in Federal Courts to overturn the battlefield decisions that resulted in their imprisonment. Addressing this ruling is critical, as it violates the legal and practical precedent regarding prisoners of war. Not correcting it would only lead to a long series of legal struggles and an increased terrorist threat worldwide.
In Rasul v. Bush, Shafiq Rasul and other detainees held by the U.S. military at Guantanamo Bay, Cuba, challenged the right of the U.S. government to classify them as enemy combatants and to hold them indefinitely. An enemy combatant is effectively a prisoner of war, though he or she cannot be called such as there is not currently a declared war against a recognized country. The detainees argue that holding them without access to federal courts violates the constitutional right to habeas corpus, which allows them to challenge the legality of their detainment.
As the government pointed out, however, these detainees are foreign prisoners captured outside the United States and thus are not subject to the same rules as, say, a thief inside the country. This is the legal precedent set during World War II regarding German prisoners of war captured in Japan, a precedent which bows to the ability and experience of military commanders in the field to recognize who is or is not an enemy combatant. The Supreme Court unwisely overthrew this legal precedent, however, and in doing so greatly expanded its own power into a realm where the average judge has very little real-world knowledge.
Yet not all of the justices agreed, nor does the Senate. In a dissenting opinion endorsed by former Chief Justice William Rehnquist and by Justice Clarence Thomas, Justice Antonin Scalia called the decision "an irresponsible overturning of settled law in a matter of extreme importance to our forces currently in the field." He called the Court's decision an "unprecedented" expansion of its power and called for Congress to correct the situation. Fortunately, this is exactly what the Senate is trying to do.
In limiting the ability of detainees to sue in federal courts, the Senate bill does not, as many critics argue, give the military uncontrollable power to imprison foreign citizens at will or to violate their rights. As The Washington Post reports, the detainees are unquestionably allowed the right to have their status as an enemy combatant reviewed by the Second Circuit Court of Appeals in the District of Columbia. What the bill does do, however, is limit their ability to file a habeas corpus suit for unlawful detainment.
What must be remembered is that these detainees overwhelmingly are not U.S. citizens, and by Supreme Court precedent in prisoners-of-war cases, are not legally entitled to the same constitutional protections. Those few who may be U.S. citizens have committed treason and will be treated in accordance with the Constitutional provisions for it.
More importantly, these detainees are likely terrorists. Though they cannot technically be called prisoners of war as there is no internationally recognized terrorist nation we are at war with, these people are nonetheless engaged in a war versus the United States, our forces in the field, our allies and even against civilians under our protection. Releasing these detainees or preventing the future capture of such terrorists because they are called "enemy combatants" would only send them back into the field to carry out even more attacks.
This new precedent directly threatens the ability of the United States to conduct war and to protect itself from the terrorist threat. John Yoo, an analyst with the American Enterprise Institute, calls it an "unprecedented expansion into what had always been considered the ultimate preserve of the political branches" and calls for the president and Congress to restore the supremacy of what he calls "battlefield decisions."
The Senate provision regarding terrorist detainees is a critical step to ensuring our ability to fight the war on terror and to protect Americans and our allies abroad. The Supreme Court's irresponsible decision ignores the reality of what terrorists are and what they are not based on a series of legal technicalities. This is a very new and important change for the U.S. legal system, because it takes that decision away from the military experts in the field and puts it before a panel of judges with little to no experience in the area. The Senate's provision is therefore essential to the long-term security of the United States and to restoring the balance of power within our federal system.
Allan Cruickshanks' column appears Tuesdays in the Cavalier Daily. He can be reached at acruickshanks@cavalierdaily.com
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