Jewish World Review April 23, 2004 / 2 Iyar, 5764

Robert Robb

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Accusations that the Bush administration has been shredding civil liberties are hyperbolic | President Bush consistently and emphatically refers to protecting this country against terrorism as a "war."

On September 11, 2001, it certainly felt like war.

In fact, I wrote at the time that Congress should formally declare war on al-Qaida and related organizations, an orienting act of clarity that I still think would have been valuable.

There are other circumstances, however, for which the war construct less comfortably fits, illuminated by the cases the U.S. Supreme Court is hearing about suspected terrorists being detained without charges by the U.S. government.

This week, the court heard oral arguments about whether it has jurisdiction over foreign prisoners captured in Afghanistan and now being held in Guantanamo.

Next week, it will hear arguments about two U.S. citizens - one also captured in Afghanistan; the other in the U.S. - being militarily detained as "enemy combatants."

The administration has been criticized for not granting prisoner of war status under the Geneva Conventions to the Guantanamo detainees.

And there is an inconsistency in the administration's position. We are at war with al-Qaida and the Taliban. But those who fight on their behalf aren't to be treated as being at war with us.

The administration relies on a technicality to justify not abiding by the Conventions: those fighting against us don't wear uniforms.

On the other hand, the Conventions don't really fit the fight against terrorism. Under them, those captured only have to give identifying information. But incapacitating terrorism requires, more than anything else, intelligence. Adhering to the Conventions would probably preclude the aggressive interrogation techniques being employed in Guantanamo.

The Conventions also require that prisoners of war be released when the war is over. But when will that be? When Afghanistan is more secure? Or when al-Qaida is vanquished?

And if the latter, how is that to be determined? I doubt there's going to be an armistice signing with Osama bin Laden.

The U.S. criminal courts don't fit the fight against terrorism, either. This is at least some kind of a war, if the memory of 9/11 means anything. And those who take up arms against the United States are not entitled to the protections of its liberties.

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The cases involving U.S. citizens are equally vexing. Yaser Hamdi was born in the United States, raised in Saudi Arabia, and was captured fighting for the Taliban in Afghanistan. The government believes that Jose Padilla, captured in Chicago, plotted with al-Qaida to detonate a radiological bomb in the United States.

Both have been militarily detained for around two years without charges being brought.

Ordinarily, of course, U.S. citizens cannot be so detained. That's one of our fundamental liberties.

The constitution does give Congress the ability to suspend the right of habeas corpus "when in cases of rebellion or invasion the public safety may require it." Congress has not so acted.

The Bush administration contends the presidency has inherent authority for such detentions. But hard to argue for an inherent right to a power expressly given to Congress, particularly when, in 1971, Congress plainly forbid detention of U.S. citizens except pursuant to laws it has passed.

Alternatively, the administration says such detentions were approved by Congress in the post-9/11 use of force resolution. But that's quite a stretch of the language and one without obvious limitations.

Accusations that the Bush administration has been shredding civil liberties are hyperbolic. Of some 10,000 combatants captured in the Afghanistan war, only about 700 were transferred to Guantanamo. Domestic detentions without charges have been very rare.

Nevertheless, unchecked detention authority is contrary to U.S. principles.

By being slow to recognize this, the Bush administration has risked unwelcome and unwise criminal court oversight.

The administration only recently started releasing prisoners from Guantanamo and designating others for military tribunals. In March, the defense department finally announced plans for an annual review of Guantanamo detainees somewhat comparable to Geneva Convention requirements. Given its toxic partisanship, Congress may not be up to the task, but striking the right balance would best be done by it.

Constitutional law professor Thomas Powers has proposed a new terrorism court to review domestic detentions, with wider evidentiary rules and the ability to maintain the secrecy of government information.

The threat of terrorism will be with us for a while. New mechanisms are needed to provide authority sufficient to meet the threat, with appropriate checks on the exercise of that authority.

JWR contributor Robert Robb is a columnist for The Arizona Republic. Comment by clicking here.


04/16/04: Learning the limits
04/14/04: Aug. 6 memo is not even a water pistol, much less a smoking gun
04/11/04: Once 9/11 Commission's political theater ends, we must debate real security issues
04/09/04: Fact checking Kerry's federal budget plans
04/08/04: Should the transfer of sovereignty in Iraq be delayed beyond the current deadline?
04/02/04: Kerry's tax epiphany makes some cents
03/31/04: What could have prevented 9/11
03/26/04: Knock off the high-stakes blame game
03/23/04: McCain a ‘straight talker’? Who is he kidding?
03/17/04: Bin Laden makes distinctions?
03/12/04: In the dangerous neighborhoods, cause for hope, if not yet optimism
03/01/04: Greenspan view scary, but Dems in denial

02/27/04: How not to achieve a mandate

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