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This Is War, and Military Justice Is Appropriate

Our Constitution can't be a cover for our enemies.

June 14, 2002|DOUGLAS W. KMIEC | Douglas W. Kmiec is dean of the Catholic University of America School of Law, distinguished policy fellow at Pepperdine University and former constitutional legal counsel to President Reagan and former President Bush.

We are at war. Whether one fully grasps that fact is what divides those who affirm the military detention of Yaser Esam Hamdi and Jose Padilla, also known as Abdullah al Muhajir, and those who don't.

Civil libertarians insist that the president has acted without authority in undertaking these detentions, betraying our most precious constitutional rights. This misstates the nature of the president's legal authority and does not distinguish between common criminals and those in league with terrorists--U.S. citizens or not--captured on the field of battle in Afghanistan or in clandestine dealings with Al Qaeda.

As long ago as 1582, international jurists made it plain that "brigands"--today's unlawful belligerents or unlawful combatants--"are not qualified to bargain about matters that only inure to the benefit of 'just' enemies." The Hague Convention in 1907 defined unlawful belligerency as lacking membership in a group with recognized command structure or uniform and engaging in secreting of arms or operations outside the laws of war--such as attacking unarmed civilian populations with passenger planes or "dirty" bombs.

So what should we do with unlawful combatants? The pirates of the 17th and early 18th centuries are the closest analogy in our national experience. These "enemies of mankind"--who didn't have nearly the money or nuclear or biochemical potential to wreak havoc, as does Al Qaeda--were described by common-law jurists in an 18th century South Carolina case as "brutes" and "beasts of prey." Lawful captors were admonished that "if they [could] not with safety to themselves bring them under some government to be tried [they are to be] put to death." This is somewhat harsher than being denied access to the local public defender.

Given the current threats to our security, President Bush's alternative of extended detention and humane interrogation is generous. Hamdi and Padilla, as American citizens, are not subject to military trial under the president's order of November 2001. Bush should rethink that exclusion. Supreme Court precedent makes it clear that even U.S. citizens who choose to become war criminals can be brought to justice before such tribunals. There is no definitive precedent, however, that insists that American-born war criminals be tried in federal court.

The Constitution is not a suicide pact, and those who live under it need not have their lives jeopardized by those whose fanatical, suicidal schemes place them outside the laws of both war and peace.

Should we be concerned that Padilla, an American citizen, is being denied the criminal justice system, while noncitizen Zacarias Moussaoui, who has made plain his hatred for Americans, gets the benefit of it? Frankly, yes. Moussaoui's referral to a regular civilian court was a mistake. He is as much an unlawful combatant as is Padilla, and we would be better off with him sitting in a brig somewhere being questioned. His arrest in the U.S. misled us. The supposition that the conspiracy charges brought against him could be proved without jeopardizing the war effort now seems incorrect. John Walker Lindh also makes use of the federal court system, but at least it seems likely that he has little or no information about any active terrorist plotting.

Despite the dangers that are seeking us out, many Americans resist accepting the war on terrorism as a real war. Thus the anxiety about trusting the president and the military to hold captives without counsel or specific criminal indictment will remain.

To answer it, Bush might consider a military review panel--not to try those being held in detention but simply to assess and periodically report on the need for further detention without charge. Hamdi, Padilla and the detainees in Cuba are not entitled to such review under the Geneva Convention. It would be an act of tremendous goodwill toward those who wish us none. And it might ease the minds of Americans as well.

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