I would not have thought that four short years after 9/11, two branches of the federal government would be taking what are historically extraordinary measures to grant unprecedented due-process rights to unlawful enemy combatants held overseas. In 1950, in Johnson v. Eisentrager, the Supreme Court held it did not have the authority to take up a challenge by 21 German nationals held in China, who were tried and convicted by U.S. military tribunals. In 2004, in Rasul v. Bush, the Court reversed course and held that U.S. civilian courts would be open to foreign enemy combatants held overseas. I strongly criticized that decision at the time. And next March, the Court will decide whether the president has the authority to set up military tribunals in a case involving Salim Ahmed Hamdan, an al Qaeda member close to Osama bin Laden. Military tribunals have a long tradition in this country.
It seems an odd priority to me to be revisiting this now, when the enemy has succeeded where others had failed (by killing nearly 3,000 U.S. citizens on U.S. soil, and threatening to do far worse), and these tribunals have been used by presidents far more aggressively for over two centuries. Indeed, since the Supreme Court’s Rasul decision, lower courts have issued rulings conferring a wide range of due-process rights and protections on the enemy. The judiciary’s increasing involvement in an area where it has historically understood the limitations of its competence and reach is extremely troublesome.
As for the Senate’s overwhelming vote to codify the treatment of these detainees, there are serious downsides. First, this isn’t about torture. The administration has made clear that torture will not be tolerated, and those who use it will be punished. Is there any evidence demonstrating the contrary? Certainly not on any kind of widespread basis. Those who mistreated prisoners at Abu Ghraib were already violating military law and policy, for which they were punished.
Second, John McCain, the leading advocate of codification, argues that one important reason for his approach is to address the perception problem held by certain countries, i.e., that the U.S. tortures prisoners. Any foreign government that believes this won’t likely be discouraged in that view because Congress passes a law based, in part, on addressing their false perceptions. I believe their real problem, apart from likely animus some of these governments have for us, is that U.S. law (at least up to now) does not comport with their law, which confers rights on unlawful enemy combatants. They, like the Clinton administration, seek to fight terrorism in the courtroom, which they perceive as far more civilized.
Third, while it is true that the judiciary no longer seems willing to exercise restraint in these cases, codification typically leads to more litigation which leads to more judicial intervention. (I should note that McCain has actually argued that these detainees should be brought to the U.S. and tried in U.S. civilian courts, which would be disastrous for many reasons, including recruitment in our prisons, the further conference of due-process rights on the enemy, and the criminalization of the war on terrorism–where detainees’ rights are emphasized over detention, interrogation, and national security.) It is worth repeating that not even the Geneva Conventions confer such rights on this type of detainees. In fact, the Conventions make an exception for them, contrasting their illegal conduct to that of legal soldiers of war. The purpose is not only to recognize that countries have a right to protect themselves from those who don’t wage war according to accepted norms, but to discourage it (in our case, to discourage terrorism).
There’s far more that can and should be said about this, but I will simply conclude by pointing out that none of the actions the Court or Congress are justified on national-security grounds, i.e., they speak to the rights of the enemy, perceptions of others, etc.