Politics & Policy

Tribunals and Tribulations

Congressional Democrats, aided and abetted by some of the usual Republican suspects, continue to agitate against the law on the detention and trial of terrorist detainees — a law that passed with broad bipartisan support, that has survived key court challenges, that appears to be working, and that already confers unprecedented rights on enemy combatants captured in wartime. The top item on their agenda is habeas-corpus rights for jihadists — a puzzling priority for Democrats who keep telling the country that they really do want to fight al Qaeda . . . just not in Iraq.

We should say additional habeas-corpus rights for jihadists. It is a canard that Guantanamo Bay, Cuba, is a “legal black hole,” and that detainees have no right to challenge the legality of their detention and trial proceedings in federal court. A fiction is still a fiction no matter how often the New York Times reports it as fact.

Maybe they should not have that right. There is a very powerful constitutional argument that enemy operatives captured during hostilities should have no right of access to American civilian courts. The rights enshrined in the Constitution belong to members of the American body politic; they have never been thought to benefit non-Americans outside U.S. territory, much less alien enemy combatants waging war against the United States.

Thus, enemy combatants who flout the laws of war (by, for example, deliberately massacring civilians) have been tried by military commissions, not civilian courts, since Gen. George Washington ordered such commissions during the Revolutionary War. In the wars of our nation’s history, moreover, U.S. forces have held over two million foreign prisoners; until three years ago, none was deemed to have a right to haul the executive branch into court at the very time it was actively fighting such enemies on behalf of the American people. And even when the Supreme Court purported to discover such a right in Rasul v. Bush, the justices did not claim to locate it in the Constitution; they found it, instead, in the federal habeas-corpus statute.

This is a crucial distinction. When it comes to rights created by statute, Congress is always free to eliminate or amend — especially “rights” Congress never intended to confer in the first place. The federal habeas corpus statute was designed to aid Americans in actuating their constitutional right to challenge confinement caused by executive overreach. Like the Framers of that constitutional habeas right, the authors of the habeas statute would have been appalled by the suggestion that the law they wrote had opened the doors of U.S. courts so that foreign enemies could use them to question actions taken in military operations Congress itself had endorsed.

After Rasul, Congress, in the 2005 Detainee Treatment Act, carefully amended, but did not eliminate, this remarkable new privilege of judicial review for wartime prisoners. It forcefully reaffirmed this modification in the 2006 Military Commissions Act — following the Supreme Court’s awful Hamdan v. Rumsfeld decision, which had cast doubt on the president’s authority to order military trials absent congressional assent.

Congress’s construct makes eminent sense. The military tribunals, delayed interminably since 2001 (mainly owing to aggressive lawyering in behalf of the detainees), are to go forward in the military justice system. Each detainee is entitled to a combatant-status review tribunal in order to verify his status as an enemy combatant. In addition, any detainee who is actually charged with a war crime (which is expected to be only a fraction of the remaining approximately 350 prisoners) is entitled to a military-commission trial. The detainees are then permitted to appeal the results of these tribunals and trials through the higher military courts.

Finally, when all avenues of military appeals are exhausted, any detainee who has been ruled an enemy combatant at a tribunal, as well as any detainee who has been convicted in a commission trial, will have an extraordinary right — unprecedented in the history of U.S. warfare — to challenge the military proceedings in the civilian court system.

Critics risibly contend that this grant of judicial review is somehow a “denial” of habeas corpus or, almost as absurdly, that the detainees’ “right” to judicial review has been narrowed to the point of meaninglessness. Both these fallacies are premised, of course, on the false assumption that alien wartime detainees have a constitutional entitlement to habeas in the first place. In truth, Congress was required to grant them nothing. Thus, the unprecedented provision of court review to our terrorist enemies — a privilege honorable prisoners of war never had in the previous two centuries — is actually quite generous.

The more specific complaints are also preposterous. Critics say that federal judicial review is delayed until the end of military proceedings, and that this may take years. But American citizens seeking federal judicial review of alleged abuses by the state courts must exhaust their state remedies before they may seek federal habeas. The military justice system not only has great pedigree and integrity; it is also more efficient than many state court systems. Why should alien terrorists held outside the U.S. have a more streamlined path to the federal courthouse than our own citizens?

Critics further claim the legislation unduly curtails judicial review because the prisoners do not get to file habeas petitions in federal district courts. As the Times disingenuously put it in one report, the detainees “may only petition a single federal appeals court (emphasis added). The claim is ridiculous. First, habeas is a right of federal judicial review, not review in a particular federal court. Second, “a single federal appeals court” happens to be a higher federal court than the single district court to which U.S. citizens must petition for a writ of habeas corpus; it is where citizens’ petitions are routed for review after federal district courts have developed a factual record — something unnecessary here, where a full factual record on the relevant issues will have been developed in the military court system. Third, the particular appeals court chosen by Congress is the U.S. Court of Appeals for the D.C. Circuit, often regarded as second only to the Supreme Court in our judicial hierarchy. And fourth, given that the country is at war and detainee proceedings inevitably involve classified information, it makes perfect sense that Congress should want all such proceedings directed to a single, highly competent court which can develop expertise in the relevant issues. Indeed, the desirability of developing specialized judicial national-security expertise was the rationale for Congress’s 1978 creation of the Foreign Intelligence Surveillance Court — a tribunal Bush detractors have praised for nearly two years.

Finally, critics repeatedly assert that Congress has limited the D.C. Circuit to examining whether the tribunal and commission proceedings conformed to the military’s established rules. This is simply not true. In addition to determining whether the military followed its own procedures, the legislation expressly calls on the court to consider “to the extent the Constitution and laws of the United States are applicable, whether the use of such standards and procedures . . . is consistent with the Constitution and laws of the United States” (emphasis added). That is, the detainees will be permitted not merely to argue that military procedures were not followed, but that the procedures themselves fall short of what federal law requires.

Although Congress did not label this right “habeas corpus,” it is the essence of habeas corpus: The ability to have a U.S. court review whether one’s confinement, conviction, or sentence is invalid under federal law.

Liberals are forever trying to impose the courts as a “check and balance” on executive action. How about letting the D.C. Circuit do its job? That plainly was the message the Supreme Court sent last month when it declined to disturb a D.C. Circuit ruling that ordered the military commissions to go forward. Given the solicitude federal courts have accorded detainee claims for the past six years, there is no reason to believe the D.C. Circuit will do anything other than subject the military proceedings to exacting review at the appropriate time — after those proceedings have had a chance to run their course and demonstrate their fairness. And it bears noting that the D.C. Circuit’s rulings can then be appealed, under Congress’s formula, to the Supreme Court itself.

Under current law, Congress has provided for meaningful review of military tribunals in the well-respected military appellate system, then in a top civilian federal appeals court, and then in the nation’s highest court. We have every reason to think that any due-process violations will be exposed and, if sufficiently egregious, made the grounds for reversal. In the highly unlikely event that this system fails, nothing would prevent Congress, at that point, from tailoring a new remedy to address the specific problem. In the meantime, detainees already have extraordinary rights of access to our courts. Wouldn’t Congress’s time be better spent making sure our troops have the resources they need for battle than giving our enemies additional bites at the judicial apple?


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