Bork on Detaining Enemy Combatants

Well, whaddaya know, former Supreme Court nominee Robert Bork agrees with me about the lawfulness of detaining enemy combatants. I’m not used to agreeing with Bork, given that he’s a majoritarian conservative & I’m a libertarian (see Stephen Macedo’s “The New Right vs. the Constitution” for a good critique of Bork’s school of jurisprudence). Still, even a stopped clock is right twice a day:

According to critics, by depriving certain captured individuals of access to lawyers, and by holding them without filing charges, the government is violating the Geneva Convention’s protections of lawful combatants or prisoners of war. This is nonsense.

Four criteria must be met to qualify a person as a lawful combatant. He must be under the command of a person responsible for his subordinates; wear a fixed distinctive emblem recognizable at a distance; carry arms openly; and conduct operations in accordance with the laws and customs of war. The men the United States has captured and detained so far do not meet these criteria.

The government’s policy is as follows: if a captured unlawful enemy combatant is believed to have further information about terrorism, he can be held without access to legal counsel and without charges being filed. Once the government is satisfied that it has all the relevant information it can obtain, the captive can be held until the end of hostilities, or be released, or be brought up on charges before a criminal court.

The government chose one of these options when it charged John Lindh, an American citizen who fought with the Taliban in Afghanistan, and Zacarias Moussaoui, who is thought to have been involved in the planning for September 11, with crimes. Lindh entered into a plea agreement under which he was sentenced to twenty years in prison. Moussaoui’s case has proved more complicated. The government proposes to use only unclassified materials in its prosecution, but Moussaoui, a French citizen of Moroccan heritage who has admitted in open court to belonging to al Qaeda and swearing allegiance to Osama bin Laden, has demanded to see classified materials and to have access to other captured terrorists for the preparation of his defense.

For obvious reasons, Moussaoui’s demands are unacceptable to the government, which does not want to divulge classified information or allow terrorists to communicate with each other. But the prosecutors’ offer of an alternative procedure was rejected by the presiding judge. If the government continues to be unsuccessful in its determination to protect classified information, it may decide to prosecute Moussaoui in special military tribunals created for trying terrorists. That would surely trigger the outrage of civil libertarians, even though it is plainly arguable that Moussaoui could and perhaps should have been prosecuted there in the first place. I will return to this issue below.

In a somewhat separate category from Lindh and Moussaoui, both of whom have been charged with actual crimes, are the cases of two American citizens who have been detained rather than brought to trial because the government believes they possess undivulged valuable information. Yaser Esam Hamdi remains confined to the Norfolk Naval Brig, and José Padilla is confined at the Consolidated Naval Brig in Charleston. Neither man has yet been charged.

Hamdi filed a petition for habeas corpus challenging the legality of his detention. Although he was captured in Afghanistan, where he was carrying an AK-47 during a time of active military hostilities, and although he was classified by the executive branch as an unlawful enemy combatant, Hamdi claimed the full protections of the Constitution as an American citizen. He argued that his detention without charge and without access to a judicial tribunal or the right to counsel was in violation of the Fifth and Fourteenth Amendments.

The Court of Appeals for the Fourth Circuit held otherwise. Although the detention of U.S. citizens is subject to judicial review, that review must be “deferential.” The Constitution explicitly confers war powers on the political branches; in going to war in Afghanistan, the President had relied both on those powers and on Congress’s authorization of “all necessary and appropriate force” against nations, organizations, or persons he determined to be involved in terrorist attacks. Hamdi, the court said, was indeed an enemy combatant subject to detention. It elaborated its rationale:

The detention of enemy combatants serves at least two vital purposes. First, detention prevents enemy combatants from rejoining the enemy and continuing to fight against America and its allies. . . . In this respect, “captivity is neither a punishment nor an act of vengeance,” but rather “a simple war measure.”

Second, detention in lieu of prosecution may relieve the burden on military commanders of litigating the circumstances of a capture halfway around the globe. . . . As the Supreme Court has recognized [in Johnson v. Eisentrager (1950)], “it would be difficult to devise more effective fettering of a field commander than to allow the very enemies he is ordered to reduce to submission to call him to account in his own civil courts and divert his efforts and attention from the military offensive abroad to the legal defense at home.”

Hamdi’s petition was denied, as was his right of access to an attorney or to seeing government documents.

Padilla was arrested upon his arrival at Chicago’s O’Hare airport from Pakistan. The government indicted him, claiming he planned acts of terrorism, including the explosion of a radioactive “dirty bomb.” When, like Hamdi, he petitioned for habeas corpus, the court held similarly that “the President is authorized under the Constitution and by law to direct the military to detain enemy combatants.” Nevertheless, and over the government’s objection, the court said it would allow Padilla the assistance of counsel to litigate the facts surrounding his capture and detention. (The government is now appealing this.) At the same time, the court disallowed the presence of counsel at Padilla’s interrogations, and averred that the government need only show “some evidence” to prevail.

Anthony Lewis went ballistic. It is, he wrote, a “fundamental truth” that an individual cannot get justice against the state without the effective help of a lawyer, and this truth was “being challenged in a way that I did not believe was possible in our country.” But Lewis was completely wrong. Despite his attempt to conflate the two categories, detention is not punishment; its purpose, rather, is to prevent members of enemy forces from causing harm while hostilities are in progress. Nor is Padilla the subject of a criminal proceeding; criminal law rules do not apply when detention of an enemy is ordered by the President under his war powers. Hundreds of thousands of lawful prisoners of war have been held by the United States without the right to a lawyer, and unlawful enemy combatants are entitled to even fewer rights.

This makes perfect sense. A judicial system with rights of due process is crucial to a free society, but it is not designed for the protection of enemies engaged in armed conflict against us. Nor can we divert resources from the conduct of a war to the trial of every POW or unlawful combatant who wants to litigate. Besides, giving someone like Padilla a lawyer would frustrate the very purpose of his detention, and place American lives in danger. A lawyer’s duty, acting within the bounds of ethical behavior, is to create delay and confusion, keeping alive his client’s hopes of going free. Armed with such hopes, Padilla would be all the less likely to divulge what he knew, and plans for future terrorist attacks might thereby go undetected.

It might be argued that Padilla is not like other unlawful enemy combatants because he is a U.S. citizen taken on American soil. But the Supreme Court disposed of that distinction as long ago as 1942 in Ex parte Quirin. In that case, German would-be saboteurs had entered the U.S. illegally with the intention of attacking war industries and facilities. Upon capture, they sought habeas corpus, claiming a right to trial before a regular court rather than a military tribunal. In denying the petition, the Court deemed it irrelevant that one of the captives claimed U.S. citizenship and was on U.S. soil when apprehended.

One thought on “Bork on Detaining Enemy Combatants”

  1. “I’m not used to agreeing with Bork, given that he’s a majoritarian conservative & I’m a libertarian”

    Nothing surprising about Bork’s position.

    (Which, by the way, assumes Padilla’s status and guilt.)

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