The Lichfield Group

Modern warfare clashes with individual justice. As President John F. Kennedy said of life, war is unfair.

Many of the brave die by friendly fire or enemy treachery.

Terrorists expose innocent civilians to death by employing hospitals, ambulances, or mosques as instruments of war.

Private property destroyed to thwart an enemy attack does not require government payment of just compensation.

The United States does not scruple at these wartime tragedies. Defeat would trigger an even greater collective calamity; and, the greatest good for the greatest number is the governing creed for enlightened democracies during war.

Judges and lawyers instinctively flinch at wartime’s ready subordination of the individual to the collective. They are taught to celebrate every person’s right to due process of law as the aurora borealis of civilization. They are schooled to venerate procedures that reduce the risk of convicting even one innocent despite enabling thousands of the guilty to go free to compound their villainies.

The tension between the creed of judges and the creed of war found expression last month in a pair of United States Supreme Court rulings: Rasul v. Bush (June 28, 2004); and, Hamdi v. Rumsfeld (June 28, 2004). The first endowed Guantanamo Bay alien detainees captured in the war against Taliban and Al Qaeda with a right to challenge the legality of their detentions in federal courts through writs of habeas corpus. The second conferred on American citizens detained as illegal combatants by President George W. Bush until the war on terrorism concludes a right to a hearing to dispute their status before an impartial tribunal.

But the gathering and preserving of evidence from American soldiers confronting death is dubious to prove enemy combatant classifications. Soldiers are preoccupied with killing or capturing savage foes, not with developing chain of custody evidence or contemporaneous documents or photographs to disprove claims of wrongful identity. Moreover, the military holds no incentive to detain innocent bystanders. “Vacancy” signs are unknown at Guantanamo Bay detention facilities. On the other hand, the enemy is indoctrinated to prevaricate and to deceive in jihads against Christians, Jews, and others.

The vetting suggested by the Supreme Court’s decrees in Rasul and Hamdi may thus occasion false negatives. Genuine enemy prisoners may be released and return to killing Americans. Indeed, even before the Supreme Court spoke, the United States military at Guantanamo had voluntarily released at least five or six detainees under the mistaken belief that they had neither aided nor abetted the enemy. The errors have hiked mortal danger for all Americans.
The Court recognized its decisions treaded in uncharted moral and pragmatic waters. The opinions provided only Delphic guidance as to what procedures would satisfy due process, hesitant to handcuff soldiers fighting to defend the Supreme Court’s continuing relevance. That makes additional years of litigation and judicial supervision of the war against global terrorism inescapable.

In Hamdi, Justice Sandra Day O’Connor cautiously declared: “We therefore hold that a citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government’s factual assertions before a neutral decisionmaker…At the same time, the exigencies of the circumstances may demand that, aside from these core elements, enemy combatant proceedings may be tailored to alleviate their uncommon potential to burden the Executive at a time of ongoing military conflict. Hearsay, for example, may need to be accepted as the most reliable available evidence from the Government in such a proceeding. Likewise, the Constitution would not be offended by a presumption in favor of the Government’s evidence, so long as that presumption remained a rebuttable one and fair opportunity for rebuttal were provided.

Several pivotal procedural questions were left open by Justice O’Connor: whether detainees enjoy a right to counsel, access to classified information, and witnesses who would allegedly supply exculpatory testimony; and, whether an impartial military as opposed to a civilian review tribunal would satisfy due process. On July 7, 2004, Deputy Secretary of Defense Paul Wolfowitz, issued an order establishing a “Combatant Status Review Tribunal” for approximately 600Guantanamo detainees which purports to comply with Rasul and Hamdi.

Each detainee will be assigned a military officer with appropriate security clearances—but not a civilian lawyer—to assist in challenging his enemy combatant status before a three-member military tribunal. The members will be commissioned officers of the U.S. Armed Forces, none of whom was involved in the apprehension, detention, interrogation, or previous determination of the detainee’s status. The detainee will be excluded from all proceedings where his presence might compromise national security. He will be entitled to summon to his defense only “reasonably available” witnesses as determined by the tribunal. Further, “[i]f such witnesses are from within the U.S. Armed Forces, they shall not be considered reasonably available if, as determined by their commanders, their presence at a hearing would affect combat or support operations.” Enemy combatant status must be proven by a preponderance of evidence, with a rebuttable presumption in favor of the Government’s case.

If the Wolfowitz tribunals are held flawed by a federal judge, President Bush might order the transport of Guantanamo Bay detainees abroad to frustrate the narrow holding of Ramsul. That would unleash a new flurry of litigation and amateurish judicial meddling in war.

Shouldn’t judges know what they don’t know to forestall such folly?

Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein & Associates and The Lichfield Group.