ven as the terrorist attacks were taking place last September 11, President Bush made use of the extraordinary authority he has to protect Americans from enemy action. Had the heroes of United Flight 93 not prevented their hijacked plane from reaching Washington, F-16s deployed by President Bush would have shot down the plane full of American citizens. There is no question that this first defensive action taken by the president in the war on terrorism was a lawful exercise of his executive powers. Yet editorial writers and legal analysts who were untroubled by the president's awesome authority to sacrifice some American lives to safeguard others now argue that his equally well-established authority to detain enemy combatants in military custody poses a monumental threat to our liberties.
The detention of Yaser Hamdi in a Navy brig in Norfolk, Va., has prompted hysterical commentary. The Rocky Mountain News declared, "The Bush Administration is making a breathtaking assertion of its right to imprison an American citizen indefinitely, without access to a court or a lawyer, simply by designating the citizen an 'enemy combatant.'" Because this "breathtaking assertion" is accurate as a matter of law, such editorial outrage is usually accompanied by either citations to inapplicable legal authority or no mention of any controlling law at all. The critics are confusing the procedural safeguards that apply to criminal detention with the wartime precedents that govern military custody of enemy combatants and their propaganda risks damaging the president's ability to protect American lives.
Federal district judge Robert G. Doumar, who is presiding over Hamdi v. Rumsfeld, shares this confusion. Hamdi, armed with a Kalashnikov rifle, was captured in Afghanistan late last year when his Taliban unit surrendered to Northern Alliance forces. He told interrogators that he was a Saudi citizen, born in the U.S., who had come to Afghanistan the previous summer to train and fight with the Taliban. Hamdi was sent to Guantanamo Bay with other detainees, and later transferred to Norfolk when it was confirmed that he was born in Louisiana, where he lived with his Saudi parents until they returned to the Kingdom when he was three years old.
Although critics hammer John Ashcroft over the detention of Hamdi, the Taliban fighter is actually in defense secretary Donald Rumsfeld's custody-based on Hamdi's classification as an unlawful enemy combatant. Clearly, lawful combatants held as POWs under the Geneva Convention can be held until the end of hostilities without the right to legal representation to challenge their detention. Such detainees face no criminal charges, and their detention is not punitive. They are imprisoned in order to prevent them from serving with the enemy's forces, and to permit our military to gather as much intelligence as possible from them. Once a lawyer counsels his client to remain silent, a crucial opportunity to glean intelligence is lost.
Citizens and non-citizens alike can be classified as enemy combatants. Gaetano Territo, an American citizen, was captured fighting with the enemy in Italy during World War II. The Ninth Circuit Court of Appeals ruled that his citizenship had no bearing on his lawful detention, which had lasted three years by the time of the court's decision.
Unlike the non-citizen combatants held at Guantanamo, Yaser Hamdi does have the right to have his habeas corpus petition considered. His supporters are arguing that his transfer to Norfolk should have been accompanied by the services of a Johnnie Cochran to defend his rights. Twice, Judge Doumar has issued unprecedented orders that this captured enemy combatant have private, unmonitored access to a lawyer, and twice the Fourth Circuit Court of Appeals has stayed his orders. The appeals court declared: "It has long been established that if Hamdi is indeed an 'enemy combatant' who was captured during hostilities in Afghanistan, the government's present detention of him is a lawful one." The court thus upheld what the St. Louis Post-Dispatch called the administration's "extraordinary claim." (The confused editorial allowed that Hamdi "is clearly an enemy combatant," but mistakenly cited the Sixth Amendment's right to counsel "in all criminal proceedings" as applicable to military detention.)
The appeals court laid out the appropriate standard of review for the lower court in determining whether Hamdi was properly classified as an enemy combatant. The Fourth Circuit cited the Supreme Court's decision in the case of eight captured Nazi saboteurs, including at least two naturalized U.S. citizens, who traveled by submarine to Florida and Long Island, intending to attack military production facilities: "In World War II, the Court stated in no uncertain terms that the President's wartime detention decisions are to be accorded great deference from the courts." In contrast to today's editorial opinions, which obsess over the alleged rights of enemy agents, editorialists 50 years ago directed their outrage at courts that intervened inappropriately in military affairs. When the Supreme Court decided to review the hasty, secret military trial of the Nazi saboteurs, the Detroit Free Press reacted angrily: "Realism calls for a stone wall and a firing squad, not a lot of holier-than-thou eyewash about extending the protection of civil rights to a group that came among us to blast, burn, and kill."
Despite the higher court's determination that Judge Doumar was obliged to accord "great deference" to the Defense Department's classification of Hamdi as an enemy combatant, Doumar remains curious about all of the circumstances surrounding Hamdi's capture. He has continued to refuse to find the two-page declaration giving a factual account of Hamdi's surrender and admissions filed on behalf of Secretary Rumsfeld sufficient to establish a proper classification. Dou mar's desire to second-guess the military determination that an armed individual captured with enemy forces in a foreign land is an enemy combatant invites the "special hazards of judicial involvement in military decision-making" that the higher court warned him against.
Critics argue that the administration's insistence that courts butt out of such military determinations threatens the separation of powers. But allowing a federal judge to substitute his own military expertise for that of the Defense Department would do grave danger to the shared responsibility for military affairs that as the Fourth Circuit pointed out in the Hamdi case "Articles I and II prominently assign to Congress and the President." Given the lethal threat posed by terrorists in our midst, Americans should be reassured that during wartime the branches of government charged with waging war and protecting American lives take precedence over a judicial branch populated by lawyers dedicated to the proposition that it is better for 99 guilty individuals to go free than for one innocent to be improperly detained.
Despite the thoroughly settled constitutional order governing military affairs, the normally sensible constitutional-law professor Jonathan Turley recently alleged inaccurately that Attorney General Ash croft has an "announced desire for camps for U.S. citizens he deems to be 'enemy combatants.'" Tellingly, even this law professor doesn't cite a single legal authority for his objection to the detention of Yaser Hamdi. Turley notes the different treatment accorded John Walker Lindh, who was given a lawyer and trial; but the fact that the administration elected not to charge Hamdi criminally doesn't render his military detention unlawful.
The administration is also being harshly criticized for the military detention of Abdullah al-Muhajir, a.k.a. Jose Padilla, the Chicago native who trained with al Qaeda and took part in discussions about plans to detonate a dirty bomb. The Pittsburgh Post-Gazette thought the administration should be embarrassed to be taking such precautions with a "small fish" such as al-Muhajir. But should "small fish" Hani Hanjour also have been unworthy of caution on the part of authorities? Hanjour, a barely five-foot-tall, shy, pious-seeming Saudi who had no known affiliation with any Islamic extremists, trained at various American flight schools over a five-year period. Although he got his commercial pilot's license in 1999, his flying skills were so poor that in August 2001 a Maryland flight school refused to rent him a plane. A month later he flew American Flight 77 into the Pentagon.
Terrorist masterminds aren't being dispatched to kill Americans. The likes of Abdullah al-Muhajir and Yaser Hamdi are the kind of detainees the government must hope will reveal information that will prevent future attacks and lead to the capture of fellow foot soldiers. It is the president's responsibility to do everything in his power to defend American lives, and that authority includes detaining enemy agents. Our lives depend on it.