November 13, 2005 | National Review Online

Restoring Law & Order

The Senate finally acts to eject al Qaeda from our courts.

P. Sabin Willett, one of the lawyers who has flocked to Guantanamo Bay to volunteer his services in aid of America’s enemies, has a specious op-ed in Monday’s Washington Post. He charges the Senate with having voted “to abolish the writ of habeas corpus” last Thursday. In truth, the upper chamber sensibly–and finally–voted no longer to abide the Supreme Court’s invitation to al Qaeda to use the U.S. courts as a wartime weapon against the American people.

The Great Writ remains alive and well. It is preserved in the Constitution's Suspension Clause (Art. I, Sec. 9) and has been extended by statute (28 U.S.C. Sec. 2241 et seq.). But it was never meant to apply to alien enemy combatants captured by the U.S. military and held overseas in wartime.

Such persons have no rights under our Constitution. The Supreme Court's extending the writ to them in the 2004 case of Rasul v. Bush was — as Justice Scalia explained in dissent — a travesty based, among other things, on a misinterpretation of the habeas statute. (I've previously discussed Rasul here.)

The shame of all this is that it has taken our national legislature nearly a year-and-a-half — during all of which we have been at war — to stir itself to address this serious national security problem.

Congress, of course, cannot change the Constitution. (Only the Supreme Court can do that — or so we have been led to believe.) Congress is fully empowered, though, to clarify a statute that the Court has misconstrued (or, at least, has read in a way different from what Congress intended).

It could thus have reversed Rasul the next day. And it should have. Predictably, the ensuing 16 months have seen unaccountable judges making mischief. Some have granted terrorists rights enjoyed by criminal defendants, such as the assistance of counsel, to be paid for by the Americans they are trying to kill. One even attempted to rewrite the Geneva Conventions to give al Qaeda guerrillas the same prisoner-of-war protections the treaty reserves for honorable combatants (i.e., soldiers whose operations seek to avoid, rather than cause, civilian casualties).

That latter case, Hamdan v. Rumsfeld, is exceedingly important. The off-the-reservation Geneva Conventions ruling by federal district Judge James Robertson was resoundingly reversed earlier this year by a unanimous panel of the U.S. Court of Appeals for the D.C. Circuit. But Hamdan — a terrorist so trusted by al Qaeda's inner circle that he served as Osama bin Laden's personal driver and bodyguard — has appealed to the Supreme Court. There, the new chief justice, John Roberts, has recused himself because he was a member of the circuit-court panel that wisely reversed Judge Robertson.

This means that unless Congress intervenes, this case, which presents the core separation-of-powers issue of who ultimately controls America's war-fighting operations — military commanders or federal judges? — would be decided by only eight members of the Supreme Court. And those eight would include at least five who voted in Rasul to put the courthouse welcome mat out for our enemies. (A sixth such vote was cast by retiring Justice O'Connor, who is likely to have been replaced by President Bush's nominee, Judge Samuel Alito, by the time Hamdan is argued in March 2006.)

The bill sponsored by Senator Lindsey Graham to end all this madness — a bill that still has a long way to go before it becomes law — would simply return us to the status quo that existed for centuries before Rasul. Capturing and holding alien enemy combatants is an essential part of war-fighting. Our system commits war-fighting to the executive branch and its military professionals, not robed lawyers. While terrorist-rights advocates portray the Senate action as a radical evisceration of fundamental rights, it is they who seek a new paradigm — one that is both radical and, from a national security perspective, suicidal.

Willett argues that habeas corpus must be available to the enemy because errors can be made, as one was in the case of his client, a detainee identified in the op-ed as “Adel.” But Willett's own argument proves him wrong.

It may be freely conceded that the detainee in question turns out not to be an enemy combatant after all. Instead, Adel is evidently one of several Muslim Uighurs from China, being held in Guantanamo Bay after they were captured in Pakistan and mistaken for al Qaeda militants. (We discussed the Uighurs' plight in The Corner a few months back — see Mark Krikorian's initial post and the discussion thereafter).

Willett claims that the error was discovered only because the U.S. courts were made available to alien enemy combatants detained in Gitmo. Nonsense. Court intervention was not needed to establish Adel's innocence. That, instead, was demonstrated by the regular military process: the combatant-status review tribunal, which all detainees are afforded, exonerated him.

Yes, Adel is still in custody. But that is not because of the war on terror. Instead, we have to find a country willing to take him. No doubt the military would be delighted to be able to send him and his countrymen home forthwith. But, alas, Adel cannot be sent home. In China, even Willett concedes, “Muslims like Adel are routinely tortured.” Sending him there would thus violate America's obligations under the United Nations Convention Against Torture and Cruel, Inhumane and Degrading Treatment — the treaty human-rights activists are often found waving at the Bush administration when they are not complaining about the Gitmo detentions.

There can be no gainsaying that Adel has gotten a raw deal. But he presents a separate, admittedly maddening, immigration problem. His case does nothing to undercut the general proposition that enemy captives may and should be held in wartime until the cessation of hostilities — a law of war older than the United States itself, and one that is designed to end the fighting more rapidly, saving lives.

If a federal judge were permitted to decide Adel's habeas-corpus petition, the ruling would be exactly the same as the one the military has already arrived at: Adel is not an enemy combatant and should be released. Aside from being legally pointless, such a judicial determination would do nothing to alter the facts that Adel would have no right to immigrate to the United States and that an appropriate country willing to take him still has to be found.

Senator Graham and his colleagues deserve enormous credit for the long-overdue action to get judges out of the war-management business. The federal courts are a pillar of our government — the bulwark protecting Americans from overbearing action by the political branches. They do not exist outside and above our body politic as an open forum in which all the world — including that part of it bent on destroying our way of life — is free to press its case against the United States.

Andrew C. McCarthy, a former federal prosecutor, is a senior fellow at the Foundation for the Defense of Democracies.