War Is Not a Criminal Trial

The Washington Times (Washington, DC), February 8, 2005 | Go to article overview

War Is Not a Criminal Trial


Byline: Bruce Fein, SPECIAL TO THE WASHINGTON TIMES

According to U.S. District Court Judge Joyce Hens Green in In re Guantanamo Detainee Cases (Jan. 31), war is akin to a collective criminal prosecution.

Thus, captured enemy aliens held at Guantanamo Bay are crowned with a right to counsel with access to classified information and a right to suppress coerced confessions to challenge their status as enemy combatants.

The due process clause of the Fifth Amendment, Judge Green tacitly insisted, demands that the United States risk second editions of the September 11 abominations from erroneous releases and a boosting of enemy morale to avoid a wartime injustice to a single suspected alien terrorist.

But war's signature is injustice. Courageous men and women die in battle so others may enjoy government of the people, by the people, for the people. Innocent civilian bystanders are inescapable victims, whether in Baghdad, Dresden, Hiroshima or elsewhere. Scoundrels profit from black market transactions. Realpolitik shields archvillains from accountability, like Soviet dictator Josef Stalin, Japanese Emperor Hirohito or Iraqi Muslim cleric Muqtada al-Sadr.

The U.S. Supreme Court has predictably denied the Constitution condemns all wartime injustices in sustaining conscription in the Selective Draft Law Cases (1918), and the destruction of private property without compensation to prevent its exploitation by the enemy in United States vs. Caltex (1952). Judge Green's fretting over the possibility of injustice to an alien detainee at Guantanamo Bay was misplaced.

Congress authorized President George W. Bush to conduct war against global terrorism with "all necessary and appropriate force" against nations, organizations or persons implicated in terrorist attacks. Hundreds of enemy combatants captured both on and away from the battlefields of Afghanistan have been detained at Guantanamo, including aliens apprehended in Gambia, Zambia, Bosnia and Thailand.

Mr. Bush has determined, in accord with customary international law and practice, that Guantanamo's enemy combatants should be held indefinitely until the war against global terrorism concludes or until the military decides a particular detainee no longer is a threat to the U.S. or its allies and no longer has intelligence value.

Judge Green preposterously likened the alien enemy combatant detentions to criminal punishment: "Although detainees at Guantanamo Bay not subject to prosecution could suffer the same fate as those convicted of war crimes - potentially life in prison, depending on how long America's war on terrorism lasts - they were not given any significant procedural rights to challenge their status as 'enemy combatants,' at least until relatively recently. ... Short of the death penalty, life imprisonment is the ultimate deprivation of liberty, and the uncertainty of whether the war on terror - and thus the period of incarceration - will last a lifetime may be even worse than if the detainees had been tried, convicted, and definitively sentenced to a fixed term. …

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