By Paul Wilson

Trying times

Guantanamo detainees should get military trial due to 'enemy combatant' status

By: Nicholas Davis

Posted: 4/26/04

Ah, Cuba. The land of coveted cigars, a dictator with astonishing longevity and 600 "enemy combatants" confined to a U.S. military base - combatants "held with impunity, held without charges" some say.

The disturbing nature in which the Bush administration has confined these prisoners without charging them has finally been taken up by the U.S. Supreme Court, where many hope the prisoners will be granted the right to a federal trial.

Though the desire to limit the president's unchecked power is understandable, extending federal rights to these non-citizens may inadvertently have severe consequences.

The detainees want the protection of the habeas corpus statute, which states that anyone held by the U.S. government has the right to challenge confinement.

Complicating matters, however, is the precedent set by the court after World War II in Johnson vs. Eisentrager, which found that non-citizens confined outside the United States have no access to federal courts. Thus, habeas corpus does not apply.

Guantanamo was officially acquired by the United States in a 1903 lease with Cuba. And years later, a series of treaties - most notably one in 1934 - specified that while America had supremacy at Guantanamo, "ultimate sovereignty" remained Cuba's and that termination of the lease required the signatories of both parties.

Opponents of the Bush administration, however, claim that because Cuba has no authority pertaining to the governing of Guantanamo, the United States truly holds sovereignty, and therefore the courts have federal jurisdiction.

Though the argument contains legitimacy, there is really no legal way for the court to intervene unless it capriciously disregards the lease, the treaties and the precedent of a former ruling.

Recently, some individuals, sympathetic to the plight of captured terrorists, have touted "prisoners of war have the right to a trial." Yes, they do. But another technicality remains. These people are not "prisoners of war;" they are "enemy combatants."

Under the Geneva Convention a "prisoner of war" is a member of a country's standing military. Now can anyone identify what standing military al-Qaida, Hamas or any of the other Islamic groups belong to? Answer: They have no affiliation. Hence the name, terrorist
"organization."

Other opponents assert that denying detainees the same treatment Americans enjoy is inhumane or that it goes against constitutional rights. Such an argument is not only unfounded but dangerous.

Here's the harsh truth. These detainees are not U.S. citizens, so they have no rights, including the right to a trial. If the court extends rights to non-citizens, especially terrorists, a Pandora's box effect could manifest allocating a new weapon to terrorists: the exploitation of the courts.

How much will it cost taxpayers for these degenerates to obtain proper council, opportunities for appeals, preparation time, access to witnesses, etc.? Individual cases could go on for months, perhaps even a year. More importantly, what happens if terrorists get off on trivial technicalities? How many precedents will be established in their favor?

Recall, these "enemy combatants" were not picked up at a shopping mall, the grocery store or a PTA meeting. U.S. soldiers captured them on the battlegrounds of Afghanistan where they definitely weren't helping our troops fight the Taliban. To the contrary, they desired to kill American soldiers, and they would love to see many Americans suffer. And now these individuals demand privileged rights? Too bad! Remember, they declared war on the United States several times in the 1990s and most recently on 9-11.

Indeed, these combatants must receive a trial, but not because they deserve one. These men should be afforded a trial only to illustrate that America doesn't imprison people arbitrarily; justice must be exercised.

Still, federal courts are not the correct venue for the trial. Neither is an international court. Americans died capturing these men, and Americans should judge them.

The appropriate measure is to try the detainees in a U.S. military court, outside U.S. sovereignty. According to an article published by the Harvard Journal of Law regarding the Cuban detainees, a military trial is "morally, politically and legally justified."

The Bush administration claims it will hold such trials, but has yet to establish a time period. This is unacceptable. Pressure must be placed on the president to specify a time period for military trials to transpire. If it's a year from now, fantastic. If it's three to five years, so be it. Just set the date. There is no rush, though, for truly the world does not miss these men and their debauchery.