Jewish World Review June 30, 2004 /11 Tamuz, 5764

Robert Robb

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High Court gave administration limits | Overreaching by the Bush administration invited a predictable, yet still regrettable and dangerous, judicial incursion in the fight against terrorism.

On Monday, the U.S. Supreme Court decided that those who are declared enemy combatants have the right to have their cases reviewed by an American court. This right extends not just to citizens, but foreigners as well. And even to those captured on a field of battle, not just those captured in the United States.

The Bush administration sought to put a positive spin on the two decisions articulating these rights, pointing out that the court did uphold the ability to declare individuals enemy combatants and hold them for the duration of the conflict without other charges, a murky end point given the nature of the fight against terrorism. What is subject to review is only the issue of whether they are, indeed, enemy combatants.

Fairly considered, however, this judicial incursion will greatly debilitate efforts to protect the country. The American courts, as currently constituted, are an inappropriate forum to provide this oversight.

In Hamdi, the court considered the case of a man born in the United States but raised in Saudi Arabia and captured in Afghanistan. The controlling plurality decision speculates that the review it says is constitutionally required because he is a citizen could involve more relaxed standards than the customary habeas corpus evaluation.

Hearsay might be appropriate to consider. The government could be given a rebuttable presumption. It might be acceptable if done by a military, rather than a civilian, court.

In fact, the plurality decision suggests that, given the national security considerations, a more relaxed standard of review is actually required, rejecting the far-reaching evaluation the trial court judge wanted to conduct.

But the splintered decision gives trial courts no practical guidance about what such a relaxed standard of review should consist of. Trial courts will have to make it up as they go, subject to additional appeals and refinements.

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In the second case, the court held that foreigners detained at Guantanamo Bay had a right to review by an American court because the United States had complete jurisdiction and control there.

So, the country will now enter into uncharted litigation about what are the elements of proof necessary to establish that someone is an enemy combatant, what standard of review will be applied to the government's claim, and what degree of jurisdiction and control triggers American court review of foreigners being held outside the United States.

Not exactly the clear rules needed in the fight against terrorism. There has been an obvious need for new rules and forums to balance liberty and security interests in the fight against terrorism ever since the 9/11 attacks.

Congress has the authority to act. The Constitution gives it the right to suspend habeas corpus in cases of rebellion or invasion. It certainly could establish a more circumscribed review for terrorism cases.

The extension of habeas to foreigners held outside of the country was based upon an interpretation of the habeas statute, not the Constitution. So, Congress can clearly eliminate or limit it.

There have been various proposals for new rules and new forums, such as establishing a special terrorism court, with broader evidentiary rules and the ability to consider information in secret; or a special terrorist public defenders office within the military justice system, with security clearance and without all the obligations of an advocate.

But the Bush administration took the maximalist position. It had the right to designate people, citizens and noncitizens, as enemy combatants and hold them indefinitely. If there was to be any court review, it could only be on whether there was any evidence for the government's claim, not to exercise independent judgment.

With respect to American citizens, that's unconstitutional. With respect to foreigners, it violates American values. In the United States, detention powers are not to be unchecked and unreviewed.

The best time for Congress to establish new rules and forums would have been in the aftermath of 9/11 and in the context of the war in Afghanistan, when the country was united.

Now, such a discussion would take place in the context of the divisive war in Iraq, the Abu Ghraib prison scandals, and general interrogation techniques that violate Geneva Convention norms, even if they don't legally apply, and American sensibilities.

Reaching a consensus will now be very difficult, but the effort must be made.

One of the biggest problems with the Bush administration is that it lacks a proper sense of limits. The court has imposed inappropriate and dangerous ones.

Congress now needs to craft appropriate checks that protect liberty and conform with American values without tying the government up in litigation when it is trying to keep terrorists from killing us.

JWR contributor Robert Robb is a columnist for The Arizona Republic. Comment by clicking here.


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