Jewish World Review July 7, 2004 / 18 Tamuz 5764

Paul Greenberg

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The High Court's non-decision | Having given a number of prisoners detained in the War on Terror access to the country's judicial system, the Supreme Court of the United States solemnly ruled last week that such prisoners should have access to the country's judicial system.

Is this a decision or a tautology?

This much is clear: The Supreme Court rejected the executive branch's blanket claim to hold combatants, or at least anyone it deems a combatant, for the duration of this war-that is, approximately forever.

After all, as Associate Justice Antonin Scalia pointed out, the writ of habeas corpus has not been suspended-as it was during the Civil War. And even then, a number of lawyers, not to mention whole armed divisions, thought Mr. Lincoln was doing entirely too much to save the Union.

So will every GI sent into battle now have to be accompanied by a lawyer qualified to represent the enemy as soon as said enemy is shot, captured or otherwise hindered? Let's hope that's not what this decision says. But it isn't easy to tell.

Yes, the Hon. Sandra Day O'Connor has written another one of her wispy decisions for the majority-or maybe just plurality-that doesn't decide very much. To win agreement, she tends to cloud over any differences in legal fog. Who says there's no place for mysticism in the law of the land?

The canyon-sized gaps in her opinions are filled in with high-sounding platitudes. For example: "History and common sense teach us that an unchecked system of detention carries the potential to become a means for oppression and abuse of others who do not present that sort of threat." (Especially when History can't think of anything to teach except crashing banalities.)

Does Mrs. Justice O'Connor want some court somewhere to determine that an enemy combatant is really an enemy combatant? That shouldn't be too difficult. But one suspects she wants much more. Just how much more isn't clear. Which is why justices take refuge in the cloudbanks of law.

Is each detainee held in the War on Terror-which now encompasses Afghanistan, Iraq and other points unforeseeable-a plaintiff until some court somewhere declares him an enemy combatant? Just how and when and by whom is his legal status determined?

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The Supreme Court doesn't say. Maybe we should be grateful that it still allows the armed forces of the United States to take prisoners-a practice that, when you think about it, severely limits their liberty, pursuit of happiness, and other rights appertaining thereto.

Once upon a clearer time, prisoners captured on the battlefield could be held for the duration of the war, but what's the duration of this new world war in which the World Trade Center became a battlefield?

The court doesn't say. Surely it doesn't intend simply to loose the hundreds of prisoners now being held at Gitmo on a vulnerable world. At least, let's hope it doesn't.

The Hon. Antonin Scalia, in one of his standard stinging rebukes to those who would replace the law with vague truisms, raised the specter of reducing prisoner-of-war camps into only holding rooms for the criminal courts, with the 600 prisoners at Guantanamo being just the first in a long, long line:

"From this point forward, federal courts will entertain petitions from these prisoners, and others like them around the world, challenging actions and events far away, and forcing the courts to oversee one aspect of the executive's conduct of a foreign war."

Note the long-running, open-ended circus of a trial now being afforded Zacarias Moussaoui-who was either the designated 20th bomber on September 11th or engaged in an entirely different barbarity. Could this spectacle be merely the precursor of farces galore?

Let's hope it isn't. One hint of wisdom to emerge from the murk of the court's decision is Justice O'Connor's concession that "there remains the possibility that the standards we have articulated could be met by an appropriately authorized and properly constituted military tribunal."

The government has set up military tribunals for such cases but has studiously neglected to use them. Only now, almost three years after September 11th, are the first military trials getting under way.

Military tribunals offer one way out of all this confusion. The administration should seize it. If it had used military courts to try such these cases in the first place, they might never have had to be non-decided by this Supreme Court.

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JWR contributor Paul Greenberg, editorial page editor of the Arkansas Democrat-Gazette, has won the Pulitzer Prize for editorial writing. Send your comments by clicking here.

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