Andrew Hagen

Two different US Courts of Appeal issued rulings yesterday that have impact on the War on Terrorism. One said that the US government cannot hold Abdullah Al-Muhajir (frequently called by his former name “Jose Padilla”), a US citizen, without trial despite his enemy combatant status. The other ruled that the Guantanamo detainees must be given trials in US courts. (*)

These rulings are unfortunate, but should not have been unexpected.

The Bush Administration has claimed the right to create its own system of justice by executive order. While that may indeed be the better interpretation of the Constitution than that offered by the majorities yesterday, it is politically inadvisable. It unnecessarily pushes the legal envelope. It would have been far better if President Bush had introduced legislation two years ago to create some kind of basic judicial process for these enemy combatants.

For example, an executive branch court could be created. Every detainee labeled as an enemy combatant would be given a hearing at a prudent time where an administrative law judge could determine his status. The proceedings would be limited for reasons of national security. Evidence relevant to a detainee’s status would be admissible. If the burden of proof is met, the government could hold the prisoner under the appropriate international rules. In some cases, that might mean for the duration of the war.

That is not what Bush did. Now the Administration is faced with the nightmarish dilemma between letting enemy fighters go free and turning them over to the US criminal justice system. They are not criminals. They are enemies. In the courts they would make a mockery of the process and engage in relentless politically-oriented fishing expeditions, all calculated to play to the hands of the self-hating American media. Zacharias Moussaoui’s courtroom shenanigans are nothing compared to what could happen.

Most likely the rulings will be appealed to the Supreme Court. Before filing the paperwork and crossing his fingers for a favorable decision, President Bush should first introduce legislation to give some Congressional oversight to the handling of these people. That might negate the rulings. Better to preserve executive authority in this way than gamble it in an uncertain Supreme Court case.

Update: 20 December 2003. This is commented upon at Walloworld. (†)

This entry was posted on Friday, December 19th, 2003 at 07:11 and is filed under USA. You can follow any responses to this entry through the RSS 2.0 feed. Both comments and pings are currently closed.