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No meddling in military decisions
By GEORGE M. KRAW

George Kraw The capture and detention of enemy combatants is a military matter. United States courts should no more interfere in decisions about battlefield captives held overseas than they should decide lawsuits challenging the choice of field commanders, the timing of campaigns, or whether to use a B-52 bomber or Black-hawk helicopter against a specific target. Our nation's security demands that those charged with conducting the war against terrorism abroad not be subject to second-guessing by the courts at home.

A habeas corpus petition filed in the District of Columbia seeks to override the military's decision regarding captured Taliban and force the release of Guantanamo detainees Shafiq Rasul, Asif Iqbal and David Hicks. Iqbal and Rasul are citizens of the United Kingdom and Hicks of Australia. All three were captured in Afghanistan while serving as volunteers against the Northern Alliance and U.S. forces. Their petition claims that none of them were involved in combat against the United States. However, they all were serving in the armed forces of a government that was. The Guantanamo lawsuit tries to make the petitioners into ordinary criminal defendants and the United States military a police force simply holding pretrial prisoners. Forcing the release of Guantanamo detainees would be an extraordinary and dangerous expansion of judicial power in wartime. It would also be contrary to controlling Supreme Court precedent in Johnson v. Eisentrager, 339 U.S. 763, 70 S. Ct. 936 (1950).

Johnson prohibits the petitioners from invoking federal judicial authority because they all were captured in Afghanistan and are now being held outside of the United States. Johnson involved 21 German nationals who were arrested by the United States Army and charged with violating the rules of war by continuing to engage in military activity in Japan after Germany surrendered. They were tried and convicted by a United States military commission sitting in China with the permission of the Chinese government. Then they were repatriated to Germany to serve their sentences in a prison that was under the command of a United States officer.

While incarcerated, the Johnson petitioners filed a habeas corpus petition that claimed violations of rights under the United States Constitution, federal law, and the provisions of the Geneva Convention for prisoners of war.

In ruling against the petitioners, Justice Robert Jackson's majority opinion found "the ultimate question" to be the "jurisdiction of civil courts of the United States vis-a-vis military authorities in dealing with enemy aliens overseas." Id. at 765.

His opinion went on to state that: "It would be difficult to devise more effective fettering of a field commander than to allow the very enemies he is ordered to reduce to submission to call him to account in his own civil courts and divert his efforts and attention from the military offensive abroad to the legal defensive at home." Id. at 779

Citing Johnson as controlling law, a federal district court in Los Angeles this February dismissed a habeas corpus proceeding brought on behalf of all Guantanamo detainees.

But there are also important policy reasons for denying such petitions. Hostilities have not yet ceased in Afghanistan. United States forces are deployed in other countries threatened by foreign volunteers fighting for international terrorist organizations. If the Guantanamo detainees are released, there is no way to ensure that they will not find their way back into combat in some new venue.

Federal courts have long recognized that disputes involving the president's role as commander-in-chief of the United States military are nonjusticiable under the political question doctrine. The habeas corpus petition brought on behalf of the Guantanamo detainees challenges the authority and discretion of the president to use the United States military in defense of the United States. The political question doctrine is designed to prevent judicial review of precisely such decisions as how to conduct a military campaign.

As all major conflicts do, the war against terrorism will eventually lead to changed rules of war. The ultimate categorization of captives from rogue nations and terrorist groups will require new institutions and procedures, just as the disposition of Nazi and Japanese war criminals required new institutions after World War II.

In the meantime, the courts should approach challenges to military actions by first recognizing that the United States Armed Forces are charged with protecting the nation against a determined foe committed to destroying our government, our Constitution, and our way of life.

  • George M. Kraw is a lawyer in San Jose.
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