It's approaching six years since the 9/11 attacks but, as two recent sets of judicial rulings illustrate, America is still at odds with itself over its war on terrorism -- and how to treat captives.
Is the globe America's battlefield? Is al Qaeda ideology and the war on terrorism like Soviet communism and the Cold War, meaning an American president can someday declare victory?
Or, in the view of U.S. law, is it more like the drug war -- with no end in sight -- picking off alleged criminals one by one?
And, most critically, there is still no consensus about whether to treat U.S.-held captives as alleged criminals afforded a presumption of innocence or as enemy combatants allowed no recourse in federal court.
In other words, when does the Bush administration get to treat those it brands as ''terrorists'' as criminals? When are they warriors?
Legal scholars say the federal judiciary has traditionally deferred to presidential authority in time of war. And that has more or less been the case since the Sept. 11 attacks. But the latest rulings suggest that the pendulum may be swinging back to the courts.
Last week, a conservative federal appeals court in Richmond, Va., decided 2-1 that the clock ran out on the president's designation of Ali al Marri, 42, as an enemy combatant. He has been in a military brig in South Carolina since June 2003.
Marri and his family arrived in the United States Sept. 10, 2001, ostensibly to attend graduate school in Peoria, Ill. But the Bush administration claims he is an al Qaeda ''sleeper agent'' who met Osama bin Laden and 9/11 mastermind Khalid Sheik Mohammed.
'Put simply, the Constitution does not allow the President to order the military to seize civilians residing in the United States and detain them indefinitely without criminal process, and this is so even if he calls them `enemy combatants,' '' wrote Judge Diana Gribbon Motz in a 77-page decision.
The Justice Department said it would appeal to the full U.S. Court of Appeals for the Fourth Circuit, one of the most conservative circuits in the country. Unless the U.S. transfers him to a civilian proceeding, releases him or deports him, one side or the other is likely to appeal to the U.S. Supreme Court.
Former Bush administration deputy assistant attorney general John Yoo, an architect of the policy, said the matter of how to handle detainees designated enemy combatants should have been already settled.
Twice the Supreme Court sought to give certain rights to detainees held at Guantánamo Bay, Cuba as a result of the war on terror. And twice, Yoo said, Congress and President Bush overruled them, with the Detainee Treatment Act and the Military Commissions Act, which stripped non-U.S. citizens designated by Bush as enemy combatants of the right to challenge their detention in federal court through habeas corpus.
He called the appellate court decision an ''outlier'' by judges who don't agree that America is engaged in a global war on terrorism. He expects the full Fourth Circuit to overrule them.
The judiciary defers to the executive and Congress in a time of war, he said, and as he sees it, America is at war with al Qaeda, not battling a criminal enterprise.
''It's completely bizarre. Under this opinion, none of the 9/11 hijackers were enemy combatants,'' Yoo said by phone from Berkeley Law School in California, where he is a professor.
Suppose the passengers aboard the fourth airliner that crashed in a Pennsylvania field in 2001 had wrestled control of the plane from the hijackers and landed it safely? he asked.
``According to this opinion, the hijackers on that plane could not be enemy combatants. They would have to be given lawyers, Miranda warnings and a jury trial.''
Precisely, say opponents of enemy combatant policy who argue the executive branch got it wrong by assuming the power to have the military detain -- indefinitely, without charge or trial. In the instance of Marri, in fact, without any review.
A Defense Department spokesman said as long as the court appeal was under way, the Pentagon would not be staging a so-called Combatant Status Review Tribunal in which U.S. military officers, not judges, simulate a battlefield status hearing to determine if there is reason to hold him.
That very process was at the heart of a dispute that saw not one, but two, U.S. military judges dismiss charges against a Canadian and Yemeni at Guantánamo.
Neither Navy Capt. Keith Allred nor Army Col. Peter Brownback III, the judges, dispute that they are at war. In fact, their roles presiding at the military commissions are conditioned on the assumption. But they said the Pentagon's own processes had -- so far -- failed to distinguish between captives who were legitimately on the battlefield, and therefore ''lawful enemy combatants,'' and those who either fought unfairly or didn't have the right to be there -- ``unlawful enemy combatants.''
The overarching issue reflects an evolving process across the years on how to categorize and hold captives, and a continuing debate on whether they are to be treated as criminals or combatants, said constitutional law scholar Douglas Kmiec of Pepperdine University.
LAW TAKING SHAPE
Before 9/11, he said, there was no law that would govern a war on terrorism that ranged across the globe. ''It was largely undeveloped and unstructured before we confronted it, and it's only beginning to take shape now,'' he said.
That's why it's no coincidence, he said, that the Supreme Court this year left to lower courts to grapple with the latest challenges to the war tribunals and habeas corpus stripping provisions.
Tradition and precedent has allowed the president vast powers in times of war.
During the Civil War, Abraham Lincoln suspended habeas corpus and used military tribunals -- only drawing a Supreme Court rebuke in 1866, once the war was over. During World War II, the justices upheld Franklin Roosevelt's executive order authorizing the internment of tens of thousands of Japanese and Japanese Americans -- and it took until 1988 for Congress and a president, Ronald Reagan, to apologize. [Link]
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