The Legacy of Justice Kennedy

The Enemy Detainee Mess
July 3, 2008; Page A10
Supreme Court Justice Anthony Kennedy has departed for summer vacation, but what a mess he's left behind, especially for the U.S. military. His 5-4 decision requiring habeas corpus review for foreign terrorists is already creating confusion and problems about how to handle these dangerous enemies.

The Bush Administration is currently debating how to respond to Mr. Kennedy's war-fighting ukase in Boumediene v. Bush, with President Bush set to make a decision soon. Some in the Administration want Mr. Bush to abolish not merely Guantanamo but even military commissions, the special tribunals set up to try Khalid Sheikh Mohammed and others for their war crimes. This would compound the mistake of Boumediene, and do away with what has long been a useful tool of military justice.

It is already clear to nearly everyone in the Administration that it will be impossible for the U.S. to hold most detainees from now on. That's true not merely at Gitmo, but even in Afghanistan, Iraq and other foreign battlefields. Earlier this month, lawyers filed a lawsuit on behalf of a detainee held at the U.S. military prison at Bagram air base near Kabul. It's only a matter of time before suits are filed demanding habeas writs for anyone captured and held by GIs for any length of time anywhere in the world.

Regrettably, the Administration will now have to let most enemy fighters go. The burden of gathering enough evidence to meet the habeas standards of U.S. federal courts is simply too great under battlefield conditions – and in any case is far too dangerous. This week a panel of the D.C. Circuit Court of Appeals rejected the enemy combatant status of a Gitmo detainee captured after training in al Qaeda camps in Afghanistan. The press has reported this as if the Bush Administration had invented a case against an innocent shepherd. But the truth is that in the fog of battle it is impossible to gather evidence the way a Manhattan cop can. There's no "CSI: Kandahar."

While GIs gathered shell casings or interviewed witnesses to meet a U.S. judge's habeas standard, they would leave themselves open to counterattack or sniper fire. No commander – and no Commander in Chief – can ask his troops to put themselves in danger to satisfy Justice Kennedy's legal afflatus. This is what Justice Antonin Scalia meant when he wrote that Americans will die as a result of Boumediene.

Justice Kennedy won't want to hear this, but this means that some enemy combatants will be shot on the battlefield rather than captured. Most who are captured will be interrogated for a brief time and released. Some will be set free entirely, while others will be handed over to the tender mercies of our allies on the ground in Iraq or Afghanistan.

The U.S. will still require some kind of detention for the worst combatants – such as KSM, and others we will want to put on trial. But if Gitmo is no longer a prison, some U.S. domestic prison will have to house these men while they await a habeas hearing and trial. If a habeas court finds the evidence against them unpersuasive, they can then be held only for six months under immigration law before they are deported. If no country will accept them, the possibility exists that they will be released here. It will be fascinating to watch the Congressfolk who cheered Boumediene now saying "not in my backyard." What does Pat Leahy think about a Vermont destination?

That still leaves the issue of trials for those who are found to be enemy combatants. The State Department is arguing that Mr. Bush should now cashier the entire post-9/11 system, including Gitmo and military commissions. The argument is that the U.S. will get no diplomatic benefit from refusing to hold future detainees as long as the commissions continue. In any case, State's legal sages say, the Supreme Court will eventually declare military commissions unconstitutional too.

But we doubt even Justice Kennedy would disallow commissions, which have existed throughout American history. After the Civil War, they were even used against the KKK's attempts to defeat Reconstruction of the South. After six long years, about 20 enemy combatants (including KSM) are now set for the tribunals, and multiple trials are under way. If Mr. Bush shuts down the commissions at this late date, the military justice process would have to start over.

It would insult the 9/11 families if justice for KSM and the others who planned those attacks is delayed once again. Assuming they are convicted, they will have the right of appeal. But would five Supreme Court Justices really set free the men who plotted the murders of 3,000 Americans? As for diplomacy, those who dislike America won't bother to distinguish between military commissions and courts martial. They'll find any military trials unfair.

The killers of 9/11 need to be put on trial, and soon. Americans need to hear them revel in their jihad, boasting that they would kill again if they get the chance. Justice Kennedy needs to hear it too.