I think the main source of conflict regarding the possible suspension of habeas corpus for, among others, Guantanamo detainees is the term "enemy combatants." I'm pretty sure the point of the habeas corpus is to prevent a government from indefinitely detaining a person at will. Since every person has the right to know their own legal standing, what you are charged with, etc., it would be difficult for the authorities to jail someone for reasons outside the scope of democratically created (we hope) laws. But hold on here, if habeas corpus says a prisoner has a right to know what crime the state claims they have committed, how does that apply to a POW? Enemy soldiers are, when captured, taken into custody by their captors. They are placed in facilities designed to house POWs, and their captivity is presumably in accordance with the standing law, the Geneva Conventions. But there's one thing that never happens to a POW. He is never charged with a crime! Wouldn't that make the concept of habeas corpus, in the case of a POW, irrelevant? This seems to be what Sen. Graham is getting at with his recent amendment. On November 10, the day of the vote, Graham had this to say:
I firmly believe that 9/11 was an act of war and not a crime. The detainees at GTMO are not American citizens facing criminal trial, rather, they are terrorists who have taken up arms against the United States.Regardless of how I may have wanted to vote on the plan, and that many detainees at GIMTO are in fact NOT terrorists notwithstanding, this strikes me as an eminently reasonable statement. Sen. Graham is correct. Enemy soldiers have not and should not have access to the U.S. criminal justice system for the simple reason that what they have done is not criminal. Capturing a enemy soldier and presenting someone with a warrant for their arrest are completely different operations.
There has never been a time in our military history where an enemy combatant or prisoner of war has been allowed access to federal court to bring lawsuits against the people they are fighting. Habeas corpus rights have never been given to an enemy combatant and the Senate today reaffirmed that principal.
Since no one is advocating for a full scale suspension of habeas corpus, and no one believes that POWs, by dint of their combat status, have broken any "laws," then what is the central issue here? It seems to me that the most important thing to be discussed is how the government identifies someone as an "enemy combatant," a wartime enemy, someone who has not broken laws per se, but has actively and with hostile intent opposed them in battle. The suspension of habeas corpus is almost incidental to the central question of who is empowered to make this identification. To the 42nd Tennessee at Manassas, it was a pretty safe bet that the guys wearing dark blue and carrying the flint-locks were the enemy. In Ypres in 1914, it was pretty clear who the combatants were. You looked across the mud to a guy wearing a funny looking hat and if he put his hands up, you sent him behind the lines. But the War On Terror is not fought on battlefields. They do not wear uniforms.
So how is one to determine who opposes you in battle in a war without battlefields? As a terrorist organization, al-Qaida fight mainly on a mental level. Where conventional armies battle to expand borders and territory, the terrorist army desires to expand fear and chaos. One need not be at any certain place, or doing any one certain thing, to accomplish this goal. And apparently, one need not have even meant it. The many-initialled Mark A. R. Kleiman points us to this enlightening article from last December describing a hearing in which government lawyers "asserted...the U.S. military can hold foreigners indefinitely as enemy combatants at Guantanamo Bay, Cuba, even if they aided terrorists unintentionally and never fought the United States." Sen. Graham's amendment provides the framework for making just that type of determination. And even if the amendment is meant to apply only to NON-CITIZEN COMBATANTS (Sen. Graham's own caps), that's pretty scary power to grant a government. I'm not sure if the process to identify a person as an "enemy combatant" has ever been codified before. After all, there's no guarantee that some well meaning Senator years from now tries to establish the steps by which the government strips citizenship itself. This is where Graham's straddles the line between trying to address a legitimate concern, wartime enemies' access to U.S. courts, and establishing a Kafka-esque world in which one's fate is at the mercy of the unassailable whim of a group of just three persons.
So what to do? Clearly there are some who believe themselves to be at war with us. Shouldn't they be, if captured, detained as POWs? Since there would be no country with which to sign a treaty at the end of this conflict, where would we return such a person? Is the solution to hold al-Qaida members indefinitely? The more I look at this issue, the more I'm convinced that the mistake that Graham and so many others make is to insist that we are indeed at War. To be sure, we are undeniably deeply embroiled in a deadly conflict that pits two worldview one against the other, but is it useful to call it a War? Where does that get us other than debating the benefits and dangers or military tribunals to determine the fate of unintentional "enemies?" I believe it is much more useful to think of the current terrorist situation as a law enforcement issue. Each country should prosecute terrorists who act within its borders according to its own laws. Last I checked, blowing up a bus is still a crime in most places in the world. At the very least, we'll know who really wants to cooperate with us. If a terrorist act is committed, then arrests and trials and convictions are to follow. This is something that the U.S. should absolutely insist upon. And what a perfect way to respond to terror and chaos, with law and democracy and order. But to Graham, this remains a War. Like he said, he "firmly believes" it. I don't think Sen. Graham is an evil man. I do think he is trying his best to respond to a tricky situation. But the truth is that his fundamental misunderstanding of the nature of this conflict may have severe consequences.