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Politics : Foreign Policy Discussion Thread -- Ignore unavailable to you. Want to Upgrade?

To: zonder who wrote (1928)	1/9/2003 5:10:07 AM
From: LindyBill	Respond to of 15987

Here is a review of the Court Decision today about how we are handling prisoners. WSJ.com Another Ashcroft Victory Yaser, that's my enemy. Thursday, January 9, 2003 12:01 a.m. If the 54 pages of yesterday's appeals-court decision supporting the Bush Administration's detention of an American-born al Qaeda fighter can be summed up in a phrase, it would be: The rest of us have rights too. To be precise, Americans have the right to be protected against enemy attack. J. Harvie Wilkinson, chief judge of the Fourth Circuit Court of Appeals, puts it more elegantly in the unanimous opinion he penned for the court, but that's the nub of his argument. "For the judicial branch to trespass upon the exercise of the warmaking powers," he writes, "would be an infringement of the right to self-determination and self-governance at a time when the care of the common defense is most critical. This right of the people is no less a right because it is possessed collectively." In an age when the notion of "rights" has somehow come to mean exclusively individual rights, the idea that we have collective rights that sometimes trump individual ones can be a tough notion to grasp. It's the issue at the heart of any discussion of civil liberties in wartime, and the current war on terror is no different. The case at hand concerns one Yaser Esam Hamdi, trained by al Qaeda and captured on the battlefield in Afghanistan with an AK-47 in his hands when his Taliban unit surrendered to the Americans. No one, including Hamdi, disputes these facts. Nor does anyone dispute that Hamdi is a U.S. citizen by virtue of having been born in Louisiana to Saudi parents, as the government later learned. Rather, the dispute is over whether the government can declare him an enemy combatant and hold him until hostilities end without trial and without access to a lawyer. The Fourth Circuit ruled yesterday that the government can. Hamdi is being held under "well-established laws and customs of war" and the fact that he is an American citizen does not affect the legality of his detention. The court was particularly scornful of the argument that it ought to be up to a judge to decide whether Hamdi is an honest-to-goodness enemy combatant. This "might require an excavation of facts burned under the rubble of war," writes Judge Wilkinson, who apparently is not eager to seat his court in Afghanistan. To inquire, for example, whether Hamdi actually fired his rifle "is to demand a clarity from battle that often is not there." In other words, get real. Hamdi isn't accused of stealing a car or breaking into a house. He was captured while taking up arms against fellow Americans. The Fourth Circuit specifically did not extend its ruling to enemy combatants captured on U.S. soil. It also specifically said that it was not "placing our imprimatur on a new day of executive detentions," notwithstanding overwrought alarums about John Ashcroft's intent to ransack the Constitution. Yesterday's ruling is the highest one to date in the war on terror and will surely be appealed to the Supreme Court. But the record so far is that in case after case the courts are finding that the Bush Administration is striking the correct Constitutional balance between liberty and security. opinionjournal.com