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During wartime, normal criminal functions in Article III federal courts operate against the backdrop of an uneasy confluence with the executive branch obligation to defend the American people. Decisions to go to war and the prosecution of those wars are grave national matters that have been entrusted to the political branches of our government. Articles I and II of the Constitution explicitly empower the president and Congress in such matters. Federal courts have affirmed that the executive is constitutionally free to conduct conflict in compliance with international law without unnecessary judicial constraints. For example, in 1913, the court in Ex Parte Toscano denied habeas relief to 208 Mexican soldiers interned by American military forces at Fort Rosecrans, Calif. (after they fled across the border during the Mexican civil war), opining that the “President has full authority, and it was and is his duty” to implement the mandates of the law of war. Having said that, the decision by the U.S. Supreme Court to grant certiorari in the case of the detainees at Guantanamo Bay is, in some respects, a good one. The detention of the foreign nationals at the naval base in Cuba has been a pebble in the shoe of the Bush administration as it has waged the war against terrorism. Who can forget the Sept. 12, 2001, front page of Le Monde declaring “We are all Americans”? In contrast, the ambiguity surrounding the Guantanamo detainees has been a lightening rod for detractors of the president, and by many accounts contributed to an erosion of the international unanimity that we all felt so strongly in the wake of Sept. 11, 2001. The continued detention of the Guantanamo detainees has spawned debate around the world regarding the proper scope of their legal rights, and some have argued that the United States has conveniently disregarded applicable legal protections. It seems so un-American to confine individuals without giving them a day in court. Human rights norms echo a presumption that governments cannot incarcerate people without due process of law. On the other hand, President Bush has an unquestioned constitutional obligation to wage war against those who would destroy American lives and property. The law of war permits governments to detain enemy combatants without trial, whether or not they had a lawful right to participate in the hostilities, until the end of the conflict. That legal regime would be an irrelevant anachronism if it required the U.S. military to allow enemies already in their custody another chance to go back to the business of waging war against us. The high court’s blessing The Supreme Court will consider whether the executive has the right to detain enemy aliens under our constitutional structure based on the norms for waging war, but they will do so against the backdrop of a mature human rights regime developed since the end of World War II. If the court decides, as other federal courts have, that there is no habeas relief for the detainees, it will add legitimacy to the Bush administration’s detention of the prisoners at Guantanamo Bay. Those critics who never miss an opportunity to criticize the president or the attorney general might be silenced. As a matter of law and public policy, we believe that the Supreme Court will ultimately decide that the detainees are not entitled to habeas relief. In legal terms, the decision in Johnson v. Eisentrager should be dispositive; it provides ample precedent and reasoning to support the denial of habeas relief. On facts nearly analogous to the present case, the Supreme Court squarely held that the Constitution does not mandate habeas relief for enemy aliens detained outside the United States under the authority of the law of war for offenses committed outside the United States. Furthermore, human rights law developed since Johnson does not supercede the executive power to implement the law of war when dealing with non-U.S. nationals outside the United States. We are a nation at war, and sound policy and common sense dictate the continued detention of the Guantanamo detainees-some of whom have reportedly sworn to kill Americans even before they are released. The law of war expressly permits such detention until the end of hostilities, and Article III trials would impede our war effort and bring aid and comfort to the enemy. Witnesses, including military officials, would have to return to the United States bringing evidence from overseas. Such proceedings would undermine the efforts of field commanders. Military efforts abroad would be turned into legal defenses at home. Recently, we had the opportunity to observe the arguments at the 2d U.S. Circuit Court of Appeals in Padilla v Rumsfeld. Rarely do we have cases in our courts that have such monumental implications for society as a whole. These cases are not easy. They involve fundamental constitutional separation-of-powers issues that go to the fabric of our republic. Blind adherence to legal principle cannot or should not be the blade that destroys our national fabric by permitting terrorists to use our legal system as another weapon in their arsenal. Moreover, these cases are not static. Almost certainly, more prisoners will be released from U.S. custody at the detainment camp in Guantanamo Bay without judicial action. Michael A. Newton and David A. Wallace are faculty members at the United States Military Academy at West Point. The views expressed here are solely their own.

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