Terrorist rights lawfare goes to Afghanistan

Stephenie Hessler:

As the debate over whether to send more American troops to Afghanistan intensifies, our war efforts could be hindered by an unlikely source: the U.S. judicial branch. Federal judges are considering whether foreign al-Qaeda and Taliban supporters captured by the U.S. military and held at Bagram airbase in Afghanistan can sue the U.S. government to be released from custody. On October 30, Fadi al Maqaleh, a Yemeni citizen currently detained in Afghanistan, argued in a brief to the D.C. circuit court that he has the right under our Constitution to challenge his confinement in U.S. federal court. Despite his campaign promises to abandon the detention policies of his predecessor, President Obama has adopted the same position as President Bush and is trying to block al Maqaleh’s law suit from proceeding. On Monday, the Obama administration filed a brief urging the D.C. circuit court to dismiss the case.

Permitting enemy militants to sue their U.S. captors would overhaul the military’s entire detention system and severely disrupt the U.S. mission in Afghanistan. But one judge has already ruled in favor of al Maqaleh. In a stunning decision this spring, Judge John D. Bates of the D.C. district court declared that al Maqaleh has a constitutional right to bring a claim challenging his custody. The Obama administration immediately appealed to the D.C. circuit court, where the case is currently pending.

Maqaleh v. Gates is a watershed case because al Maqaleh is one of approximately 600 enemy detainees being held at Bagram. Most are Afghans who were captured on the battlefield and who might rejoin the fight if released. As an essential part of wartime strategy, capturing and detaining enemy fighters has long been considered indispensible for weakening the other side’s ground forces. (For example, the United States detained more than 3 million German soldiers in World War II.) A ruling for al Maqaleh would mean that — for the first time in our history — foreign-enemy litigants in an active war zone could flood our courts asking judges to order the U.S. military to release them from custody.

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This is too nutty to even contemplate. It is beyond irrational to give enemy detainees constitutional rights. Most have already violated the rules of war under the Geneva Conventions. But, for liberals, the enemy is free to violate those conventions with impunity while the US is bound to give these guys rights they are not entitled too under any reasonable interpretation of the Constitution and the law.