Never Bring a Lawyer To a Gunfight

Never Bring a Lawyer To a Gunfight

by Mark Luedtke

On Oct. 2^nd, 1780 George Washington executed Benedict Arnold's contact, British Major John Andre. Andre had asked Washington to shoot him, as befitted a captured officer, but because Andre had been captured in civilian clothes, Washington treated him exactly the same as all other captured spies – he was ignobly hanged. Dealing with captured spies and soldiers was solely the responsibility of the commander-in-chief, and the Founding Fathers subsequently codified that tradition into the Constitution.

That tradition evolved because it was crucial for victory. The Founding Fathers understood that in order for Americans to enjoy liberty, we have to win wars against those who would take it from us, and that allowing Congress or the Court to interfere with fighting a war would lead to defeat and the end of the US in short order. That's why the Constitution is crystal clear about how America fights wars – all power to wage war is concentrated in the commander-in-chief. That includes dealing with prisoners of war.

The Constitution grants Congress several external powers associated with war. Only Congress can declare war, and by extension end wars. Congress appropriates funds to raise and equip the military and to wage war. Congress and the President share the responsibility for making rules regarding prisoners of war, as was done for the prisoners in Guantanamo. Congress can remove the commander-in-chief through impeachment. Congress has no other powers associated with war. The Court has no powers whatsoever associated with war. That unambiguous separation of powers had been respected since the Constitution took effect in 1789.

Until today's Supreme Court.

Like every good commander-in-chief, Washington understood the critical difference between spies and soldiers and refused to give a spy any privilege, even a firing squad, reserved for a soldier. Privilege is the operative word because enemy combatants forfeit their rights when they take up arms against us. The goal is to remove them from battle by killing, wounding or imprisoning them indefinitely so we can win the war, not to give them lawyers and prosecute them as criminals. Today, the Geneva Conventions provide the framework for dealing with legal combatants, privileges that each signatory agrees to provide to lawful combatants of other signatories captured during a war, including humane treatment but not access to courts.

But because of the extreme threat, think 9/11, from enemy combatants posing as civilians instead of wearing a uniform, unlawful combatants - spies and terrorists - don't receive those privileges. Traditionally, they are summarily executed.

On Sept. 18, 2001, Congress declared war on “those responsible for the recent attacks launched on the United States” and “to deter and prevent acts of international terrorism against the United States," specifically invoking the commander-in-chief's war powers. The War on Terror is a lawful war, and the captured terrorists are unlawful combatants. The Constitution grants the commander-in-chief sole power to summarily execute those unlawful combatants, to hold them in detention until the end of the war, or to try them in a military tribunal and then execute them – whatever he prefers. The commander-in-chief can set up any rules for tribunals he likes, and neither Congress nor the Court has any power to interfere.

Some people are scared to give one man that much power, but if Congress or the Courts had micromanaged our wars, we wouldn't be here today. Certainly some presidents, most notably FDR, temporarily abused that power. That's far better than losing the war.

But if we as a nation want to restrict the commander-in-chief's power to wage war, give every prisoner of war a day in civilian court, transform soldiers into evidence technicians during fire fights, divert our resources from battle, and make it harder to win, there's a legal way to do it – amend the Constitution. We should obey the law one way or the other.

Instead, five justices on the Supreme Court ignored the plain language of the Constitution, all US law, and centuries of military tradition, and granted habeas corpus rights to the terrorists detained in Guantanamo. They also tossed out the precedent that US law ends at the US border, proclaiming themselves a world court. Now the fastest way for any foreigner to obtain constitutional protections is to attack a US soldier. If that isn't scary enough, Guantanamo provides better quality of life than hundreds of millions of potential terrorists endure.

Fighting the War on Terror has kept the US safe since 9/11, and President Bush has shown restraint in the application of his war powers compared to past commanders-in-chief. The number of detainees held in Guantanamo are tiny by historical standards, and implementing tribunals to publicize their war crimes before they are executed is smart policy to remind Americans of the nature of the enemy during a war that's hard for the public to remain engaged in. In 20/20 hindsight, swift, summary execution looks smarter.

Barack Obama comparing this decision to the Nuremberg trials reveals his stunning ignorance of history. The Nuremberg trials were carried out by military tribunal as President Bush plans, not a civilian court. The tribunal's restricted process was about publicizing the war crimes of the Nazis before their execution, not proving guilt or innocence. The problem with Bush's tribunals is they're more like the criminal justice system than Nuremberg.

Terrorists don't pose an existential threat to the US, but sometime in the future, we will be faced with a war for our survival. If President Bush caves to this decision instead of upholding the separation of powers specified by the Constitution, it will be much harder to survive that future war.