LexisNexis Global

As a candidate, President Obama chastised the Bush Administration for alleged human rights abuses of enemy combatants held as detainees outside of the United States. Yet recent decisions by the Obama Administration imply that this criticism was based on political opportunism rather than a coherent belief that due process should be afforded to detainees.

During his first month in office, President Obama requested the trials of enemy combatants held at Guantanamo Bay, Cuba, be postponed so that the Justice Department could review each case. News reports suggest that these combatants may be relocated to one or more military bases within the United States and afforded constitutional due process rights rather than tried by military tribunals without such rights. In the alternative, some detainees may be released to other countries.

However, the Justice Department also contends that the same type of enemy combatants held at Bagram Airfield in Afghanistan have no constitutional rights and lack standing to challenge their detention within the U.S. court system. Although these detainees might be able to maintain a civil action under the Alien Tort Claims Act, 28 U.S.C.S. § 1350, their treatment is clearly inconsistent with the manner in which Gitmo detainees are being handled.

Some might argue that the Bagram Airfield detainees are being provided more due process than they would receive in custody of the Afghanistan government. Yet that ignores the fact that some Gitmo detainees were apprehended in Afghanistan as enemy combatants. The only difference between these groups of detainees are the locations of the military bases where they are being held.

What about the extraterritorial application of U.S. Constitutional rights to detainees? If the United States were to insist upon applying constitutional due process to enemy combatants detained abroad, other nations might reciprocate by demanding extraterritorial application of their laws within the United States. To avoid this issue, the Obama Administration would likely have to bring the detainees to the United States before providing constitutional protections to the detainees.

However, no administration should be able to have it both ways when it comes to human rights and the rule of law. Hypocrisy is not a viable long –term policy solution under the US Constitution.   The Bush Administration began this legal conundrum for the United States by its unclear legal reasoning that has tried to create a new category beside the traditional ones of “prisoner of war” and ordinary “criminal suspect”. Is a person fighting against an established order in a war of terror to be treated as a soldier indeed or as a criminal under domestic law even though that jurisdiction may not have traditional territorial jurisdiction over their persons? The hasty attempt to create the third category of “enemy combatant” mid-way between these two established categories has resulted in the United States, one of the leading champions of the rule of law in our world, appearing to be hypocritical on the highest level. President Obama has inherited this conundrum and now faces the difficult legal and political tasks of sorting out this half-baked category by wading through the mire of extending constitutional rights and due process for mostly alien nationals (based on physical jurisdiction in US custody), which mire is submerged under a slurry of military law and order – that has resulted from the declared “War on Terror” against non-sovereign amorphous groups of opponents.  To wrap oneself in the mantle of human rights yet turn a blind eye to the same issues depending upon whether one’s actions will be politically popular is a dilemma that the Bush Administration does not appear to have handled well at all and has now bequeathed its legacy and its detainees to the Obama Administration to sort out. 

Either human rights are important or they are not.

Either constitutional due process applies to “enemy combatants”, whoever they are, or it does not.

It is time for the United States to clarify its views on all these issues and act uniformly. In doing so, it must consider the reaction of other nations to any implied extension of US laws to their sovereign territories, as well as the inevitable reciprocal result and the corresponding willingness of US citizens to find themselves considered subject to foreign laws in the heart of home town and downtown America. The Rule of Law, not Might, makes Right.

Update: We are pleased to be able to point out that the day after this article appeared the Obama Administration dropped the use of the term "enemy combatant."  Please click on the following link for details.

http://www.usdoj.gov/opa/pr/2009/March/09-ag-232.html