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In Time of War, Some Detainees Must Be Held Indefinitely

Letters to the editor
The Wall Street Journal
October 16, 2006

Richard A. Epstein's Oct. 7 Rule of Law column "Produce the Body" (a legal justification of habeas corpus for Guantanamo detainees) reminded me of "Loose lips sink ships." Prof. Epstein failed to address the issues of: 1) The enemy's choices; and, 2) Protecting our national security. First, a case is made that only those in uniform can be held indefinitely, while the non-uniformed must have immediate legal rights.

Is it always true that a person in uniform is an enemy soldier or is it just a convenient legal loophole? What rights should an enemy civilian have who dons a uniform to avoid freezing and is "captured"? Do we say, "We hold that person indefinitely, because that's the law"? Mistakes can be made whether or not an enemy is in uniform. Logically, shouldn't all enemy combatants refuse uniforms and hope that their habeas corpus rights will quickly set them free? Second, how does our government protect the lives of intelligence operatives and the secrecy of our intelligence processes if that evidence must be presented in court?

Defense attorneys have illegally passed secret information on to their clients. Further, if due to an arcane legal loophole, a guilty detainee is released, what happens next to those state secrets? Prosecuting those who leaked the intelligence is little solace for our dead CIA operatives and soldiers. In times of war, holding detainees indefinitely, uniformed or not, to avoid exposing state secrets in habeas corpus hearings should be as logical as limiting free speech in the case of yelling "fire!" in a theater. In both cases, more innocent lives are at stake than the individual's. John D. Pearse Avon, Conn. --- Prof. Epstein's essay labors under some flawed thinking. He cites the historical suspension of habeas corpus in World War II, the Korean and Vietnam wars as invalid precedent for the war on terror because the "context is different," i.e., that historically "we know what counts as the end of the war." Implicit in this statement is that habeas corpus can be suspended for "short" wars, but not long ones or ones without a formal peace agreement signed on a battleship. It would be interesting to know the jurisprudence basis for Prof. Epstein's "duration standard."

I know of no standard that defines war as no more than X years duration, anymore than did those who lived through the Hundred Years War. He also declares constitutionally habeas corpus can be suspended only "when rebellion or invasion endangers public safety." He is obviously a man of the pre-9/11 era where invasion meant formal armies storming shores. I daresay terrorists flying planes into multiple buildings constitutes an "invasion" of the U.S. for most of us. Richard Eggers Niwot, Colo. --- Prof. Epstein argues that because "unlawful enemy combatants" are not uniformed soldiers and because they are not covered under the Geneva Conventions, therefore they are somehow entitled to more rights than are uniformed soldiers. Prof. Epstein is correct when he says "context matters," but he fails to appreciate what is the real context: I believe unlawful combatants in the war on terror are worse than criminals -- they are a pernicious cancer on the civilized world, and the cure for cancer is the scalpel, not a gaggle of lawyers funded by the taxpayer.

The cited habeas corpus precedent is not relevant in this situation. Habeas corpus presumes the innocence of the detainee absent contrary proof, that the detainee shares the values of the civilized society of which he is a part, and that the regent, being both present and all-powerful, is thus in need of reasonable limits. Today's terrorist situation is much more analogous to the gates of Rome in the late fifth century.

Kimble Johnson Louisville, Ky.

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