Jon Kyl, March 5, 2007

Last month a federal appeals court upheld the provision of the recently enacted Military Commissions Act (MCA) that establishes the legal procedures for dealing with detainees being held at the Guantanamo facility in Cuba. The court ruled that non-US citizens being held abroad are not entitled to US constitutional protections.

The MCA and a companion law, the Detainee Treatment Act (DTA), provide military tribunals to determine the status of each detainee. The decisions of military tribunals and commissions are then reviewable in the U.S. Court of Appeals for the D.C. Circuit. Prior to this appeals process, each enemy combatant in U.S. custody is given five layers of review to ensure that his detention is lawful.

This review system is unprecedented; it provides more procedural rights to the Al Qaeda detainees held at Guantanamo than any nation has ever provided to captured enemy soldiers in the history of armed combat.

Moreover, this system provides more procedural protections to unlawful enemy combatants than the Geneva Convention (the international treaty governing the treatment of captured enemies in war) provide to lawful enemy combatants. The Geneva Convention only requires a status hearing when there is substantial doubt about a detainee’s status. The U.S. military is providing review hearings to all enemy combatants held at Guantanamo.

The MCA makes clear that alien enemy combatants have no right to sue U.S. troops in our courts, nor could such a right be reconciled with practical reality. Such a right had been claimed by detainees’ lawyers under the habeas corpus provision of the Fifth Amendment. During World War II, the United States captured and held over 2,000,000 enemy combatants. Over 425,000 of these were detained inside the United States. Except for a few who were U.S. citizens, none of these prisoners were allowed to challenge their detention in court.

It is unimaginable that all of these detainees would be allowed to file habeas petitions in federal court. The point of holding prisoners of war is to prevent them from re-entering the battlefield, not to try them for crimes. Few of the terrorists will be charged criminally, though some have been and will be released when they are no longer deemed a threat.

The court of appeals was right about the law. Alien enemy combatants have never enjoyed the right to sue our military in our courts in the history of war, and Congress should not grant them such a right -- especially since they have already been given due process and access to review in our federal court system.

As the Supreme Court noted in its World War II era Eisentrager v. Johnson decision, granting habeas rights to enemy combatants would "hamper the war effort and bring aid and comfort to the enemy."

It is a constant amazement to me that some in the U.S. seem more concerned about extending legal protections to terrorist than security protection to Americans. Congress might well be debating an effort to grant habeas rights to detainees next week. I will do everything in my power to defend the laws Congress has already passed and prevent new legal rights for detainees to sue our military using a procedure

Senator Jon Kyl, a Republican, represents Arizona in the U.S. Senate. He serves on the Senate Judiciary Committee, the Finance Committee, and the Energy and Natural Resources Committee.