Should foreign terrorists have the right to sue U.S. troops?

The U.S. Supreme Court recently decided that even prisoners in the war against terrorism have a legal right to contest their "status"--even those who would kill us in an instant if given half a chance. They can do that by suing their captors under a statute that is available to criminal defendants in U.S. Courts. But this procedure (called a writ of habeas corpus) is not a Constitutional right for non-U.S. citizens. Neither prisoners of war nor terrorist detainees have ever had such a right in previous wars.

The detainees at Guantanamo Bay, Cuba, have been called the worst of the worst. These terrorist trainers, bomb makers, recruiters, financiers and bodyguards of Osama bin Laden have indiscriminately targeted civilians.

For a variety of reasons, they do not qualify for the protections of the Geneva Conventions. Nonetheless, official U.S. policy is to apply Geneva standards, including access to lawyers, Red Cross visits and so forth. A Combatant Status Review Tribunal (CSRT) system allows every detainee to challenge his designation as an enemy combatant, and the status of each is assessed annually by an Administrative Review Board.

Each detainee is assigned a military officer as a personal representative, to assists in hearing preparation. Detainees have the right to testify before the tribunal, call witnesses, and introduce any other evidence. The question has been their rights to challenge the CSRT decisions in federal court.

An amendment I recently co-sponsored with Senator Lindsey Graham (R-SC) and Carl Levin (D-MI) codified the traditional assumption (overturned by the recent Supreme Court decision) that federal law does not grant enemy combatants detained outside the United States the unfettered right to file suit in U.S. federal courts.

The amendment would allow a one-time federal court review of military court decisions at Guantanamo, but it would be limited to the question of whether proper procedures and standards were followed.

The amendment was adopted by a vote of 84-14 and included in the Senate Defense Authorization bill, which is now being merged with the House of Representatives' version.

It's important to make clear that this amendment does not affect the cherished and historic habeas corpus rights of American citizens.

It's simply a necessary clarification for detainees since, for the first time in our history, foreign terrorists in large numbers have begun to claim the same benefits as citizens under the Constitution and our laws. More than 160 habeas cases have been brought in the District of Colombia Circuit Court on behalf of approximately 300 Guantanamo detainees.

Without clarification of the law, all 500 detainees at the facility, and many more in the future, could demand federal court hearings not only on whether the government correctly classified them as enemy combatants, but on any other subject as well. Some have already sued over matters such as the kinds of reading material that are made available to them.

International law allows any nation the right to detain enemy combatants for the duration of a conflict. We certainly never "tried" captured Nazis or Japanese POWs in World War II (with the exception of a few leaders charged with war crimes), although many were held for years.

The primary reason we detain members of al Qaeda is to prevent them from killing more Americans, and, secondarily, to gather useful intelligence.

Allowing terrorist detainees to file multiple lawsuits against their captors doesn't just make a mockery of our justice system, it impedes that critical intelligence function. Michael Ratner, a lawyer for numerous Guantanamo detainees, boasted to Mother Jones magazine in March that:

"The litigation is brutal for [the Untied States]. It's huge. We have over one hundred lawyers now from big and small firms working to represent these detainees. Every time an attorney goes down there, it makes it that much harder [for the U.S. military]. You can't run an interrogation...with attorneys."

My colleague Sen. Lindsey Graham of South Carolina recently responded on the Senate floor: "The detainees at Guantanamo are not American citizens facing criminal trial, [but] terrorists who have taken up arms against the United States. There has never been a time in our military history where an enemy combatant or prisoner of war has been allowed access to federal court to bring lawsuits against the people they are fighting."

In other words, foreign terrorists have never had the right to sue U.S. troops. And now is certainly not the time to give it to them.

(Senator Kyl, R-Ariz., serves on the Senate Finance and Judiciary committees and chairs the Senate Republican Policy Committee.)