Over the past few weeks I have become somewhat of an avid National Review reader. I find their articles interesting, however I am often frustrated with how illogical or flat-out stupid many of them are. To make the point, I present the following concerning George W. Bush's detention of enemy combatants in America.
(Italics are me)
A Logical Refutation of:
On Liberty & Lawyers
The Supreme Court hears arguments in the enemy combatant cases.
By Andrew C. McCarthy
In a very real way, listening to the Supreme Court of the United States spend two days poring over the implications of detaining enemy combatants during wartime should fill any American with a deep sense of pride. One is reminded how singular a privilege it is to live in a nation that so venerates liberty it will bestir itself to agitate even over the liberty of those trying to annihilate us — not so much because of what it means to them as what it says about us.
It is, though, a tempered pride. "Liberty" so readily evanesces from a concrete circumstance to a lofty universal aspiration to a propagandist's jingo. As it makes that warped transition, it increasingly resides in a vacuum, ever more remote from the real world, where it must compete with other facts on the ground. Facts like this one: It's no longer September 10, 2001. That old world is gone forever.
The dismaying part about the arguments in the three combatants' cases the Court is grappling with — one heard last week concerning foreign combatants detained in Guantanamo Bay and two on Wednesday dealing with American citizens held in military brigs here at home — is that it's principally Liberty the Jingo that is at issue. We are breathlessly warned that the Constitution is under assault; George W. Bush has torn it asunder by declaring the right to lock up anyone — meaning any American, in any place, at any time — and hold him indefinitely, or until the end of the vaporous "War on Terror," which could take, as Justice O'Connor speculated, 25 to 50 years. At Guantanamo Bay, moreover, the President is claimed to have erected a lawless black hole, away from the watchful eyes and jurisdiction of federal judges, for encaging foreigners on the mere suspicion of being Mulsim. Liberty, the scaremongers wail, is besieged.
I make no attempt to challenge the legality of the detention of combatants in Guantanamo Bay, for this is consistent with past actions by the U.S. during wartime, and after all, these detainees are not American citizens, and therefore have no logical claim to the same rights as Americans.
How far is the propaganda from the reality? Well, the war is now over 30 months old. During that time, in a nation of about 300 million American citizens, the president has designated exactly three — three — American citizens as enemy combatants. One, Jose Padilla (a.k.a. "Abdullah al Muhajir"), who trained with al Qaeda in Afghanistan and urged a post-9/11 mission involving the detonation of a radioactive "dirty bomb" in a major American city, is said to have been dispatched here by al Qaeda's operational leaders to conduct massive attacks on dense residential areas and industrial infrastructure. Another, Ali Saleh Kahlah al-Marri, is alleged to have been part of a sleeper cell activated post-9/11 in the U.S. for a second wave of attacks (the government has tied him by phone records to a suspected 9/11 financier, whose number, in the run-up to the suicide hijackings, was also called by ringleader Mohammed Atta). The third, Yasar Esam Hamdi, was captured while armed on the battlefield fighting on behalf of enemy forces that even today — as Army Ranger Pat Tillman's combat death in Afghanistan just last week poignantly reminds us — continue hunting and killing Americans.
This entire paragraph presupposes the guilt of all three American citizens detained thus far, stating their accusations as established fact. What the author forgets is that courts exist for the purpose of determining whether such allegations are true or not. Our government has thus far not presented any form of evidence against those accused, and the author blindly accepts these allegations as true and legally binding. Of course, if these allegations were true, there would be no question as to the legality of detaining these men. However, their innocence or guilt has not been determined, and thus there is no basis for detention. Essentially the author is presupposing the certainty that can only follow a trial, and applying that certainty to the question of whether or not these men should be detained. This is extremely inconsistent logically, and should have no place in his argument.
It is in light of these cases that the shock troops of the civil liberties jihad want you to think George Bush is coming for you, too.
But the caterwauling about the purported liberty interests of terrorists has nothing to do with the reality of liberty for you. Unless there's a colorable case that you are on the verge of indiscriminate mass homicide or are about to tote your AK-47 through Kandahar any time soon, your liberty is safe — and your security to enjoy it is better assured because the people who want to kill you are in the brig.
By stating "unless there is a colorable case," the author only points out the inconsistency of his argument. The point of the entire debate is that, as President Bush is doing things, there is no necessity to "color the case," because the government never has to present evidence of guilt or any substantial justification for detention.
And what of Guantanamo Bay? These are enemy fighters captured on the battlefield. There is, it bears repeating, a war going on. We could have killed them. Instead, we took the lesser measure of capturing them. As the Defense Department has recently announced, over 10,000 people — enemy forces and their sympathizers — have been removed from theaters of combat in Afghanistan. They were not all shunted off to Gitmo. They were, instead, initially screened to determine whether they were actually enemy combatants, whether they posed a continuing threat to our forces, and whether interrogating them extensively would likely yield intelligence that could help defeat the enemy, save lives, and end hostilities more promptly. Of the roughly 10,000, less than eight percent, or a little under 800, were shipped to Gitmo, where they have been humanely held and interrogated.
Contrary to the bombast, the military does not have a great incentive to hold captives endlessly. Once their intelligence value is exhausted, detaining them is burdensome, and makes sense only insofar as they pose a mortal threat. As a result, of the original 800 Gitmo detainees, scores have already been released — to the point where we are now holding perhaps 650 prisoners, the ones believed to be most dangerous. And, as Newsweek reports this week, releasing many of these may have been a profound mistake — and one made with an eye toward appeasing critics who, we should know by now, will never be mollified as long as even one terrorist's exertions are being impeded. The released detainees are, predictably, rejoining the battle, taking up arms once again against America.
At too many times during the arguments, in the remove and grandeur of a courtroom far, far from the smolder of the battlefield, Liberty the Jingo seemed awfully weighty as it jousted with these and other new world facts. Our nation has been viciously attacked. Three thousand of our fellow citizens were slaughtered. The enemy demolished a staunch symbol of the economy that is the backbone of our free society, while simultaneously striking at the seat of our military might. We are in a state of war, and it is anything but technical. Nearly 150,000 of our armed forces are in harm's way, lining hot battlefields in Afghanistan and Iraq. They are still being shot at, wounded and killed. Further, the enemy brayed to the world only days ago that it was working, ever working, to plot attacks during 2004 that promise to dwarf those of 9/11 — even as the carnage of the last three years still stuns Madrid, Baghdad, Riyadh, Istanbul, Bali, Casablanca, Djerba, and other victims of militant Islam.
These facts may underscore the obvious necessity of our nation to address the topic of terrorism, but they have absolutely nothing to do with whether or not the President should be able to assume the guilt of anyone he pleases, detain them, and never be obligated to present any form of compelling evidence as to the detainee's guilt. Using this same logic, President Bush could label John Kerry, your family members, or anyone else as a combatant, and detain them indefinitely, simply by issuing statements to the public that the government has information ensuring their guilt. We are left to trust the executive branch to always tell the truth, knowing that they will never have to substantiate their claims. This is unacceptable for any free society, whether at war or in peacetime.
Despite all that, it was not the combatants' counsel but the government that was pressed hardest by the Supreme Court, some of whose members were viscerally disturbed about the seeming "indefinite[ness]" of the detentions. No one quibbled with the President's undoubted power to round up combatants in the first hours or days after the 9/11 attacks, but, for goodness sake, it's been two-and-a-half years now, and how are we to know how long these people will be held without trial?
This paragraph is illogical and misleading, as it implies that the American people approved of indefinite intentions and then somehow lost their dedication to the cause. In reality, no one contested the President's power to "round up combatants" because this "rounding up" was, at least during an intially reasonable period, no different from any normal arrest, in which obviously the accused must be detained pending trial. By no measure have our government, our Constitution or our representatives ever agreed that supension of due process is an "undoubted power."
It's the kind of abstraction closest to a lawyer's heart: the argument based on some hypothetical abuse peculiarly detached from the facts on the ground. Thirty months would indeed be a long time if the last shots had been fired long ago. As it happens, there is a very live war going on. It is a war that will destroy all of our liberties if we don't win. But part of the Court plainly wants the government to pick a number out of the air — 30 months? three years? five? Some arbitrary time, unrelated to the progress of the war, when it would somehow feel like justice to say: You've held them long enough — charge them with crimes or let them go.
Obviously the author is not familiar with the concept of legal precedent. These "hypothetical" and "detached" "abstractions" are necessarily considered in absolutely every judicial decision in history for the simple reason that, if these situations were not considered, our laws would be chock-full of loopholes for criminals to slip through. Without these "abstractions", for example, as soon as some future President decided to detain a political opponent on the grounds that his government had found him to be part of a terrorist plot, he could cite a legal precedent for his actions, without presentation of evidence or a compelling argument of the opponent's guilt.
This misses two core points. First, as already noted, letting them go while hostilities rage means letting them go shoot at our troops or terrorize our homeland. The idea here is to defeat the enemy, not send it reinforcements. Second, the arguments seemed devoid of any sense of how harmful court proceedings could be to an ongoing war. Justice Breyer opined that we use the court system all the time to neutralize bad guys — as if Congress had authorized the President after 9/11 to fight the Latin Kings or the Bonanno Family. At least twice, Justice Ginsberg matter-of-factly asserted that the combatants must be presumed innocent. Well, with due respect, no. They are not criminal defendants — at least not now.
This paragraph seems to mainly concern those detained at Guantanamo Bay, and I agree with the points there. However, concerning his final statement that "they are not criminal defendants", in the case of American citizens, this is simply not true, for the reasons delineated above.
They are enemy combatants. Upon being confronted by our troops on the battlefield, they are not presumed innocent; they are attacked, killed, or captured. Capturing them is part of the war effort, not a conversion into a court case. We are not trying to convict them; we are trying to defeat them. And we would decidedly not be advancing the urgent national cause of defeating them if we brought them to court, armed them with all the rights of criminal defendants, and had trial judges instruct jurors that they should presumptively be walked out the courthouse door unless the government has produced compelling quanta of proof — evidence the publication of which, through our very public criminal process and generous discovery rules, would arm the enemy, in the midst of the war, with a trove of intelligence about our information, our sources of it, our methods of obtaining it.
Here again the author either attempts to group those in Guantanamo Bay and the American citizens together, or simply omits anything expressing the differences. Only one of the 3 American citizens in question was "confronted by our troops on the battlefield." One must obviously make a distinction between those captured in a combat zone, in direct conflict with our military, and those captured on American soil. This distinction arises simply from the fact that being captured armed and among the ranks of enemy soldiers is in and of itself a condemning reason for detention which makes one guilty. On the other hand, in the case of those captured within the U.S., there is no such clarity, and this uncertainty makes necessary a trial, so as to ensure against abuse of executive power within our nation.
Further lawyering the war process, some members of the Court, Justice Souter in particular, factitiously parsed the sweeping use-of-force authorization Congress extended to the president a week after the 9/11 attacks. The government argues, based on the Civil War-era Prize Cases, that the president is independently vested with power to repel threats against the U.S., and that, when that power is enhanced by a congressional authorization, the executive stands at the apex of his constitutional warrant. In this instance, America was brutally attacked, and Congress reacted within days with a joint resolution exhorting the President to "use all necessary and appropriate force against those nations, organizations, or persons" that either carried out the attacks, harbor those who did, or are planning future attacks. It could not be clearer that Congress did not distinguish between Americans and non-Americans — and it was already well known in 2001 that some al Qaeda affiliated terrorists were Americans, and that some of its cells operated domestically; we had established that during the terrorism trials of the 1990's.
The argument being made here by the author is that the authorization by Congress "to use all necessary and appropriate force against those nations, organizations, or persons" does not distinguish between Americans and non-Americans. This is true, but has no relevance because the federal resolution is bound from above by the Constitution itself, and therefore can only be applied within the limitations of the Constitution (most importantly the 5th Amendment). Since obviously the 5th Amendment broadly guarantees due process to American citizens, this Congressional resolution can in no way override due process in any circumstance. In order for such suspension of due process to be legal, it would need to be amended to the Constitution itself. This has obviously not happened, and therefore no suspension of due process can be Constitutional.
But Justice Souter — seeming oddly insulated from both al Qaeda's recent threats and its onslaught of international atrocities — appeared to think the president's own authority to meet and defeat threats on the U.S. had petered out within a few days of 9/11. That left the congressional resolution, about which he and others brainstormed that perhaps it didn't really mean what it says. Does the use of force — which indisputably includes killing — really include the less drastic measure of capturing and holding? And, sure, Congress said all "persons" but did it really mean American citizens and those captured on American soil?
The issue here is not that the president's authority had "petered out", but rather that he never had the authority under the Constitution to deny due process. Furthermore, the resolution did indeed "mean what it said," however if the resolution attempted to deny voting rights to a group of Americans, it would be just as invalid as any interpretation that the resolution calls for denial of due process. It is simply how our legal system works. The Constitution is binding over federal law, and federal law is binding over state law, etc.
This, a friend of mine has jibed, is why people hate lawyers. And it's hard to argue with that. As Justice Kennedy wisely observed, historically declarations of war are simply not written to contemplate every conceivable contingency. But at times, listening to the justices, one imagined future declarations: monstrosities that would look more like the tax code or the federal sentencing guidelines than timely, clear, unadorned directions to do the things that for centuries have been done by nations to vanquish aggressive belligerents.
The point the author is making here depends on his definition of an "aggressive belligerent." If by this he means those captured in combat zones, or those who are not American citizens, he is correct. Nations have indeed for centuries practiced these traditions during warfare. If however he means those who have unsubstantiated allegations brought against them by the government, he is wholly incorrect. There is no legal precedent for the indefinite detention of American citizens without a burden of proof on the accusers.
This also brings front and center a reason why conservatives so often complain about the Court's imperiousness. Even the justices most manifestly troubled did not seem to doubt that Congress could authorize, and the president execute, the use of even overwhelming deadly force. Nor was there real dispute that the power to do the greater necessarily includes the power to do the lesser — that it is appropriate merely to capture and detain those you are empowered to kill. Nor, really, could it thus be credibly questioned that the authorization, as written here, could easily be construed to permit the detention of all enemy combatants until the end of hostilities. But rather than leave it at that, some of the justices want more — a positive statement that the facts of these specific cases were within the ambit of legislative contemplation, as well as a certain date when, regardless of what impact it might have on national security, we can either begin jury selection or open the jailhouse doors.
Here the author creates a phantom issue, which has nothing to do with the issue at hand. He states "Congress could authorize, and the president execute, the use of even overwhelming deadly force." This is simply not true. The government does not have the right to use overwhelming deadly force against its own citizens without first providing them with a trial. (Excepting cases where, in an attempt capture a suspect, the suspect endangers the lives of those around them or those attempting the arrest. Even in this case, the actual goal is arrest and trial, not use of deadly force.)
Of course, even if Congress gave them all that, there would be another case tomorrow with new facts unexpressed in the revised resolution, and the merry-go-round would start anew. More to the point, the give-us-more methodology bespeaks a lack of faith in the political process and ignores that Congress often speaks by not speaking. Maybe there's no new resolution because there's no popular perception of a problem. If the American people were up in arms about the detention of three American terrorists and 650 foreign enemy troops who belong to forces that have thus far killed over 700 of our military and thousands of our civilians, there would be little reason to fear. There would quickly be a plethora of legislation calling for release, or at least greater scrutiny of the administration's actions. If broad coalitions in Congress thought for a second that the president's actions had breached the confines of the post-9/11 resolution, there would be a new resolution, cabining executive action where it had heretofore been excessive. That this has not happened is eloquent testimony to the measure, reasonableness, and humanity-indeed, the American-ness — with which we have met our foes, even as they pursue their holy war.
Lack of outcry in the face of illegal policy does not mean those policies are correct. For hundreds of years, there was no widespread outcry against slavery. Women could once not vote, and there was no widespread outcry. Will anyone take the position that these practices were just and in accordance with our Constitution simply due to the people's lack of outrage? Also more importantly, there should not be expected a large-scale outcry against this legislation. It is not the job of the legislative branch to ensure the protection of the Constitution. That responsibility is left to the judiciary.
It is difficult to predict how the combatant cases will be resolved. Oral argument is not always a good barometer of where judges stand on a dispute; sometimes their questions convey a view, sometimes they are merely meant to provoke and challenge, the better to sharpen the debate. In the Guantanamo case, the Court should stay out of it and let the branch responsible for fighting the war — which has done it thus far to great effect and with dignity — decide whom to kill, whom to capture, and whom to hold, without judicial second-guessing. But even if the Court flexes its muscles by seizing unprecedented review power, it is likely to exercise that power deferentially, approving the military's actions and giving our enemies scant reason for hope — although potentially bogging the war effort down in legal process.
The American enemy combatants are a more worrisome call. It would be nice if the Court reaffirmed its World War II era ruling in Ex Parte Quirin that being an American does not inoculate an enemy from unlawful combatant treatment; but even if the Court were to lay groundwork for future, periodic judicial scrutiny to ensure that detention remains warranted, it is hard to believe the justices will look past the continuing al Qaeda peril and swing open the door to civilian trials, and all the damage they could wreak, in the middle of a war.
The opinion of the court in Ex Parte Quirin was the following:
"The Court's opinion is inapplicable to the case presented by the present record. We have no occasion now to define with meticulous care the ultimate boundaries of the jurisdiction of military tribunals to try persons according to the law of war. It is enough that petitioners here, upon the conceded facts, were plainly within those boundaries, and were held in good faith for trial by military commission, charged with being enemies who, with the purpose of destroying war materials and utilities, entered or after entry remained in our territory without uniform-an offense against the law of war. We hold only that those particular acts constitute an offense against the law of war which the Constitution authorizes to be tried by military commission...." (my emphasis)
This obviously sets no precendent for detention without presentation of evidence. The court explicitly stated that their ruling only applied to that single case. Furthermore, in this case there was actually evidence presented to the court, and the court ruled on this evidence. There is no possible way to logically extrapolate these conclusions to apply to the current situation in which the government seeks to completely exclude the judiciary and indefinitely hold these men without evidence. Secondly, to claim that the trial of those very few American citizens captured as part of the war on terror would "damage" the war effort is ridiculous. There have thus far been only 3 such men captured, and there most probably will not be many more. This is a load I am confident our legal system can bear.
All that, however, is almost secondary. What these cases best display is that liberty, as both an ideal and a reality, is alive and well. For all the pernicious atmospherics, our government has been a model of restraint, and these essential detentions do not foreshadow tyrannical abuse.
Tyrannical abuse does not necessarily have to be "foreshadowed" or imminent in order for this to be an issue. The primary concern of the legal system that this writer seems to hate so much is to ensure his rights against the slightest possibility of tyranny. One should not so easily and illogically belittle and criticize the actions of those solely responsible for the protection of liberty in our nation.
