November 15, 2005 | National Review Online

Snatching Defeat from the Jaws of Victory

The Senate reverses itself and opens the courts to al Qaeda.

I wrote Monday that late last week, the Senate–after a year-and-a-half of fiddling while Rome burned–had finally acted to bar al Qaeda terrorists detained in Guantanamo Bay, Cuba, from using the courts of the American people as a weapon in their war against the American people. Well, when it comes to the Republican-controlled Senate, such lauding is always done at one’s peril. The ink was not yet dry (or the online equivalent) on that article when our distinguished senior legislators struck another of their craven compromises.

Last week's 49-42 margin demonstrated that the votes were there to win. Nevertheless, the chamber has now reversed itself. By a vote of 84-14, the senators resolved Tuesday that the ultimate decision about who is properly considered an “enemy combatant,” should rest with federal judges, not our military commanders who actually confront the enemy in the life-and-death of the battlefield.

Snatching defeat from the jaws of victory, Senator Lindsey Graham chose to make common cause with Senate Democrats, led by Senator Carl Levin, who favor treating the people trying to annihilate us as if they were ordinary criminal defendants. Yes, the military commissions favored by the administration will go forward — at least for now. But the compromise would allow any prisoner who received a sentence of ten years or more of imprisonment (including death) automatically to appeal to the U.S. Court of Appeals in Washington. The civilian courts will have the final say.

The ten-year threshold, by the way, is as slippery as the rest of the compromise. Leaving aside that any real terrorist is plainly going to get more than a ten-year sentence, the deal provides that even detainees who do not qualify for the automatic review would still be able to seek discretionary review — i.e., it will be up to federal judges, unilaterally, to decide whether to disturb the military ruling.

The Senate has deigned not to scuttle the commissions outright and demand full-blown civilian trials with all their attendant, defendant-friendly, constitutional protections. Consequently, despite the reversal, the Graham/Levin deal is still being spun — especially by Graham — as a victory for the administration and for the separation-of-powers tradition that dealing with enemy forces in wartime is an executive-branch function.

But don't be fooled by the spin. It's laughable. Everything that happens in the commissions would be reviewed by the judges if this measure passes. And if the commissions don't sufficiently emulate civilian courts, how should we suppose that review will go?


Sixty years ago, the Supreme Court acknowledged in no uncertain terms that war-fighting and its component function of handling enemy captives is beyond the competence of the judiciary. “The trial and punishment of enemy combatants,” ruled the Court in United States v. Yamashita (1946), is an essential part of the “conduct of war” — a task committed by the Constitution to the president.

No more. Not if the compromise becomes law.

As Sen. Graham anticipates, each detainee would be permitted to challenge, in federal appellate court, whether he was “properly determined to be an enemy combatant.” Why a lawyer in a robe should be a better judge of that than a military professional, we are not told.

Just imagine for a moment if the Senate decided that judicial decisions on, say, the admissibility of evidence at civilian trials or the constitutionality of restrictions on speech should henceforth be subject to second-guessing by a panel of soldiers. We'd of course think that was madness. But not this.

No, as with other vagaries of life that our obsessively-litigious society has delegated to the courts, who is an enemy combatant? is now a legal question, not a battlefield reality. And that's going to make the battlefield a much more dangerous place for our troops — as judges, law professors, human rights activists and, yes, senators continue pretending it is a place somehow akin to the arena of domestic policing.

Consider this: Cops are trained to collect evidence methodically, preserve it pristinely, carefully interview subjects and witnesses, and diligently write reports. Generally speaking, none of this goes on in the fog of war, where they would have the additional urgent concern of being bombed, strafed or captured while assembling the case.

Law-enforcement officers conduct themselves in this step-by-step fashion because they know judges and defense lawyers are not going to care — months or years down the road, when the trial finally happens — what stresses they may have been under during their investigation. Under the banner of due process, in a comfortable courtroom far removed from the exigencies of the moment, judges are going to demand that the investigation has been reliably enough conducted to premise the severe consequence of a jail sentence — a weighty standard in homage to the reality that the person whose liberty is to be deprived has rights under our Constitution.

Let's ignore for a moment that alien enemy operatives captured overseas in wartime have never come into the jurisdiction of our courts and don't have rights under our Constitution. The simple fact is: our military men and women are not cops. Theirs is not the job of the gumshoe. Their task is to advance aggressively on military objectives. If they capture the enemy, it is in the chaos of combat and in lieu of killing him — something they have not heretofore needed a judge's permission to do (but stay tuned — perhaps the Senate will get around to that, too).

Our troops are the greatest fighting force in the history of the planet largely because of the single-mindedness with which they go about their business. They are not expected to stop along the way, to take notes, and to preserve evidence. They are not trained to think that when they grant quarter, when they capture an enemy rather than killing him, the fallout of that act of mercy will be courtroom litigation.

That, however, will be the new reality. Long after the heat of the battle, a panel of U.S. judges will now evaluate their decisions. A panel of robed lawyers will second-guess the determination of their commanders on scene that certain captives warranted detention — that holding them would be beneficial to the war effort (you may remember, there's a war we're supposed to be trying to win). Beneficial either for intelligence purposes, or to prevent them from rejoining the jihad — as we know several combatants have done precisely because of the political pressure caused by those agitating on their behalf.

On what standard of proof? Must our troops prove their captives are enemy combatants “beyond a reasonable doubt”? By an “preponderance of the evidence”? Must there have been “probable cause”? We're not told. Is Congress going to supply the standard or allow the courts to make it up as they go along (which always trends in favor of increased rights for defendants)? We're, again, not told. We can be sure of one thing: if Congress does not build in a standard that is broadly deferential to military decisions in wartime, this Senate compromise will ultimately transform the military commissions into the very criminal trials the commissions were set up to avoid.


And it gets worse. As we know from numerous investigations since 9/11 that have critiqued American intelligence, our informational assets overseas are sparse. We rely, heavily, on foreign services. Up until now, those services — who are just as concerned about their precious methods and sources of information as we are about ours — have agreed to share intelligence with us because they haven't needed to worry about its being exposed in American judicial proceedings. Well, that solace just ended.

If U.S. judges, applying some standard of proof, are now going to decide whether some terrorist was properly deemed an enemy combatant, they are going to want to know what that intelligence was. In the name of courtroom due process, they are no doubt going to want to ensure that the validity of that intelligence was adequately challenged — that the terrorist and his (you can bet) taxpayer-subsidized lawyer got access to the information and a full and “fair” opportunity to poke holes in it.

Under those circumstances, why would foreign intelligence services continue to share their information with us at current levels? Intelligence that helps protect our forces and facilitates the accomplishment of our military objectives?

And it doesn't matter that the judges will try to be responsible in setting due process guidelines about the dissemination of this information. What matters is incentives. American judicial proceedings are justifiably well known for the generous disclosure of sensitive government information that they accord to defendants. Foreign intelligence services are well aware of that reputation. If they become concerned about it, as they will, the easiest and most sensible thing for them to do is stop telling us what they know.

Why are we risking the national security debacle of saddling our troops with the burdens of criminal investigators and denying them precious intelligence? All so that we can impress with our high-mindedness people who elevate “fairness” to homicidal maniacs over the lives of innocents. It bears remembering, though, that it was by making just this calculation — by valuing the asserted civil liberties of terrorists over the safety of the American people — that we paved the way for 9/11. In the Senate, it appears to be September 10th all over again.


In any event, the “fairness” doesn't stop with judicial control over the combatant status determination. Graham also said the compromise provides that each terrorist will be able to challenge in court whether his “conviction followed the military commission procedures in place.” But wait a minute. Isn't that exactly what criminal defendants get to do in civilian courts? Yes, of course it is.

You can already see how this plays out. The combatants will challenge various alleged “errors” in their military commission proceedings — which will undoubtedly reflect ways in which the commissions fall short of the defendant-protections that obtain in a regular criminal trial. The courts, which have a fondness for those protections, having created most of them, will agree that the commissions could stand this or that “improvement” in the spirit of “due process” and the “integrity of the proceedings” — again, for people who are entitled to neither civilian due process nor civilian courtroom proceedings.

Before you know it, incrementally, the commissions will no longer be a creation of the executive branch carrying out its constitutional prerogative to deal with captured enemy forces. More and more, they will resemble civilian criminal trials because the federal courts — which, by the nature of their responsibilities, are as much concerned with justice for the accused as the security of the American people — will be second guessing them at every turn.

Finally, even though the senators are said to be endorsing the president's military commissions, Graham indicated that the door would be open to the enemy to challenge the constitutionality of the whole enterprise. But just a second, you say. Non-Americans who have never entered the United States and are held overseas don't have rights under the U.S. Constitution, do they? How can they contend their “constitutional” rights were violated?

They can do so by having their very effective, publicly subsidized lawyers look the judges in the eye and say: “We are here. The U.S. Congress gave us access to this court system because it believed we belonged here, because it believed we had rights and interests to be vindicated and protected. Certainly you judges don't think they sent us to you as an empty gesture.”

And you can take this to the bank: The judges won't treat it as an empty gesture. Remember, U.S. courts have already determined at one time or another in the last year-and-a-half that our enemies have a right to be in court, a right to free counsel and investigative resources, and a right to be treated as honorable prisoners-of-war under the Geneva Conventions (a ruling that was later reversed but is being appealed). These are all steps the courts took before the Senate decided to put them in charge. What should we imagine they'll do once Congress has handed them the reins.


So how is this a compromise? What did those who seemed to have won last week retain of their victory? They got some window-dressing. The combatants will not be permitted to further flood the courts with cascading complaints about the conditions of their confinement. Big deal. Those claims were frivolous anyway. Guantanamo detainees receive solicitous treatment — accommodations to their religious practice, recreation time, and they eat better than you do. Besides, such concerns are not the important ones.

The important ones are about who gets to direct the war effort. Up until now, that's been the commander-in-chief and the military — free to detain enemy combatants based on their professional assessment of who has intelligence that might help us prevail, and who is likely to start killing our soldiers and our citizens again if released.

But if this compromise becomes law, the question will be whether civilian judges are satisfied that al Qaeda's “rights” have been respected.

Andrew C. McCarthy, a former federal prosecutor, is a senior fellow at the Foundation for the Defense of Democracies.