June 11, 2007 | National Review Online

Lawfare Strikes Again

Strike another blow for lawfare: The use of the American people’s courts as a weapon against the American people in a war prosecuted by the president — the only public official elected by all Americans — under an authorization for the use of military force overwhelmingly passed by the American people’s representatives in congress. And all for the benefit of an alien sent here to attack us.

Ali Saleh Kalah al-Marri is an al-Qaeda-trained terrorist embedded here by the terror network, right before 9/11, as a “sleeper” operative to sabotage the United States — by committing acts of terror and using his techno-skills to disrupt the economy by computer hacking. President Bush thus designated al-Marri as an unlawful enemy combatant in the war on terror, and the government proffered this and other information to a federal judge — a presentation al-Marri did not rebut.

Despite all this; despite the fact that the nation remains at war; despite the fact that Osama bin Laden, Ayman Zawahiri, and other assorted Qaeda mouthpieces continue to promise the organization is planning devastating attacks against our homeland; and despite the fact that, as we catastrophically saw less than six years ago, such attacks cannot occur absent the machinations of terrorists, like al-Marri, planted inside our country; a federal court Monday intervened on the enemy’s behalf.

Specifically, a divided panel of the Fourth Circuit U.S. Court of Appeals in Virginia ruled that the commander-in-chief may not detain a terrorist operative as an unlawful enemy combatant if that operative has managed to enter the United States and is present here lawfully — something perhaps worth the president’s consideration as he insists on trying to resuscitate an ill-advised comprehensive immigration bill that would make every illegal alien’s presence lawful.

Instead, the majority ruled that al-Marri, a national of Qatar here on a student visa, must either be given a full-blown trial in the civilian-justice system or be released. That is, our “choice” is either to afford al-Marri — who answered directly to 9/11 mastermind Khalid Sheikh Mohammed and met personally with bin Laden — a proceeding in which he would receive lavish discovery that could be extremely helpful to the people trying to kill us, or to release him so that he could rejoin the jihad and continue trying to kill us himself.

As the federal courts once again loom large in a presidential campaign, it is worth observing that this decision was written by Judge Diana Gribbon Motz, a Clinton appointee. It was joined by Judge Roger Gregory, originally nominated by President Clinton, but blocked by Republicans and finally appointed by President Bush in 2001 as an olive branch to Democrats — who quickly confirmed him before proceeding to block Bush nominees anyway. District Judge Henry E. Hudson of the Eastern District of Virginia, appointed by President Bush in 2002, dissented.


The ruling has several troubling aspects. The major ones involve the jurisdiction of federal courts — i.e., the degree to which they may intercede on behalf of al Qaeda combatants in the future — and the panel’s assessment of our current threat environment, which reflects classic September-10th thinking.

Although it did not conclusively rule on the issue (finding a technical path around it), Judges Motz and Gregory transparently indicated their inclination for finding that any alien who is lawfully present inside the United States is entitled to all the rights and privileges of the Constitution — just as if he were an American citizen.

Their reasoning on this point was faulty, and it has perilous implications for national security. Cherry-picking some loose language in prior cases, the majority purported that “every individual detained within the United States,” including all “aliens,” are fully vested with constitutional rights and privileges. (Opinion 13-14.) But federal jurisprudence does not actually go that far. The Supreme Court has held that aliens attain constitutional rights gradually as they are woven over time into the fabric of our national community. Only “U.S. persons,” a designation reserved for American citizens and lawful permanent resident aliens, are fully vested.

Indeed, even in its awful 2004 Rasul v. Bush decision, which granted Qaeda detainees statutory habeas rights, the Supreme Court declined to hold that aliens had constitutional rights — notwithstanding that the Court majority had (erroneously) found them to be inside de facto U.S. territory (i.e., Guantanamo Bay). And in its 2001 decision in Zadvydas v. Davis, which strained to give excludable aliens constitutional due process rights, the Court was careful to qualify that it was not addressing aliens involved in “terrorism or other special circumstances where special arguments might be made for forms of preventive detention and for heightened deference to the judgments of the political branches with respect to matters of national security.” (Tellingly, Monday’s panel majority cites Zadvydas but elides mention of this crucial caveat.)

Why is this distinction between statutory and constitutional rights so vitally important? For two reasons. First, if rights are conferred only by statute, Congress can eliminate or narrow them. In connection with enemy combatants, it has done the latter — balancing due process and military necessity — by two major pieces of legislation since 2005. These statutes (the Detainee Treatment Act and the Military Commissions Act) permit military tribunals (to determine combatant status and try war crimes) and limit review in the civilian courts to only the D.C. Circuit Court of Appeals, and, ultimately, the Supreme Court.

If, however, the combatants’ rights were deemed to be inherently constitutional, that would mean unaccountable federal courts, not political officials answerable to Americans, would take charge of determining how military detainees in wartime must be treated. This would be a radical departure. The Supreme Court has acknowledged, repeatedly, that the detention and trial of enemy combatants is a military determination committed to the political branches. Moreover, as the Court explained in its 1948 Chicago & Southern Air Lines decision, our system assumes that national security decisions involving foreign affairs are political, not judicial. They require a direct nexus between the decision-makers and the voters:

The very nature of executive decisions as to foreign policy is political, not judicial. Such decisions are wholly confided by our Constitution to the political departments of the government, Executive and Legislative. They are delicate, complex, and involve large elements of prophecy. They are and should be undertaken only by those directly responsible to the people whose welfare they advance or imperil. They are decisions of a kind for which the Judiciary has neither aptitude, facilities nor responsibility and which has long been held to belong in the domain of political power not subject to judicial intrusion or inquiry. [Emphasis added.]

Monday’s decision, of a piece with several pre-2005 judicial decisions that treated combatants as if they were ordinary criminal defendants — the decisions that prompted Congress to intervene decisively — is a good barometer of what will happen if the courts usurp this political field.


Why else is this so important? Well, just this weekend, former Secretary of State Colin Powell urged that the Guantanamo Bay facility for holding enemy combatants should be closed immediately. This echoes similar pleas that have reportedly been made to the president by Defense Secretary Robert Gates and Secretary of State Condoleezza Rice.

Yesterday’s ruling should remind us of why such talk is so foolish. Let’s ignore for the moment that Gimo has produced vital intelligence that has thwarted terrorist plans and helped our military and intelligence community map al Qaeda. If, for no better reason than to appease war critics, Gitmo is closed and the Qaeda detainees are brought into the United States, yesterday’s decision is added reason to fear the federal courts will hold that all alien unlawful enemy combatants, by virtue of their lawful presence in the United States, are entitled to the full array of American constitutional rights, including trial in the criminal justice system — and, as discussed above — Congress would be powerless to stop them.

Think of what that would mean. Many of the remaining 380 combatants are almost certainly being held based on intelligence (from U.S. sources or foreign services) that cannot be disclosed in public proceedings without endangering national and military security. Others, no doubt, are being held for battlefield acts that could not be proved absent pulling U.S. troops out of combat so they could testify (as if they had been agents painstakingly conducting a criminal investigation rather than soldiers engaged in life-and-death hostilities). If these combatants cannot be tried, the courts would likely order them deported or released outright. In either event, they could then rejoin the jihad — precisely the eventuality the laws of war are intended to prevent.


As troublesome as the panel majority’s jurisdictional analysis is, it pales in comparison to the court’s treatment of the merits. After all, on jurisdiction, Judges Motz and Gregory pulled up just short of rooting al-Marri’s protections in the Constitution. It found, instead, that he had a statutory right to habeas that had not been foreclosed by the MCA because the military has not yet given al-Marri a combatant status review tribunal as the MCA seems to require. (Al-Marri, unlike the Gitmo enemy combatants, got a hearing in the District Court after being designated by President Bush. The panel found this wasn’t good enough.)

The Supreme Court has previously held that alien combatants may be detained for the duration of hostilities even if they are American citizens. The panel majority did not dispute this, nor did it doubt that al-Marri is a trained terrorist — schooled during the late 1990s in al Qaeda’s paramilitary camps — who was in the United States to do us great harm. Rather, it sought to distinguish those precedents as limited to situations in which combatants are either apprehended on a conventional battlefield or working for a conventional enemy.

That is, the court astoundingly reasoned that because al Qaeda is a sub-sovereign, transnational terror network — i.e., it is neither a traditional sovereign enemy like Germany during WWII, nor an extension or militia belonging to a nation-state, like the German saboteurs captured inside the U.S. during WWII — its operatives inside the United States must be considered civilians, not enemy combatants, at least in the absence of traditional “battlefield” conditions of capture. As civilians, the judges held, they must either be tried in the civilian courts for terrorist crimes, or be released.

That is simply a preposterous assessment of our present threat conditions, to say nothing of the law. To begin with, the president’s commander-in-chief authority is premised on preserving the national security of the United States against foreign threats; it is plainly triggered when a threat is foreign; there is no requirement that the foreign threat come in the form of a nation state. The president’s job is to protect Americans, and Americans are just as dead whether they are killed by al Qaeda or Iran. There is nothing new about that commonsense reality; the 1978 Foreign Intelligence Surveillance Act, which has risen to national attention since revelation of the NSA’s Terrorist Surveillance Program, has always recognized that a “foreign power” — the kind for which FISA permits wiretapping and physical searches — can be either a national state or an international terrorist organization.

Moreover, the most dangerous operatives of al Qaeda — which continues to attempt a reprise of 9/11 — are patently those planted inside the United States. Without them, a 9/11 can’t happen. And it is worth noting that, under the reasoning of this decision, Mohamed Atta would have to have been given a full-blown trial in the civilian justice system, or released, if he had been apprehended before boarding a plane on 9/11.

Terrorists like Atta and al-Marri are walking “battlefields.” They can create a “battlefield” by acting. Any other conclusion would require the United States to endure a planned terrorist attack before the executive branch could intervene militarily. Which is to say, endure yet another terrorist attack given that al Qaeda has already struck here — in addition to braying unabashedly that it plans to do so again.

Finally, the laws and customs of war, older than the United States, permit the detention of enemy combatants for the duration of hostilities in order to collect intelligence and deplete the enemy’s resources. That is, far from cruel, they are civilizing, designed to end war more quickly, with less carnage. The Supreme Court reaffirmed their application in the Hamdi (involving an American citizen), and the Fourth Circuit itself applied their principles in last year’s Padilla case (involving an American citizen who, like al-Marri, was apprehended in the United States, planning terrorist attacks).

If these venerable standards are to be tossed aside, and our only alternative in self-defense is to try enemy combatants in the civilian justice system while the war is underway, we will then have to choose between either providing our enemies with discovery that will be extremely useful to them or releasing them to return to the jihad.

That’s not self-defense. That’s suicide. This decision must be reversed.

— Andrew C. McCarthy directs the Center for Law & Counterterrorism at the Foundation for Defense of Democracies.


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