December 12, 2011 | National Review Online

The Real Rules of Detention

Earlier this week, Sen. Rand Paul (R., Ky.) responded to my column from last weekend, which criticized (a) his endorsement of enhanced constitutional protections for alien enemy combatants (the practical effect of his call for a return to pre-9/11 counterterrorism), and (b) his proposals to bar the government from subjecting to indefinite military detention al-Qaeda operatives who happen to be American citizens. Senator Paul’s rejoinder described my first claim as a misleading “strawman,” then rehashed his arguments on behalf of American citizens who join our enemies’ war against us. I’ve already addressed the “strawman” complaint. In this column, I undertake to refute Senator Paul’s arguments against law-of-war detention for American enemy combatants.

Those arguments fare no better in the retelling than they did when the Senate decisively rejected them last week. It is true, as Senator Paul says, that “civil liberties need defenders.” Those defenders, however, are not much good if they don’t even grasp how ordinary law-enforcement works, let alone how civil liberties have historically been subordinated to wartime national-security needs — and I refer here not to faux “needs” like abusive TSA groping of patently non-suspicious Americans, but to the real danger posed by treating traitorous enemy combatants as if they were mere criminals.

Unfortunately, Senator Paul, though a stellar medical doctor, is a law-enforcement dilettante. Have you heard the refrain, “If you see something, say something”? Most Americans appreciate that the authorities mean “something” that arouses reasonable suspicion. Not Senator Paul: He frets about an FBI publication that lists some traits that the public should be alert to — “possession of ‘Meals Ready to Eat,’ weatherproofed ammunition, and high-capacity magazines; missing fingers; brightly colored stains on clothing; paying for products in cash; and changes in hair color.”

Empirically, these traits have coincided with participation in terrorist plots. Acknowledging that unremarkable coincidence, however, does not extinguish our common sense — we also know that the presence of one, two, or even several of these traits may have nothing to do with terrorism. In his paranoia, though, the senator has convinced himself that one or two such indicators, standing alone, could result in American citizens’ being designated as enemy combatants and detained for untold years without trial or due process. The medical analogue would be that, upon spotting a single contusion, a doctor peremptorily diagnoses leukemia and commences aggressive chemotherapy.

Does Senator Paul seriously think the government jumps pell-mell from checking off an item or two on the FBI’s list to incarceration at Gitmo? I hope not. Palpably, the FBI’s point is that if a person spots something he reasonably thinks is suspicious, he should call the FBI. Pace Senator Paul, the agents do not respond by running right out to make an arrest — if, while racing up the Capitol steps, you’ve spilled peach-mango sherbet all over your nice white shirt, no one is going to confuse you with Ayman al-Zawahiri.

Instead, the FBI asks a few questions. If it turns out that all the informant saw was a brightly colored clothing stain, an agent politely thanks him for the call, rolls his eyes, and gets back to work. On the other hand, let’s say the informant reports that, besides a bright stain on his shirt, his neighbor also has a few missing fingers and oddly scented smoke floating up from under his door. In that context, the agent may reasonably speculate that the stain and the missing fingers could signal the sort of amateurish mishap that often occurs when would-be terrorists try to mix chemical explosives. But even then, the agent does not run out and make an arrest, designate the arrestee an enemy combatant, and imprison him without trial. Instead, the agent opens an investigation — in which, you can rest assured, he won’t ask whether the neighbor happens to be a youngish Muslim male, in deference to Muslim Brotherhood–approved investigative protocols.

Whether or not there are grounds for further investigation, there will be no arrest absent solid evidence that connects the traits observed to likely terrorist activity — evidence developed by surveillance, witness interviews, insight from more knowledgeable informants, wiretaps, and other standard investigative techniques. Moreover, because this is the FBI, that investigation is likely to be done under the civilian due-process protocols that Senator Paul admires — grand juries, civilian prosecutors, and federal district judges.

Even a terrorism investigation does not become occasion for leaping to the “enemy combatant” conclusion unless the agents uncover proof of an operational connection to al-Qaeda or the Taliban. Under acts of Congress enacted since 9/11, no one — no American citizen and no alien — qualifies for enemy-combatant status absent proof that they either participated in the 9/11 attacks or have abetted those named organizations in their war against the United States. That is why, in the decade since 9/11, most terrorism cases are still handled by civilian courts. That is why, during that decade, fewer than a half-dozen American citizens have been detained as enemy combatants. No one is held without trial over a clothing stain.

But let’s indulge the Paul paranoia and imagine that an agent gets the dirty-shirt call, and that none of the supervisors in the FBI’s extensive national-security chain-of-command pipes up to say, “Hey, it’s crazy to arrest someone — for terrorism or anything else — over something so flimsy.” Let’s further assume that the Justice Department’s many layers of supervision go merrily along with this lunatic rush to judgment. Our American citizen detainee would still have a right — under congressional statutes complemented by Supreme Court decisions and a growing body of combatant law in the D.C. Circuit — to file a habeas corpus petition challenging his detention in federal district court. And if a wayward judge there somehow denied the petition, the detainee would get to appeal to the D.C. Circuit and, if necessary, to the Supreme Court.

That is, even without a jury trial, the wrongly detained citizen would receive elaborate due process. Indeed, he’d probably win his release more quickly than if he’d been charged with a crime. Many terrorism defendants wait years before their civilian trials start, and most trials take months to complete.

A few other points of rebuttal. Senator Paul is wrong in claiming that the Supreme Court’s 2004 Hamdi decision, upholding the detention of an American citizen as an enemy combatant, has no bearing on terrorists arrested inside the U.S. In Hamdi, the dispositive fact was not that Yasser Hamdi was captured in Afghanistan but that he was an American citizen. That is certainly how the Fourth Circuit Court of Appeals saw it in upholding Jose Padilla’s detention as an enemy combatant even though Padilla, an American citizen, was captured on American soil. Senator Paul’s admiration for civilian courts seems to grind to a halt once they rule against his preference to equate war with crime — as they have been doing for many decades. Thus, he ignores the Padilla ruling, just as his fleeting allusion to Ex Parte Quirin manages not to mention the Supreme Court’s unanimous approval of the military detention, commission trial, and swift execution of Nazi saboteur Hans Haupt, an American citizen President Roosevelt designated as an enemy combatant.

Nevertheless, it is abundantly clear that due process for all enemy combatants — and particularly for American citizens, whose entitlement to judicial review has been conceded by the government — has grown markedly in the 70 years since Quirin was decided. Today’s detainees have exactly the “traditional aspects of constitutional due process” that Senator Paul cites the Hamdi ruling as mandating: notice, an opportunity to be heard, a neutral forum, and (once they get to court) assistance of counsel.

Still, it is worth remembering that the terms “due process” and “civilian trial” are not synonymous. Due process is simply the process that is due under the circumstances. In wartime, it is simply not necessary to grant combatants full-blown civilian trials — which would be an intelligence coup for our enemies — in order to ensure that Americans are not arbitrarily detained. Indeed, though Senator Paul conveniently skips over it in his discussion of Hamdi, the Supreme Court explicitly suggested that “an appropriately authorized and properly constituted military tribunal” would be sufficient protection for an American citizen detained as an enemy combatant. The majority opinion elaborated that “military regulations already provide for such process.” The process has only gotten better for combatants in the ensuing seven years — as have their appellate rights.

Senator Paul concludes with a self-flattering portrait, pitting his sage worldliness against the naïveté of “some conservatives [who] . . . trust the government to always do the right thing.” As it happens, much of my column concerned the government’s failure to do the right things in the War on Terror — particularly by pursuing the Islamic-democracy project and spending recklessly without improving our security, matters on which Senator Paul and I agree. Yet, the senator endeavors to board me onto this ship of conservative fools anyway. Just as he mines court rulings for a sentence here or there that, out of context, seems to help him, he quotes me as averring that wartime presidents are “highly unlikely to abuse” the power to detain American citizen combatants. For so saying, I am again said to compare unfavorably against what the senator sees as his authentic conservative temperament. Only he, it seems, is wise enough to see what Madison saw in observing that “since governments are not constituted of angels, we must take care to restrain government with specific rules of conduct.”

Lo and behold, if you read what I actually said instead of Senator Paul’s misconstruing of it, you find that my conclusion about presidents’ being “highly unlikely to abuse” detention authority is not rooted in anything so dreamy as their transformation into cherubs-in-chief. It reflects, instead, the Madisonian assessment that unlike angels, presidents are humans inclined to act in their self-interest. They won’t abuse detention power, I opined, because to do so would violate the oath of office; would result in ruinous political damage, compromising their ability to govern; and would be futile because the courts would vacate the combatant designation — precisely because, owing to legislation and court decisions, “specific rules” of the type Madison conjured now restrain executive power over enemy combatants.

If Senator Paul, constitutional conservative, wanted a truly relevant Madison quote, he might have considered Federalist 41: “If a federal Constitution could chain the ambition or set bounds to the exertions of all other nations, then indeed might it prudently chain the discretion of its own government, and set bounds to the exertions for its own safety.”

In the real world, our freedoms are an inheritance unavoidably rooted in the capacity of military force — not legal processes — to overcome hostile foreign powers. We sensibly restrain military action, including the power to detain Americans who abet our foreign enemies, in order to reduce the chance of error and abuse. But we do so mindful of Madison’s brute observation that, in the final analysis, “the means of security can only be regulated by the means and danger of attack” and will “be ever determined by these rules, and by no others.” If civilian due process can be exploited by the enemy as a weapon to frustrate the war effort — something that would have shocked the framers, who gave the courts no oversight role in the nation’s conduct of war — we are not required to abide that situation. We may limit citizen combatants to a reasonable, balanced process — one that gives them adequate protection against arbitrary detention without granting our ruthless enemies the access to intelligence required by civilian trial disclosure rules.

That balance has worked exceedingly well for ten years, affecting fewer than a half-dozen American citizens — all of whom were clearly al-Qaeda operatives. To overturn it based on Senator Paul’s fervid imagination would be the antithesis of constitutional conservatism.

 Andrew C. McCarthy, a senior fellow at the National Review Institute, is the author, most recently, of The Grand Jihad: How Islam and the Left Sabotage America.