Verbosities

I've had this Andrew McCarthy (not that Andrew McCarthy) op-ed from The National Review open in my browser all morning, and every time I try to understand his broader points, a little piece of my soul dies inside. I am not a lawyer, and I'm strictly amateur when it comes to dissecting circuit court opinions, but I think I know what McCarthy is lamenting here - and I couldn't disagree more:


Andrew C. McCarthy on Enemy Combatants & Ali Saleh Kalah al-Marri on National Review Online

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.

Just looking at the language in play in that last paragraph, the enemy of the American people is America's courts, who choose the benefit of an alien over the benefit of all people. That's a pleasant way to start your polemic, isn't it? Why is the Right so quick to blame America? McCarthy also sets up the assertion that the President, by virtue of his constitutional powers, the AUMF granted by congress, and the fact that he's the only nationally elected figure, must be given clear egress into whatever territory he feels best when prosecuting his war.

This case revolves around this guy:

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.

Of course he didn't rebut it. The entire case is built around arguing the rights due to a so-called "enemy combatant" pulled off the streets of the US. Whether or not you believe the guy is potentially dangerous is irrelevant to the idea of due process and habeus corpus. Can and should the government declare someone an "enemy combatant," a title for which there is no due process or oversight, and throw them in prison indefinitely without charging them with a crime? That's what's at the heart of this matter.

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.

Take off your partisan glasses for a second and understand this fundamental point: no one on the Left is sympathetic to those that would cause us harm. Personally, I don't have enough information to say, "He's a bad guy," or "He's not a bad guy," (and neither do you, most likely) so I'll keep that much out of it. What I do believe is this: if our government had proof he was a truly bad guy, charge him with conspiracy, throw him in a cell, throw away the key. If our government didn't have proof, deport him. Send him back home and keep an eye on him. What is fundamental to our society, however, is the due process of challenging our imprisonment. This is what separates us from a fascist dictatorship.

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...

al-Marri was here with clean paperwork. He didn't ride over in a cargo container as a sleeper agent under cover of night. He was here legally, walking our streets. The immigration reform a scenario like this (if the allegations against him are more true than false) suggests are mind-boggling, but beyond the point. Can and should the government yank a legal immigrant or a citizen off the streets and throw them in jail?

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...

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.

I love that last paragraph. If a Clinton appointee does something, it's illegitimate "judicial activism." Beautiful.

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.

No, that's a specious connection at best. The court was interceding on behalf of a legal immigrant. That the legal immigrant was an (alleged) al Qaeda "combatant" isn't relevant to the decision.

UPDATE - That's what happens when you're trying to make your 1PM meeting and get this done at the same time. It is a relevant point that he is challenging his detention, and it is a relevant point to that detention (as the Patriot Act will show) that he's a "declared enemy combatant" ("But was he a declared enemy combatant under the IIPA?!?! Why hasn't anyone from the CIA said this out loud?!?!" - er, sorry. Having Scooter flashbacks.). It's not that the courts are choosing to advocate specifically for al Qaeda, which is what the author is half-insinuating here. It's whether there should be legal standing for legal citizens who are enemy combatants. That's what I meant.

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.

Gasp! Just you wait! Even those filthy undeserving migrant workers will be demanding we don't throw them in jail without charging them with a crime! The nerve of these aliens! Jumping ahead:

(T)he 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.

I haven't read the decision yet, but will do so later. Glenn Greenwald puts this idea in perspective. He states that the Patriot Act provides "a very clear legal framework for the detention of suspected terrorists inside the U.S. -- namely, it allows temporary detention but requires due process be accorded to the accused suspect." In other words, the court didn't just invent this idea of due process for so-called "enemy combatants" out of whole cloth. They had a law to work with. Quoting from the decision Greenwald does:

But no provision of the Patriot Act allows for unlimited indefinite detention (of enemy combatants)

McCarthy blames this on a pre-9/11 mentality, and asserts that the Article II powers of the President (i.e., the unitary "commander-in-chief") should not be limited:

(Asserting a "terrorist" has rights to be tried in civilian courts) is simply a preposterous assessment of our present threat conditions, to say nothing of the law. To being 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.

I'm enjoying how he invokes FISA here, which is the same court the president commander-in-chief circumvented for the NSA program mentioned above.

Oh, and a court already struck down the warrantless wiretapping too, lest we forget. One of my favorite quotes from the Hon. Anna Diggs Taylor:

"We must first note that the Office of the Chief Executive has itself been created, with its powers, by the Constitution. There are no hereditary Kings in America and no power not created by the Constitution. So all "inherent power" must derive from that Constitution."

Anyway...

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.

More beautiful logic here. They're "walking battlefields," and we need the flexibility to use our military on legal residents of the United States whenever the hell we think we've found a "terrorist." Funny, but I'd think if the CIA or FBI or Topeka Sherrif's Office knew about something insidious going down, they'd have little to no problem getting that warrant they need to bust down the door and perp walk a bunch of legal residents down to the station.

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.

The Patriot Act gives you (essentially) 187 days to charge someone incarcerated in this manner. Then, even if you have to gin up fake charges, from the day you arraign the guy you could probably have another six months or so to get the info you need. If you can't get the intelligence you need in a year's time, then you're obviously not doing something right.

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.

Change the law if you don't like it, but let's try to do this with the transparent debate we need. Civil liberties are the crucial linchpin that separates our society from fascist dictatorships. When our underlying right to be accused by our jailer is broken for some, it's a slippery slope that leads the rest of us to worry about our own freedoms.

How about instead of showing the world our biceps during the day while we hide under our blankets and quiver in fear at night, we let everyone know what it is that we stand for - and then do our best to back that up without letting the spectre of terrorism tarnish everything that's good about our society.

Charge the guy or deport him. If he's as bad as you say he is, surely you have evidence to back that up.

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