Written by Andrew C. McCarthy
The reckless crew is at it again.
Libertarian extremists, who purport to be the face of the tea party movement, and their pals on the Lawyer Left, whose obsession is more rights for mass-murderers, are again making common cause. Their target, once more, is the detention procedure codified in the National Defense Authorization Act (NDAA). This time the ringleaders are Representatives Justin Amash (R., MI) and Adam Smith (D., WA). With a new NDAA up for consideration, these congressmen are reprising the starring role played a few months back by Sen. Rand Paul (R., KY). I argued in opposition to Sen. Paul’s gambit here and here.
Under the Smith-Amash amendment, if al Qaeda were to dispatch the second coming of Mohamed Atta & Co. to execute another 9/11-style atrocity in the United States, but this time the FBI managed to apprehend them, they would be given the full rights of American civilian defendants. They could not be detained under the laws of war, they could not be held at Guantanamo Bay for trial by military commission. Instead, they would be treated like garden variety crooks: given Miranda warnings, quickly assigned counsel, held in a civilian prison, eligible for prompt bail hearings, entitled to the full breadth of discovery mandated by civilian due process, and given a full-blown, Grade-A civilian trial in a civilian federal court – just like the trial the Obama administration tried to give Khalid Sheikh Mohammed and the other surviving 9/11 plotters until public outrage and congressional opposition induced the administration to back down.
Naturally, you won’t be hearing that from the congressmen and their allies – like Rep. Ron Paul, who has come out in support. They know if the wages of their bill were properly understood, they would be swiftly be dismissed, including by most Tea Partiers, who are not anti-government but pro-limited government and thus appreciate that national defense is a paramount federal role.
So instead, the congressmen repeat Sen. Paul’s pitch, claiming to be defending the rights of American citizens. They maintain, as Sen. Paul did, that the 2012 NDAA expanded the powers of the president to designate American citizens as enemy combatants, to have the military round them up, and to lock them up and throw away the key. Their hysteria is amplified by the likes of the John Birch Society’s outlet, The New American, which asserts that, under the NDAA, Americans could “be subject to military tribunals such as the one currently considering the case of the so-called ‘Gitmo Five’” – i.e., the ongoing military prosecution of KSM and his cohorts. Not to be outdone, Rep. Paul chimes in, “I don’t believe a republic can exist if you permit the military to arrest American citizens and put them in secret prisons and be denied a trial.”
It is all abject nonsense. The NDAA did not increase the president’s powers. It merely codified existing constitutional jurisprudence. The Supreme Court has held, repeatedly, that an American citizen who aligns with the enemy in wartime may be treated as the enemy. The president already had the constitutional authority to designate American citizens as enemy combatants, and he would have retained that authority regardless of whether the NDAA had been enacted.
Moreover, the NDAA does not authorize the military to arrest American citizens inside the United States. Instead, it codifies the pre-existing constitutional authority to hold enemy combatants in military detention. Domestic apprehensions are still done by the FBI and other law-enforcement agencies, not the armed forces. This is exactly what happened during the Bush administration when, for example, Jose Padilla – an al Qaeda operative and American citizen – was arrested by the FBI upon entering the U.S. in an effort to carry out a “second wave” of post-9/11 attacks. After the president designated him an enemy combatant, he was transferred to a military brig – not a “secret prison,” but a military base from which, under the watchful eye of civilian courts, he challenged his detention with the assistance of counsel. The armed forces merely held him, they did not participate in his capture. A federal appeals court subsequently affirmed the president’s authority to designate and detain Padilla – years before the NDAA was enacted.
Furthermore, military commission trials, such as the one against KSM and his co-defendants, are authorized not under the NDAA but under the Military Commissions Act (MCA). That legislation expressly provides that only alien enemy combatants may be subjected to military commissions. Under current statutory law (which uses the term “alien unprivileged enemy belligerent), it is not permissible to try American citizens by military commission.
It is true that American citizens may be detained, but – aside from the fact that this was the law before there was an NDAA – it is not true to claim that due process is denied to the handful of Americans who join our jihadist enemies’ war against us. All enemy combatants are entitled to have their detention extensively reviewed in habeas corpus proceedings – just like Padilla. Not only do they get a combatant status review proceeding in the military justice system; they may appeal their designation as enemy combatants in the lower federal courts, the federal appellate courts, and ultimately, the Supreme Court. That is to say, if the government does not satisfy the federal civilian courts that there is an adequate legal justification to hold a person under the laws of war, that person – whether or not a U.S. citizen – may not be detained as an enemy combatant. If the person is an American citizen, he must at that point be charged with a crime in the civilian system or released.
Nor is this a rubber stamp determination. Whether we are talking about the NDAA or any other provision of American law, the president may not capriciously designate just anyone as an enemy combatant. Instead, the designee must fit the definition of an “unlawful enemy combatant” (or “unprivileged enemy belligerent”) prescribed by Congress. Under current law (namely, the 2001 Authorization for the Use of Military Force, complemented by the MCA and the Detainee Treatment Act), one may be designated as an enemy combatant only if he either (a) participated in the 9/11 attacks, or (b) abetted al Qaeda, the Taliban, or their affiliated terrorist groups in their wartime operations against our troops and our country.
That is an extraordinarily narrow window. It is why only four Americans — all of whom were undeniably al Qaeda terrorists — have been designated in the eleven years since 9/11. It is why the vast majority of terrorism cases are still prosecuted in the civilian courts. Even alien terrorists may not be treated as enemy combatants unless they fit Congress’s narrow definition.
It is absurd to argue, as the congressmen do, that the NDAA is a vehicle for presidents to launch banana republic-style prosecutions of their political adversaries. You may notice that many of us who support the NDAA are vigorous opponents of the Obama administration. We applaud the NDAA, and its reaffirmation of a law-of-war approach to al Qaeda, because – in the absence of some better system – it is crucial that the military paradigm remain the foundation of counterterrorism against enemies waging war against our country. The law-enforcement paradigm, in vogue throughout the 1990s, was a national security catastrophe. The military paradigm, which empowers us to detain terrorists indefinitely, to interrogate them without counsel and without the full panorama of civilian due process, saves American lives. It enables us to prevent terrorist attacks from happening – rather than the preferred Clinton/Obama approach of hoping there will be a smattering of surviving jihadists around to indict after American citizens have been killed. Those are the American citizens we’re worried about.
Under the Smith-Amash amendment, we’d be right back to the Nineties. It does not protect American citizens – that is a smokescreen. The Congressmen would require any “person who is detained in the United States, or a territory or possession of the United States” to be transferred into civilian court system for “trial and proceedings [that] shall have all the due process as provided for under the Constitution of the United States.” Most terrorists who infiltrate the United States are not American citizens. If Smith-Amash were enacted, and an alien al Qaeda operative like Mohamed Atta or KSM managed to get here and plot attacks, he would have to be given full civilian due process if arrested. And under Smith-Amash, if the federal courts were to determine that the U.S. naval base at Guantanamo Bay is a “possession of the United States,” all the enemy combatants detained there would have to be transferred into the United States, held in civilian jails, and given full civilian due process.
This is why such Leftist redoubts as Human Rights First are so high on Smith-Amash. These organizations are transnational progressives. Their worldview is post-sovereign. It is of no moment to them whether terrorists are American citizens. They care nothing about citizenship. Their goal is to have all terrorism treated as a civilian law enforcement matter – to eliminate the law-of-war model for counterterrorism. They are using a populist rhetoric about American citizenship to advance this broader project. That is why former attorneys general Ed Meese and Michael Mukasey, in addition to several other staunch conservatives who served in the Reagan and Bush administrations, have written to the House opposing Smith-Amash. It is understandable that many of today’s Democrats support Smith-Amash; the Obama Left shares the goals of groups like Human Rights First. What is alarming is that the Tea Party movement, which supported Rep. Amash’s candidacy in 2010, would allow itself to be used this way. The demagoguery about American citizenship is pretextual. The objective here is to delegitimize military responses to international terrorism and endow terrorists – the vast majority of whom are non-Americans – with greater protection. The Tea Party’s response ought to be an emphatic No
Andrew C. McCarthy is the author of the New York Times bestsellers The Grand Jihad and Willful Blindness. He is a contributing editor at National Review and co-chairs the Center for Law & Counterterrorism at the Foundation for Defense of Democracies. He also writes the Ordered Liberty blog at PJMedia.com.
Follow him on Twitter @AndrewCMcCarthy