Comforting the Enemy
The Second Circuit seeks to bar the president from detaining enemy combatants.
By Andrew C. McCarthy
If you were under the impression that the 9/11 atrocities marked the long-overdue end of a suicidal government philosophy that terrorists and bombs should be fought with indictments and trials instead of missiles in the air and boots on the ground, guess again. A number of our esteemed federal judges did not get the memo. And having been such a ringing success at running prisons, schools, and housing developments, they've now decided to give micromanaging the prosecution of war a try.
Such is the unmistakable message of Thursday's decision by a divided panel of the U.S. Court of Appeals for the Second Circuit in New York in the case of Jose Padilla (a.k.a. "Abdullah al Muhajir"), alleged to be an al Qaeda-trained dirty bomber. Despite the existence of very active military hostilities against an international terror network that has already executed domestic mass murder, the two-judge majority held that the president, the commander in chief responsible for conducting the war, is without authority to detain as an unlawful combatant an operative he found to have been dispatched by the terror network to carry out further slaughter, including the detonation of a radiological weapon of mass destruction. Padilla must instead, according to Circuit Judges Rosemary S. Pooler and Barrington D. Parker Jr., be charged and tried in a civilian court, where he would be entitled to the panoply of rights accorded criminal defendants — including, of course, massive amounts of discovery regarding what we know about his al Qaeda activities and how we know it.
Padilla, an American citizen and multiple prior felon with a juvenile murder conviction on his résumé, moved to Egypt and adopted militant Islam after being released from prison following a 1991 Florida weapons conviction. According to information proffered by the government to the federal district court, he traveled through the Middle East, eventually teaming up with al Qaeda in Afghanistan. In 2001 — long after bin Laden had already declared war against the United States, simultaneously bombed our embassies in Kenya and Tanzania (killing well over 200), and attacked the U.S.S. Cole in Yemen (killing 17 of our military personnel) — Padilla is said to have proposed to one of bin Laden's most intimate aides, the infamous Abu Zubaydeh, a plan to steal radioactive material within the United States in order to build a dirty bomb (or "radiological dispersal device"). Al Qaeda made available a safe house in Lahore, Pakistan, for research on the project, provided Padilla with the necessary training for this and other terror operations, and then dispatched him to the United States to make mayhem.
Fortunately, the government managed to develop enough evidence to detain him on a material-witness arrest warrant once he landed in Chicago, from Pakistan, on May 8, 2002. Then, as now, Americans were engaged in robust fighting against al Qaeda in Afghanistan and elsewhere; then as now, al Qaeda was promising new attacks against the United States and its allies. And while, thanks to the president's steely determination to take a military war to a military enemy, the terror network has not succeeded in reprising September 11 here at home, it has continued to conduct murderous bombing operations in Tunisia, Kenya, Indonesia, Morocco, Saudi Arabia, Turkey, and Iraq.
There being a war against al Qaeda, and Padilla being an al Qaeda operative sent here to conduct attacks, the president made the eminently sensible decision to declare Padilla an enemy combatant and to have the Defense Department detain him. The authority under the laws of war to detain enemy combatants for the duration of hostilities has a rich pedigree. The logic, as explicitly recognized by the Geneva Conventions in 1949, is "to prevent military personnel from taking up arms once again against the captive state."
Under the Hague Convention of 1910, enemy combatants may be lawful or unlawful, based on whether they are subject to a formal chain of command, wear uniforms, carry their weapons openly, and conduct their operations in accordance with the laws and customs of war. Obviously, those who serve al Qaeda, a non-sovereign, multinational terrorist organization that clandestinely designs and executes indiscriminate mass homicide, are unlawful combatants.
While lawful combatants generally must be released at the cessation of hostilities unless some egregious conduct has rendered them triable as war criminals, unlawful combatants have no such right. It was once common for them to be executed summarily, although as Chief U.S. District Judge Michael B. Mukasey observed earlier in the litigation, "such Draconian measures have not prevailed in modern times in what some still refer to without embarrassment as the civilized world." Instead, it has long been established, as the Supreme Court recognized in its 1942 decision in Ex Parte Quirin, that unlawful combatants may be tried by military tribunals — even when civilian courts are available.
Faithful to these principles, District Judge Mukasey, deservedly among the most well-respected jurists in America and nonpareil in matters of national security, upheld President Bush's decision in a thoughtful, painstaking 102-page opinion. The dissenting third member of the Second Circuit's Padilla panel, Judge Richard C. Wesley, would have adopted the district court's ruling in all respects. Nevertheless, the panel majority reversed in a nettlesome opinion that both turns its back on settled law and displays a startling insouciance about the reality on the ground.
To arrive at their conclusion, Judges Pooler and Parker first had to tiptoe around about 150 years of jurisprudence, beginning with the Prize Cases of 1862 (arising out of President Lincoln's Civil War blockade of secessionist states), which holds that the president is not merely fully vested by Article II of the Constitution, but in fact obligated, to resist by all appropriate measures, including the use of force, a forcible attack against the United States. Similarly, the majority needed to end-around the commonsense separation of powers doctrine that it is for the president, not federal judges, to determine what measures are necessary to protect the country in time of war.
The majority paid lip service to these principles, but undermined them nonetheless by a demonstrably specious distinction: viz., whether the president's responsive measures are employed against "the outside world" or "turned inward" to United States territory. This notion the majority augmented with a loopy "zone of combat" theory — hypothesizing that even if the president can turn his powers war inward, he can only do so in a zone of active combat. The majority did not explain what "zone of combat" is, and who gets to decide whether there is one; they simply insisted that, wherever it was, Padilla was not in it.
Leaving aside al Qaeda's palpable success in fighting the war right in the heart of New York City — indeed, the chasm that was once the World Trade Center can be seen from the windows of the courthouse where the Second Circuit sits — the majority found this alleged distinction by mining language from a concurring opinion in the steel-seizure case (in which the Supreme Court undid President Truman's appropriation of American steel mills during the Korean War). Of course, that case had nothing to do with enemy combatants or an entity in hostilities with — and directing military operations inside — the United States.
A case that did deal directly with that situation was the aforementioned Quirin. There, Nazi operatives, including one who claimed to be an American citizen, stole into the United States by ship, shed their uniforms upon hitting the shore, and spread out to conduct sabotage operations against war industries and facilities. They, like Padilla (an American citizen), were captured before they could execute their designs. Importantly unlike Padilla, who at the moment is merely being detained, they were both detained and subjected to military tribunals. When they challenged that treatment, the Supreme Court ruled that, regardless of citizenship, persons who aligned themselves with an enemy and sought covertly to harm the United States in our territory while hostilities were ongoing could be declared unlawful combatants and subjected to military tribunals.
Recognizing that the Supreme Court's decisions are binding on lower federal courts, Judge Mukasey logically reasoned that if the Supreme Court had found prosecution by military tribunal (which could carry the death penalty) permissible, then mere detention must a fortiori be authorized for Padilla. The Second Circuit majority, however, contorted itself to draw a contrary conclusion.
First, the panel majority misleadingly suggested that Quirin was distinguishable because in World War II Congress had expressly authorized military tribunals. But Padilla's case is about detention, not military tribunals (at least not yet); and, more to the point, the Quirin Court expressly relied not only on the congressional grant of authority but also the president's independent constitutional authority as commander in chief under Article II. Second, the majority noted that the Quirin defendants had acknowledged their status as Nazi agents while Padilla "from all indications, intends to dispute his designation as an enemy combatant" — a bizarre point since it would hinge the propriety of presidential action to protect a nation at war on the subjective assertions of terrorists regarding whether they were really unlawful combatants. (One could strongly disagree with, but understand, a court saying that it, rather than the president, had the final word on who could be considered an enemy combatant; the thought of leaving the matter up to the terrorists themselves, however, is breathtaking.)
Third, and most plausibly, the majority noted that when Quirin was decided, an important statute, Section 4001(a) of Title 18, United States Code, had not yet been enacted. Section 4001(a) states that "[n]o citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress." This provision clearly spells trouble for the argument — advanced by the government — that the president still retains plenary constitutional authority to detain unlawful combatants. Such a contention would call for either holding Section 4001(a) unconstitutional (as an improper legislative infringement on the president's Article II authority as commander-in-chief) — something courts should do only as a last, unavoidable resort — or for finding a fairly straightforward statute somehow ambiguous and inapplicable.
Nonetheless, as the district court had wisely found, there was no need in Padilla's case to go down either of these unsavory paths because an Act of Congress authorizing Padilla's detention was ready to hand. Specifically, one week after the September 11 attacks, Congress passed a joint resolution, broadly authorizing the president to "use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons."
District Judge Mukasey had found that Padilla easily fell within the ambit of the joint resolution. Palpably, al Qaeda carried out the September 11 attacks, Padilla is alleged to be an al Qaeda operative who trained with the organization, and he was sent here precisely to commit "future acts of international terrorism against the United States." Remarkably, however, the Second Circuit majority quibbled that the resolution permitting "all necessary and appropriate force" (emphasis added) — which obviously includes killing enemy operatives — "contains no language authorizing detention." That should be interesting to try to apply in the field: You can shoot 'em but make sure you don't hold 'em.
The majority airily puttered that it was required under the circumstances to carve out for Padilla a lacuna in the sweep of the joint resolution because the Constitution enshrines civil rights just as it does the enumerated powers of government. Forgetting for the moment that we are in a war with soldiers and civilians being murdered, and even ignoring the dispositive rationale of Quirin that withers such high-minded ephemera, the majority's reasoning here cannot even withstand the steel seizure opinion it purports to regard as its analytical guide. There, as Judge Wesley pointedly noted in his Padilla dissent, the Supreme Court asserted: "When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate." In such instances — as here, where President Bush prosecutes a war with the unambiguous and sweeping support of a legislative enactment — the civil rights of would-be dirty-bombers must take a back seat.
Concerns about detention of enemy combatants are not persuasive, but neither are they frivolous. There is no end in sight for the war on terror, which means there is in theory no set end date for release of al Qaeda fighters from detention — just as the American people have no set end date when their anxiety over the possibility of another September 11 might ebb. But there is no justification at this point to inflate the dimensions of Padilla's plight. We are not in a mere technical state of war; we are in a real, live shooting war. There is no rational fear here that the president is rounding up political enemies or suspect ethnic classes under the cover of phony hostilities; there are exceedingly few persons being held as unlawful combatants, and there is a reasoned basis for each of those detentions — indeed, even the Second Circuit majority conceded that Padilla appeared to be a national security threat.
While it is, moreover, a foreign concept to many federal judges today, it bears noting that the president is a coordinate constitutional actor, of equal status to the judicial branch. He takes an oath to uphold the Constitution just like judges do. Given that prosecution of war is uniquely a presidential prerogative, why should anyone have more faith in the courts than the president to decide who the combatants are and what must be done to neutralize them?
The Second Circuit's decision would do immeasurable damage to the prosecution of the war on terror — undermining those who are fighting it, clothing terrorists actively abetting al Qaeda in the rights of common criminal defendants, and forcing the government to reveal sensitive information to those terrorists in civilian criminal proceedings at the very time that information is most needed to defeat the enemy and protect national security. The government has the option of seeking review from the entire Second Circuit (i.e., all thirteen judges) or proceeding directly to the Supreme Court. It must do so with all appropriate speed.
— Andrew C. McCarthy, a former federal prosecutor who led the 1995 terrorism case against Sheik Omar Abdel Rahman, is a consultant at the Investigative Project in Washington. |
