Would Mo Atta have been an enemy combatant?
NRO Editors:
Madness.
Justice Robert Jackson, the U.S. attorney general before FDR elevated him to the Supreme Court, famously remarked that the Constitution is not a suicide pact. Today, it’s hard to see why not.
The United States Court of Appeals for the Fourth Circuit ruled on Monday that Ali Saleh Kalah al-Marri — an alien al Qaeda operative from Qatar, sent to the United States the day before 9/11 to conduct follow-up attacks and explore the potential for electronic disruptions of our reeling nation’s financial system — may not lawfully be detained as an enemy combatant in the war on terror.
According to the court, we have two options: Release al-Marri and thus enable him to rejoin the jihad; or try him in the civilian criminal-justice system, where he’d be entitled to — and able to share with his confederates — the fruits of discovery from U.S. intelligence files detailing the enemy’s capabilities and plans.
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The wartime use of force obviously includes the detention of enemy combatants, as the Supreme Court found in its 2004 Hamdi decision. Such detentions are sanctioned by laws of war older than the United States, customs that permit the detention of enemy operatives for the collection of intelligence and depletion of enemy assets. These are standards designed to end wars justly, humanely, and more promptly.
As a member of an al Qaeda sleeper cell, al-Marri was just such an enemy combatant, the commander-in-chief had found. Though lawfully in the United States on a student visa, he was in communication with 9/11 mastermind Khalid Sheikh Mohammed, among others.
Since al-Marri’s efforts were acts of war rather than mere crimes, President Bush ordered him held as an alien unlawful enemy combatant. But now the Fourth Circuit has substituted the commander-in-chief’s wartime judgment with its own. Two judges — Diana Gribbon Motz, a Clinton appointee, and Roger Gregory, an unsuccessful Clinton appointee renominated by President Bush in a good-will gesture to Democrats — ordered that al-Marri be released or referred to the civilian-justice system for a full-fledged criminal trial.
Astoundingly, Justices Motz and Gregory did not doubt that al-Marri was just as dangerous as the administration claims him to be. Instead, they found that because al Qaeda is not a traditional national enemy, its operatives — stationed here in the United States to kill Americans — are mere civilians, not combatants.
By their lights, even 9/11 ringleader Mohamed Atta wasn’t a combatant. Despite his enlistment in an organization waging war on America that had trained him and sent him here, he was just a civilian.
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If he had been caught as he tried to get on the plane what would he have been charged with under this ruling? After being read his Miranda rights and having an attorney appointed how much intelligence would he have provided us about the rest of the plot? It takes just a couple of sentences and common sense to see how wrong this opinion is, but Andrew McCarthy has more on the lawfare mindset of the liberals who wrote this opinion. The Clinton judges wanting to go back to the failed policies of the past are putting this country at risk.
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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.
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... 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.
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You can just see the liberals saying that is a problem but it is not one we can do anything about. Better that terrorist go free than they be held at Gitmo. Then they would start trying to avoid responsibility for their irresponsible act by blaming everything on the Bush administration for bringing them there to begin with and not reading them their Miranda rights on the battlefield.
POSTED BY MERV
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