Wednesday, June 13, 2007


Law at War

The National Review offers two stinging rebukes of the Fourth Circuit decision in the enemy combatant case: one from the NRO Editors, another by Andrew McCarthy.

No surprise that everybody at NRO, a media organization that considers the war waged against us [not to be called the Global War on Terror] with some seriousness, express alarm and outrage at the decision. Note the references to September 10th thinking, and how obvious enemy foes such as Mohammad Atta would warrant full constitutional and legal protections under the logic of this poorly reasoned decision.

Here’s McCarthy’s summary:

The Supreme Court has previously held that alien combatants may be detained for the duration of hostilities even if they are American citizens. The panel majority did not dispute this, nor did it doubt that al-Marri is a trained terrorist — schooled during the late 1990s in al Qaeda’s paramilitary camps — who was in the United States to do us great harm. Rather, it sought to distinguish those precedents as limited to situations in which combatants are either apprehended on a conventional battlefield or working for a conventional enemy.
That is, the 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.
That 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.
Moreover, the most dangerous operatives of al Qaeda — which continues to attempt a reprise of 9/11 — are patently those planted inside the United States. Without them, a 9/11 can’t happen. And it is worth noting that, under the reasoning of this decision, Mohamed Atta would have to have been given a full-blown trial in the civilian justice system, or released, if he had been apprehended before boarding a plane on 9/11.

However we may view this ruling, there’s no doubt the terrorists will celebrate it. By intentionally targeting and killing civilians, by violating every known law of war, by hiding their combatant identities, by conducting acts of sabotage and terror, any state sponsored terrorist, terror proxy, or terror entrepreneur can avoid the harsh treatment and military response they so rightfully deserve, and earn instead limitless legal protections.

If today’s jurists had been around in World War Two, we’d have had to sue for peace, if not from Hitler, than from our own legal system. That’s how insane this ruling is, just from a non-legal perspective. That the two judicial goons responsible for the ruling also grossly distort and misread the law and precedent upon which they base their decision is even more outrageous.

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