Gitmo Waltz

The Obama Justice Department is dancing around the words “enemy combatants.”

By Andrew C. McCarthy
Tuesday, March 17, 2009

International terrorists waging war against the United States cannot be treated as if they were ordinary defendants. Those who say otherwise, and who would treat terrorist operatives as if they were mere civilians, are trying to impose on the United States the standards of foolhardy treaties that the United States has never ratified — precisely because accepting such standards “would improperly reward an enemy that violates the laws of war by operating as a loose network and camouflaging its forces as civilians.”

To protect national security, the president must have the authority to detain anyone who, in his judgment, is helping the enemy. And anyone means anyone: It matters not if such suspects “have not actually committed or attempted to commit any act of depredation or entered the theatre or zone of active military operations.” If the president’s unilateral authority to detain were “limited to persons captured on the battlefields of Afghanistan,” this would “unduly hinder both the President’s ability to protect our country from future acts of terrorism and his ability to gather vital intelligence regarding the capability, operations, and intentions of this elusive and cunning adversary.”

You’re probably thinking the quotes above reflect the world according to Dick Cheney, David Addington, John Yoo, or some similar Bush-era incubus. In fact, they describe — with words drawn directly from Eric Holder’s Justice Department — the Obama administration’s official guidance on enemy combatants. The Obama administration won’t lower itself to call these terrorist captives “enemy combatants,” notwithstanding that they are part of the “enemy” the administration concedes is conducting “battle” against us in the “war” he admits we are in.

The guidance, made public last Friday in a DOJ submission in federal district court, marks quite a turnabout for the president and his attorney general. During last year’s campaign, Obama was sharply dismissive of the Bush policy of detaining enemy com — er, whatever you call ’em, without trial.

He argued that, back in the Clinton days, we’d been able to arrest the terrorists, “put them on trial” in civilian courts, and strand them “in U.S. prisons, incapacitated.” In fact, this wasn’t even true with respect to the single atrocity he mentioned, the 1993 World Trade Center bombing (in which several of those complicit were not apprehended), much less with such fugitive “defendants” as Osama bin Laden — who has been at large for nearly eleven years (and thousands of casualties) since his indictment in June 1998. No matter. During the campaign, Obama said the Bush approach — i.e., the approach Obama now has adopted as president — had “destroyed our credibility when it comes to rule of law all around the world, and given a huge boost to terrorist recruitment in countries that say, ‘Look, this is how the United States treats Muslims.’”

Ditto Holder, whose law firm, like several of his new recruits at the Justice Department, proudly acclaims its voluntary contribution of millions of dollars’ worth of legal services for the Gitmo detainees — legal services that consist primarily of demanding that the courts “improperly reward” the prisoners with the rights of civilian defendants that Holder now says they mustn’t have.

It seems like only yesterday that Holder, sounding like a Gitmo barrister in good standing, was ripping the Bush administration for “den[ying] the writ of habeas corpus to hundreds of accused enemy combatants.” Indefinite detention, said he, was only one of many “needlessly abusive and unlawful practices” Bush had ordered after 9/11 — practices Holder has suddenly seen the wisdom of, even though he once was quite certain that such “procedures . . . violate both international law and the United States Constitution,” in addition to having “diminished our standing in the world community” and having “made us less, rather than more, safe.”

It’s a funny thing that Holder should have mentioned international law and the U.S. Constitution. His new guidance places enormous emphasis on the former but — ostensibly — none on the latter. That, beyond banning the term (but not the reality of) “enemy combatants,” is the sop that is supposed to satisfy the administration’s hard Left base. Obama is implementing exactly the same policy as Bush but purporting to walk away from his predecessor’s reliance on the president’s inherent commander-in-chief powers. Article II — the constitutional provision through which Bush was alleged to be shredding the Constitution — is reduced to irrelevancy according to the new guidance because (a) detention power flows from Congress, which enacted a sweeping authorization for the use of military force (AUMF) immediately after the 9/11 attacks, and (b) resort to that power to detain non-state actors turns out to be fully consistent with the international law Holder until recently said we were violating.

This is all strikingly disingenuous. And for the Justice Department — which always takes pains to deal thoughtfully with contradictions and opposing arguments when it is practicing law rather than politics — the guidance is, in spots, an uncharacteristically shoddy piece of work.

Say this much about Messrs. Cheney, Addington, and Yoo: Whether you agree with their muscular take on executive power (I happen to agree with it), it was at least a cogent view, no matter how frightening it may have seemed to international-law professors. They were saying that the Constitution gives the president power to protect the nation from external threats to national security, and that the courts have no power to second-guess the president in this realm.

By contrast, Obama says he doesn’t need Article II; he can live within the AUMF and international law, which, he says, limit him to detaining only those who have provided substantial support to al-Qaeda, the Taliban, and their associated forces. Fine, but what does “substantial” mean, and who are these “associated forces”? Obama won’t tell you. Those definitions may vary from “case to case,” says the guidance, such that “the contours of ‘substantial support’ and ‘associated forces’ bases of detention will need to be further developed in their application to concrete facts in individual cases.”

At first you may think, “That sounds reasonable. After all, who can really predict the future?” But then read DOJ’s next sentence: “This position is limited to the authority upon which the Government is relying to detain the persons now being held at Guantanamo Bay.” Turns out it’s not about the future at all. It’s about the people about whom we’ve had the better part of eight years to develop a position on what “substantial” assistance is and which “associated forces” are eligible for indefinite detention.

Obama doesn’t want to say he is relying on Article II — even though DOJ’s new guidance derives prominent support from Ex Parte Quirin, the World War II case in which, as the Bush administration frequently observed, the Supreme Court upheld FDR’s unilateral authority to detain, try by military commission, and execute enemy combatants — including U.S. citizens — who were captured far from any combat zone. But when it comes to explaining whom he might detain, Obama is reserving to himself the right to make it up as he goes along. Not because Article II says so, but because he says so.

Meanwhile, on the detention of non-state actors under international law, much of what Holder’s DOJ says could have been written — indeed, was at times written — by the Bush administration. This includes a remarkable footnote which explains that courts are required to “defer to the President’s judgment” regarding what privileges alien terrorists (“irregular forces”) enjoy under international law. In addition, the Obama administration now asserts that terrorists really do fall into that “legal black hole” Obama and Holder’s old friends in the Gitmo bar have been railing about for years: They are not entitled to the Geneva Convention protections for either prisoners-of-war or civilians.

Nevertheless, because Justice has forsworn, for political reasons, reliance on Article II (and thus betrayed its obligation to make valid — in fact, dispositive — arguments that preserve crucial executive-branch powers), it stoops to basing its contentions in such sources as the U.N. charter. Down the road, this could damage American interests. The charter says the right of self-defense attaches only after an attack has occurred. If we are targeted for an imminent attack, are we supposed to endure a mass-murder strike before taking military action? Under Article II, of course not — but under the U.N. charter, that’s not so clear.

Furthermore, though the guidance collects international-law authority for the proposition that non-state actors may be attacked and detained just like state actors, it does not deal with recent precedents that run in the other direction. For example, in the 2004 case involving the border fence Israel constructed to stop terrorist attacks, the International Court of Justice held 14-1 (with only the U.S. judge dissenting) that Palestinian terrorists had to be considered civilians, not enemy operatives, because the Palestinian territories are not a state. Similarly, in the 2008 Boumediene decision, the Supreme Court reasoned that al-Qaeda was entitled to at least some of the protections of Geneva’s Common Article 3. In its own clear terms, CA3 does not apply in international conflicts, but the five majority justices said that because al-Qaeda is not a nation it cannot be involved in an international conflict — no matter how many continents it operates upon.

What renders irrelevant such inappropriate and dangerous judicial intrusions into national security is the commander-in-chief’s constitutional power. It is what allows the president, in good conscience, to continue taking actions necessary to defend the country even if he believes the courts may disagree — these are decisions committed to him, not the judiciary, by the Constitution. Obama, instead, is rolling the dice that an American president can submit to the authority of foreign, international, and American courts while maintaining national security.

Evidently, he’s confident he can control what the courts will do. I wouldn’t be so sure.