Not Unlawful, Not an Enemy Combatant

Senator Graham prepares to set the law of war on its head.

Andrew C. McCarthy
Tuesday, April 05, 2011

Is there a limit to the damage this government is willing to do to American credibility and security in its sudden haste to rid the world of Moammar Qaddafi — known until recently as a valuable new American ally? Here’s the latest: Sen. Lindsey Graham is ready to make a mockery of what’s been the legal foundation of our counterterrorism agenda since the Bush administration: the concept of “unlawful enemy combatant.” That is the basis, under the law of war, on which we detain terrorists like Khalid Sheikh Mohammed without trial, in order to prevent them from slaughtering more Americans, as well as authorize military-commission trials against those terrorists for war crimes against the United States. There are many good reasons to do this, one of which is the fact that under this process we don’t have to vest them with all the rights of American citizens and surrender to them the intelligence trove that would be made available under civilian due-process rules.

Senator Graham was interviewed by CNN’s Wolf Blitzer on Wednesday. He repeated the now-familiar interventionist creed: Qaddafi is an incorrigible terrorist enemy of the United States, has been for 40 years, and therefore he must be removed by force — by U.S. force — regardless of the fact that he has neither attacked nor threatened to attack the United States, that Congress has not authorized war against him, and that we have great reason to surmise that his regime would be replaced by Islamists who would pose an actual threat to Americans. Graham bewailed President Obama’s failure to be clear on the objective of regime change and his lack of resolve to jump unambiguously onto the side of the “rebels” — Obama prefers the camouflage of a humanitarian mission to protect civilians, even though, as Blitzer pointed out, he has dispatched covert intelligence operatives to help Qaddafi’s opposition (despite telling the American people there would be no U.S. “boots on the ground”).

Toward the end of the interview, Blitzer asked the natural question: Since we have these U.S. operatives on the ground, couldn’t we just have them kill or capture Qaddafi? Is that something President Obama could authorize?

Graham acknowledged that this was “a good question.” He is more right about that than he seems to realize. There is an executive order still in place that prohibits assassinations of foreign officials — that, indeed, is why, when our forces attacked Qaddafi’s compound during the Reagan administration, commanders stressed that they were targeting command-and-control assets, not targeting Qaddafi personally.

Yes, it’s only an executive order, which means President Obama could rescind it. But no one — least of all Senator Graham — is suggesting such a politically fraught course. A big part of the order’s rationale is to discourage hostile foreigners from assassination attempts against top American officials, including presidents. No one wants to appear cavalier about that possibility.

Thus the quandary: If Qaddafi is a head of state, and you have no intention of repealing the proscription against assassinating heads of state, does that mean we can’t have the CIA rub out the dictator? Not at all, contends Graham in his clever-lawyer persona. Abracadabra, President Obama could just wave his magic wand (or is it a scepter?) and unilaterally declare Qaddafi an unlawful enemy combatant. That way, see, he’d no longer be a chief of state.

Evidently, it’s not a problem that most of the “international community” still recognizes Qaddafi as head of state, while our own government has thus far declined to recognize the rebels — the Libyan mujahideen — as the legitimate government. The senator figures, with this hocus-pocus, we could kill Qaddafi just like we’d kill any other terrorist in the War On Terror.

This is just jaw-dropping coming from Senator Graham. Remember his pontifications during the debates about interrogations and other detainee policy? According to the senator, even though al-Qaeda terrorists are not entitled to the protections of the Geneva Conventions, failing to afford them similar legal protections would be unconscionable. It would endanger our troops in this and future wars, he said. That al-Qaeda tortures and kills its prisoners regardless of how we comport ourselves made no difference. Nor did it matter that how the U.S. treats a terrorist organization has no legal bearing on any future conflict between the U.S. and another Geneva Convention nation-state. Graham declaimed that this was about our values, about what kind of people we are, our regard for the rule of law, etc. Respecting the supposed rights of our enemies was more important than collecting life-saving intelligence . . . but it’s apparently not more important than killing Qaddafi.

Isn’t that a bit bizarre? As with most American politicians, it is difficult to find any objection by Senator Graham to the U.S. policy, in seven-plus years from late 2003 until the start of Libya’s civil war a few weeks ago, of regarding Qaddafi as an American ally. Perhaps I’ll be corrected, but I don’t find any indication that Senator Graham voted against the foreign aid to Libya sought by the Bush State Department. I can’t find him piping up to protest President Bush’s appalling decision to pay Qaddafi reparations for damages sustained in President Reagan’s missile strikes on Tripoli — an attack in retaliation for Libya’s terrorist bombing that killed U.S. soldiers in Germany. I’ve failed to find any Graham condemnation of President Obama’s equally appalling decisions to increase the amount of American taxpayer dollars poured into Qaddafi’s armed forces and into foundations run by Qaddafi’s children (including his son Saif — the guy who has now promised Libyan streets flowing with “rivers of blood”).

The Obama proposal to increase funding for Libya’s armed forces — the ones we are now shooting at, because they have predictably been used against regime opponents — happened only a few weeks ago. And everyone knew at the time that Qaddafi was a prodigious human-rights violator. So in the blink of an eye, with no intervening threat to our country and no vital U.S. interest at stake, Washington goes from making laws that lined Qaddafi’s pockets to breaking laws so Qaddafi can be killed?

Senator Graham was a key player in the enactment of the Military Commissions Act (MCA). You may recall that a salient attack by the Obama Left on Bush counterterrorism was that the label “unlawful enemy combatant” was hopelessly elastic and, thus, arbitrary. The Bush administration, they argued, was capriciously — and often incoherently — selecting which alleged terrorists were detained indefinitely as war prisoners and which were indicted as civilian defendants. Especially sensitive to such criticism (which was amplified by the Bush-bashing media), Graham and his co-authors took pains, in the very first MCA provision, to define precisely what an “unlawful enemy combatant” is and to distinguish such militants from “lawful enemy combatants.” And guess what? Under Graham’s own handiwork, Qaddafi is undeniably a lawful combatant — to the extent he can be seen as a combatant at all.

We have to add “to the extent he can be seen as a combatant at all” for a crucially important reason: The only relevant combatants under our law are our enemies. To be an enemy combatant under American law, a person has to be fighting against the United States. That he is somebody’s enemy does not make him our enemy.

Senator Graham is among the intrepid congressional legions who don’t seem to have a problem with the fact that President Obama has unilaterally embarked on a war against a nation that had not threatened us — that he consulted the U.N., the Arab League, NATO, and seemingly every international cabal under the sun but ignored Congress, the only department of our government constitutionally empowered to declare war. It’s worth pausing over that power.

I have a slight disagreement with my friends Mark Levine and John Yoo over the scope of Congress’s authority — I think it’s broader than they do, that it means a president is supposed to get Congress’s assent under circumstances where our country has not been attacked or threatened. (It’s a “slight” disagreement, because I don’t think there’s a judicial remedy — no matter which of us is technically correct, the bottom line is the same: Any inter-branch dispute over sending our forces into battle has to be worked out politically.)

But here is the point on which there is universal consensus: At a minimum, the power to declare war means Congress has the sole constitutional authority to determine that there is a state of war between the U.S. and another belligerent (usually, another nation-state) and therefore to fix the rights and privileges of combatants under the laws of war. In other words, presidents don’t get to say, “You’re now an enemy combatant, and I’ll decide what rights you get — including whether you live or die.” If the power to declare war means anything, it means that such matters are for Congress to determine.

But now, according to what he told Blitzer, Senator Graham would not only cede to Obama plenary power to start an unprovoked war, he also wants the president empowered to make up the war as he goes along, to change its objectives at will, and to arbitrarily decide who is a combatant and who is not and whether he is comporting himself lawfully or unlawfully. When the law or the purported objectives announced yesterday prove inconvenient tomorrow, the president can just change them. Moreover, the senator would endow our increasingly imperial president with the power to override congressional statutes whenever the president decides wartime imperatives dictate doing so. That, you may recall, is exactly the “blank check” the Left claimed George W. Bush had to be denied with respect to al-Qaeda terrorists who, unlike Qaddafi, were actually trying to kill us for the last several years.

Under the MCA, an “unlawful enemy combatant” is “a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents.” Qaddafi has not even threatened to engage in hostilities against the United States — we attacked him. Further, according to the president, we are not at war with the Libyan regime — we are on a humanitarian mission to protect civilians who might otherwise be mass-murdered in a civil war between the regime and the rebels. The regime and the rebels are combatants as to each other, not as to us. Officially speaking, if I may borrow words the Bush and Obama State Departments have been using for the last seven years, we don’t have any enemies in Libya.

But wait a minute. Senator Graham told CNN that Qaddafi could be deemed an unlawful enemy combatant, a distinction that purportedly clears the way to kill him. As he elaborated, if Obama were suddenly to refuse to recognize Qaddafi as Libya’s ruler (something many in Washington and Europe are urging the president to do), he’d no longer be Libya’s lawful ruler, and therefore, in Graham logic, he’d no longer be a lawful combatant.

Let’s put aside for now the irony that Graham would put Obama — the president who makes a point of apologizing to the world for America’s purported legacy of arrogance — in charge of deciding each country’s legitimate ruler. Graham’s reasoning is hopelessly flawed. To begin with, and to reiterate, no one is a combatant (lawful or unlawful) under U.S. law unless he is our enemy. What makes a combatant lawful or unlawful is his conduct; but what makes him a combatant is his status — and status means he needs to be part of a country or faction that is in a war against us, not in a civil war within his own country.

Quite apart from that, though, the MCA expressly defines a “lawful enemy combatant” to include “a member of a regular armed force who professes allegiance to a government engaged in such hostilities [i.e., against the United States], but not recognized by the United States.” That is to say, a combatant cannot be stripped of his privileges under the laws of war by a facile declaration that we no longer recognize his regime or faction as the legitimate government of his nation.

So, Qaddafi is not an enemy, because neither is he fighting us nor, according to the president, are we fighting him. That means he is not even a combatant as to us. And even vis-à-vis our new friends the rebels, Qaddafi is not an unlawful combatant — he commands a regular armed force that professes allegiance to his regime. According the the MCA Graham helped write, it makes no difference whether our government continues to recognize that regime as the legitimate government of Libya.

Unlike the war in Libya, maintaining the integrity of the legal framework that enables us to detain anti-American terrorists actually is a vital interest of the United States. Given that our government was content to view Qaddafi as a “valuable ally” up until what seems like a few minutes ago — even to the point of fortifying his armed forces — is the sudden craving to exterminate him really worth undermining our long-term security — and embarrassing ourselves more by the minute?