Holder vs. Holder

When it comes to terrorists, the AG is at odds with himself.

Andrew C. McCarthy
Saturday, May 07, 2011

Why does the Obama Justice Department seem to have trouble mounting a full-throated, compelling legal defense of Osama bin Laden’s killing? The problem for Eric Holder the attorney general could be Eric Holder the private attorney.

In 2004, Mr. Holder chose to file an amicus brief on behalf of Jose Padilla, the al-Qaeda terrorist sent to our country by bin Laden and Khalid Sheikh Mohammed to carry out a post-9/11 second wave of attacks. In the brief, Holder argued that a commander-in-chief lacks the constitutional authority to do what his boss, the current commander-in-chief, has just done: determine the parameters of the battlefield. By Holder’s lights — at least when the president is not named Obama — an al-Qaeda terrorist must be treated as a criminal defendant, not an enemy combatant, unless he is encountered on a traditional battlefield.

It would be useful if staffers at congressional oversight hearings passed around copies of Holder’s Padilla brief. It is a comprehensive attack on Bush counterterrorism, an enthusiastic endorsement of the law-enforcement approach in vogue during the Clinton era (when Holder was deputy attorney general under Janet Reno, who also signed on to the Padilla brief). This might explain why Holder sometimes has difficulty answering seemingly easy questions. That’s what happened this week, when the Senate Judiciary Committee quizzed the attorney general on the lawfulness of the U.S. military’s targeted killing of bin Laden.

This should be a no-brainer, unless you are a transnational progressive, such as those in the Human Rights Watch crowd, which does not concede the primacy of American law when it comes to American government action; or a pedant such as Fox’s Andrew Napolitano, who seems to think the Constitution’s words “declare war” have a talismanic quality, as if Congress were powerless to authorize warfare without uttering them.

A few days after the 9/11 atrocities, Congress — by huge bipartisan margins — enacted a sweeping authorization of the use of military force (AUMF). The AUMF, which was promptly signed by President Bush and has been reaffirmed repeatedly in congressional appropriations signed by Presidents Bush and Obama, states in pertinent part:

The President is authorized 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.

Congress could not more clearly have empowered the president to launch military operations against those responsible for the 9/11 attacks. No one was more responsible than bin Laden, who — to use the crystal clear AUMF terminology — planned and authorized the suicide-hijackings.

Not only did the AUMF put our nation on a firm war footing, Congress imposed no geographical or situational limitations on combat operations against those determined by the commander-in-chief either to have carried out 9/11 or to have harbored those terrorists. Manifestly, either Pakistan is our ally — as its government and ours both profess — in which case killing bin Laden on its soil is routine (there having been many U.S. strikes against the enemy in Pakistan), or Pakistan was harboring bin Laden in Abbottabad, in which case the AUMF expressly authorizes not only attacks against al-Qaeda operatives in Pakistan but against Pakistan itself. Q.E.D.

Except it’s not that simple for Eric Holder the attorney general, because Eric Holder the private lawyer advocated greater legal protections for terrorists.

The attorney general told the Judiciary Committee on Wednesday that the killing of bin Laden “was justified as an act of national self-defense.” But self-defense has nothing to do with it. True, the war is a defensive war in response to an atrocious terrorist attack; that, however, does not make each individual operation by which the war is waged an exercise in self-defense. In fact, had such a suggestion been made by a Bush-administration official, Holder would likely have been outraged: In effect, the self-defense rationale would give wartime presidents exactly the “blank check” the Lawyer Left insists they do not have. No, the operation in which bin Laden was killed was offensive, and rightly so.

As Fox news elaborated, the attorney general also trotted out a second theory:

Holder said it’s lawful to “target an enemy commander in the field,” just as U.S. forces did during World War II when it [sic] shot down a plane carrying Japanese Adm. Isoroku Yamamoto. Bin Laden was “by my estimation, and the estimation of the Justice Department, a lawful military target, and the operation was conducted consistent with our law [and] with our values.” Bin Laden made no attempts to surrender and there was “no indication he wanted to do that,” Holder said.

Notice that Holder’s defense here rests on the premise that bin Laden was targeted in the field, meaning, on a battlefield. If an enemy combatant is encountered on the battlefield and he does not surrender, he may be killed or captured — it makes no difference whether he was armed, as bin Laden apparently was not.

But hold on: Bin Laden was not confronted on a battlefield. Nor was he, like Admiral Yamamoto, in an aircraft, which theoretically can be a military asset — or even used as a missile, as al-Qaeda has demonstrated. To the contrary, al-Qaeda’s emir was targeted in a residential neighborhood. Though he had some bodyguards, he was in the company of noncombatant women and children.

For most Americans, that does not detract at all from the legitimacy of bin Laden’s killing. This enemy has declared a global jihad against the United States. Al-Qaeda reserves to itself the prerogative to turn any place of its choosing into a battlefield. In fact, it would be perilous not to assume, when encountering al-Qaeda operatives, that this is exactly what they are up to. Their m.o., after all, is to target civilians for mass murder and to hide among civilians in order to frustrate retaliatory strikes. Consequently, it should make no difference that bin Laden was not found on a traditional battlefield — that he was in a residential compound inside a country with which the United States is not at war.

Nevertheless, what is not a problem for most Americans is a problem for Mr. Holder — at least if we’re talking about Eric Holder the prominent Democratic lawyer who filed the Padilla amicus brief, an action that he failed to disclose to the Senate during his confirmation process.

Padilla was apprehended coming off a plane in Chicago. He was unarmed and in an airport, not on a traditional battlefield. Though not an enemy commander like bin Laden or Yamamoto, he was clearly an enemy combatant, and a quite deadly one, given the nature of his mission. Yet President Bush did not authorize his killing. Padilla was taken into custody by law-enforcement agents and later transferred to military custody after being designated an enemy combatant — for which the Lawyer Left lustily rebuked the president.

Plainly, there are some distinctions between the Padilla and bin Laden situations. Not only was Padilla encountered inside our territory (after arriving on a flight from — where else? — Pakistan), he is also an American citizen. But Holder did not limit his argument on behalf of the terrorist to these circumstances. He also forcefully argued that the Bush administration did not have the power to treat Padilla as an enemy combatant because he was not found on a battlefield:

Amici do not question the power of the President, as Commander-in-Chief, to detain persons, even citizens, seized on an active field of battle. We recognize that the President has broad authority as Commander-in-Chief during a time of war or threat to the security of our Nation. . . . But the exigencies of the battlefield present a vastly different circumstance than even the bustle of O’Hare Airport. . . . While the government suggests that Padilla was arrested on a “battlefield,” . . . under its standards the “battlefield” against terrorism could extend throughout the world and the “hostilities” could be of indefinite and perhaps undefinable duration. Legal standards developed to deal with traditional wars cannot be imported wholesale into this very different context.

Holder was dangerously wrong. Put aside that no war comes with an expiration date. It was not the Bush administration that extended the battlefield “throughout the world.” The standards in question were set by al-Qaeda. That is no doubt why Congress prudently did not attempt to circumscribe the commander-in-chief’s discretion to determine what the battlefield is. We don’t want terrorists to have any sanctuaries.

This is also precisely why President Obama has “imported wholesale” into his command the traditional concept that a battlefield can be any location where the enemy can conduct operations — which, in al-Qaeda’s case, is any place where its operatives are found. That is the risk a terrorist runs — being an unlawful combatant who flouts laws of war designed to protect civilians, the terrorist must be denied the privileges that reward lawful combatants for conducting warfare honorably.

Contrary to Mr. Holder’s rationalizations about self-defense and “traditional” battlefields, President Obama was well within his power, under the Constitution and Congress’s AUMF, to order bin Laden’s killing in an offensive raid on a residential Pakistani compound. Only an unambiguous surrender by the al-Qaeda leader might have rendered the killing problematic. It was thus curious to find, in the Fox report, Holder’s supposition that, even if bin Laden had surrendered, there would have been a “good basis” for “those very brave Navy SEALs” to shoot bin Laden — “in order to protect themselves and the other people who were in that building,” including “substantial numbers of women and children.”

Protections granted to honorable combatants under the laws of war — many of which the Lawyer Left and the Obama administration have pushed to extend to terrorists — generally hold that when quarter is sought, it must be given. It is “especially forbidden,” instructs Article 23 of the 1907 Hague Convention, “to kill or wound an enemy who, having laid down his arms, or having no longer means of defence, has surrendered at discretion.” It is, moreover, deemed an egregious violation of international law for a country at war to indicate that no quarter will be given, that it will take no prisoners.

But who knows? Maybe Mr. Holder is evolving.