Comforting the Enemy
The Second Circuit seeks to bar the president from detaining enemy combatants.
By Andrew C. McCarthy, National Review
If you were under the impression that the 9/11 atrocities marked the long-overdue end of a suicidal government philosophy that terrorists and bombs should be fought with indictments and trials instead of missiles in the air and boots on the ground, guess again. A number of our esteemed federal judges did not get the memo. And having been such a ringing success at running prisons, schools, and housing developments, they've now decided to give micromanaging the prosecution of war a try.
Such is the unmistakable message of Thursday's decision by a divided panel of the U.S. Court of Appeals for the Second Circuit in New York in the case of Jose Padilla (a.k.a. "Abdullah al Muhajir"), alleged to be an al Qaeda-trained dirty bomber. Despite the existence of very active military hostilities against an international terror network that has already executed domestic mass murder, the two-judge majority held that the president, the commander in chief responsible for conducting the war, is without authority to detain as an unlawful combatant an operative he found to have been dispatched by the terror network to carry out further slaughter, including the detonation of a radiological weapon of mass destruction. Padilla must instead, according to Circuit Judges Rosemary S. Pooler and Barrington D. Parker Jr., be charged and tried in a civilian court, where he would be entitled to the panoply of rights accorded criminal defendants — including, of course, massive amounts of discovery regarding what we know about his al Qaeda activities and how we know it.
Padilla, an American citizen and multiple prior felon with a juvenile murder conviction on his résumé, moved to Egypt and adopted militant Islam after being released from prison following a 1991 Florida weapons conviction. According to information proffered by the government to the federal district court, he traveled through the Middle East, eventually teaming up with al Qaeda in Afghanistan. In 2001 — long after bin Laden had already declared war against the United States, simultaneously bombed our embassies in Kenya and Tanzania (killing well over 200), and attacked the U.S.S. Cole in Yemen (killing 17 of our military personnel) — Padilla is said to have proposed to one of bin Laden's most intimate aides, the infamous Abu Zubaydeh, a plan to steal radioactive material within the United States in order to build a dirty bomb (or "radiological dispersal device"). Al Qaeda made available a safe house in Lahore, Pakistan, for research on the project, provided Padilla with the necessary training for this and other terror operations, and then dispatched him to the United States to make mayhem.
Fortunately, the government managed to develop enough evidence to detain him on a material-witness arrest warrant once he landed in Chicago, from Pakistan, on May 8, 2002. Then, as now, Americans were engaged in robust fighting against al Qaeda in Afghanistan and elsewhere; then as now, al Qaeda was promising new attacks against the United States and its allies. And while, thanks to the president's steely determination to take a military war to a military enemy, the terror network has not succeeded in reprising September 11 here at home, it has continued to conduct murderous bombing operations in Tunisia, Kenya, Indonesia, Morocco, Saudi Arabia, Turkey, and Iraq.
There being a war against al Qaeda, and Padilla being an al Qaeda operative sent here to conduct attacks, the president made the eminently sensible decision to declare Padilla an enemy combatant and to have the Defense Department detain him. The authority under the laws of war to detain enemy combatants for the duration of hostilities has a rich pedigree. The logic, as explicitly recognized by the Geneva Conventions in 1949, is "to prevent military personnel from taking up arms once again against the captive state."
Under the Hague Convention of 1910, enemy combatants may be lawful or unlawful, based on whether they are subject to a formal chain of command, wear uniforms, carry their weapons openly, and conduct their operations in accordance with the laws and customs of war. Obviously, those who serve al Qaeda, a non-sovereign, multinational terrorist organization that clandestinely designs and executes indiscriminate mass homicide, are unlawful combatants.
While lawful combatants generally must be released at the cessation of hostilities unless some egregious conduct has rendered them triable as war criminals, unlawful combatants have no such right. It was once common for them to be executed summarily, although as Chief U.S. District Judge Michael B. Mukasey observed earlier in the litigation, "such Draconian measures have not prevailed in modern times in what some still refer to without embarrassment as the civilized world." Instead, it has long been established, as the Supreme Court recognized in its 1942 decision in Ex Parte Quirin, that unlawful combatants may be tried by military tribunals — even when civilian courts are available.
Faithful to these principles, District Judge Mukasey, deservedly among the most well-respected jurists in America and nonpareil in matters of national security, upheld President Bush's decision in a thoughtful, painstaking 102-page opinion. The dissenting third member of the Second Circuit's Padilla panel, Judge Richard C. Wesley, would have adopted the district court's ruling in all respects. Nevertheless, the panel majority reversed in a nettlesome opinion that both turns its back on settled law and displays a startling insouciance about the reality on the ground.
To arrive at their conclusion, Judges Pooler and Parker first had to tiptoe around about 150 years of jurisprudence, beginning with the Prize Cases of 1862 (arising out of President Lincoln's Civil War blockade of secessionist states), which holds that the president is not merely fully vested by Article II of the Constitution, but in fact obligated, to resist by all appropriate measures, including the use of force, a forcible attack against the United States. Similarly, the majority needed to end-around the commonsense separation of powers doctrine that it is for the president, not federal judges, to determine what measures are necessary to protect the country in time of war.
The majority paid lip service to these principles, but undermined them nonetheless by a demonstrably specious distinction: viz., whether the president's responsive measures are employed against "the outside world" or "turned inward" to United States territory. This notion the majority augmented with a loopy "zone of combat" theory — hypothesizing that even if the president can turn his powers war inward, he can only do so in a zone of active combat. The majority did not explain what "zone of combat" is, and who gets to decide whether there is one; they simply insisted that, wherever it was, Padilla was not in it.
Leaving aside al Qaeda's palpable success in fighting the war right in the heart of New York City — indeed, the chasm that was once the World Trade Center can be seen from the windows of the courthouse where the Second Circuit sits — the majority found this alleged distinction by mining language from a concurring opinion in the steel-seizure case (in which the Supreme Court undid President Truman's appropriation of American steel mills during the Korean War). Of course, that case had nothing to do with enemy combatants or an entity in hostilities with — and directing military operations inside — the United States.
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