March 2010 America's War On Islamist Terror...Or
Is It?
Andrew McCarthy
Senior Fellow
National Review Institute
ANDREW C. MCCARTHY is a senior fellow at the National Review
Institute. For 18 years, he was an Assistant U.S. Attorney in the South
District of New York, and from 1993-95 he led the terrorism prosecution
against Sheik Omar Abdel Rahman and 11 others in connection with the
1993 World Trade Center bombing and a plot to bomb New York City
landmarks. Following the 9/11 attacks, he supervised the Justice
Department’s command post near Ground Zero. He has also served as a
Special Assistant to the Deputy Secretary of Defense and an adjunct
professor at Fordham University’s School of Law and New York Law School.
Mr. McCarthy writes widely for newspapers and journals including
National Review, the Wall Street Journal, and USA
Today, and is the author of the book Willful Blindness: A
Memoir of the Jihad.
The following is adapted from a speech delivered in Washington,
D.C., on March 5, 2010, in the “First Principles on First Fridays”
lecture series sponsored by Hillsdale College’s Allan P. Kirby, Jr.
Center for Constitutional Studies and Citizenship.
“YOU ARE HEREBY commanded to show cause.” The general studied the
document in his hands. It was a writ of habeas corpus. A federal judge
was presuming, in the midst of war, to order him to report to the
courthouse the following morning and explain the basis on which the U.S.
Army was holding a prisoner of war.
Habeas corpus: “You shall have the body.” It is known as “the Great
Writ,” an inheritance from the Magna Carta and British common law that
was formally established in the American colonies in the 1690s. When the
Constitution was adopted in 1787, it became part of our fundamental law,
enshrined in Article I, Section 9: “The Privilege of the Writ of Habeas
Corpus shall not be suspended, unless when in Cases of Rebellion or
Invasion the public Safety may require it.” The writ, in short, is a
time-honored bulwark against tyranny.
But to return to our story: Louisiana had only been a state for about
three years when, in early 1815, General Andrew Jackson authorized the
arrest and detention of Louis Louailler. “Old Hickory” had just saved
the Republic by defeating the British forces of General Sir Edward
Pakenham in the decisive Battle of New Orleans. The Treaty of Ghent,
which formally concluded the War of 1812, had actually been signed by
British and American foreign ministers over two weeks earlier. But news
of the treaty did not reach the U.S. in time to forestall the battle. It
was the one great American victory of the war.
Just as Jackson hadn’t known about the formal armistice, neither did he
know what the British army would do. Would it regroup and attempt
another assault? So he imposed martial law. That did not please Mr.
Louailler, who took to the newspapers to attack Jackson’s decision.
Perceiving this as an incitement, Jackson had Louailler arrested.
Supporters of the imprisoned man appealed to the Honorable Dominick
Augustin Hall, the U.S. District Judge in Louisiana.
Hall, being a jurist, had no responsibility for national security—a
responsibility assigned by the Constitution to elected officials. The
judge’s only duty was to ensure that any litigants properly before him
were afforded due process. But Judge Hall was of a mind that he, not
General Jackson, personified the rule of law—security or no
security.
General Jackson was of a different mind. Instead of responding to the
writ as directed, he had Judge Hall arrested and, after a time, escorted
by troops several miles outside the city limits and set free.
We’ve come a long way from Andrew Jackson to Barack Obama—and an even
longer way from Louis Louailler to Umar Farouk Abdulmutallab, the
so-called Christmas bomber.
* * *
It has become fashionable these days to invoke the “rule of law” as if
it means the rule of lawyers—and in particular, the rule of judges. But
that has never been the term’s meaning. In the U.S., the rule of law is
embodied in the Constitution and resides in the statutes, treaties,
rules, and regulations adopted pursuant to the Constitution. The rule of
law does not refer either to judges or to elected officials, who are
themselves servants of the Constitution.
It has also become trendy in recent years, especially among our legal
elites, to declaim piously that “the Constitution is not suspended in
wartime.” And, of course, no true patriot believes that the Constitution
could ever be suspended. But the Constitution is not—nor has it ever
been—the imposition of judicial rule. Indeed, the Constitution imposes
strict limitations on the judicial power, just as it does on Congress
and the executive branch. It has never been the case that where judicial
power ends, anarchy begins.
General Jackson may have been wrong to lock up Louis Louailler in 1815.
In fact, the military court that tried Louailler acquitted him. But
Jackson was not wrong in determining that it was his decision to
make—not as a tyrant, but within the constraints of military protocols
in war time. When formal word of the peace treaty reached New Orleans,
Jackson immediately reinstated civilian control. But until that time,
he—not the civilian courts—was responsible for keeping order. In the
state of war, those courts were inadequate for that task—unless one
believes that Judge Hall, with his writs, was a match for His Majesty’s
armed forces, then thought to be the mightiest on earth.
In doing as he did, General Jackson was applying a principle stated with
clarity almost a century later by Justice Oliver Wendell Holmes, Jr.,
writing for a unanimous Supreme Court in the case of Moyer v. Peabody:
When it comes to a decision by the head of the State upon a matter
involving its life, the ordinary rights of individuals must yield to
what he deems the necessities of the moment. Public danger warrants the
substitution of executive process for judicial process.
When the life of the state is imperiled, that is, the Constitution does
not become suspended; it adapts. In times of armed conflict, it imposes
the laws and customs of war, which—under those circumstances—are as
consistent with the rule of law as judicial processes are in peacetime.
On this point, it is worth pausing to recall why we have a Constitution.
After achieving independence, our country proved unsuccessful in
governing itself under the Articles of Confederation. Paramount among
the reasons for this was the attempt under the Articles to provide
national security by committee—something that proved utterly ineffective
in dealing with threats from England, Spain, and the Barbary Pirates.
The Constitution remedied this potentially fatal weakness by placing all
executive power, including the power of commander-in-chief, in a single
elected official—the president—who could act with great energy and
dispatch.
The Framers of the Constitution understood that the rights we cherish
would be little more than parchment promises unless we could defend
ourselves and defeat our enemies. Moreover, they understood that—given
human nature—we would always have enemies. Unlike opponents of the war
against Islamist terror today, they did not believe that we would be
able to define our enemies out of existence by not uttering their
names—or rationalize them out of existence by insisting that their
hostility is somehow our own fault. Nor did the Framers believe that we
would be able to indict our enemies into submission in our civilian
courts. They believed that we would have to defeat them, which means
being able to enforce the protocols necessary to wage war successfully.
These protocols are the laws of war, and they are older than the U.S.
itself. They include requiring combatants to wear uniforms, to carry
their weapons openly, to be part of a regular armed force, and, most
importantly, to refrain from intentionally targeting civilians. They
also define wartime powers and privileges. Enemy combatants, for
example, may be captured and detained until the conclusion of
hostilities. Fighters who adhere to the laws of war are entitled to
various protections upon capture. By contrast, fighters who flout the
laws of war—such as non-uniformed terrorists who target civilians—are
unlawful combatants and may be prosecuted by a military commission for
war crimes.
This is not a judicial system, and it is not intended to be. But it is
every bit a legal system. And throughout our history—at least until
recently—this has been well understood. Since 9/11, however, anti-war
lawyers have challenged the idea of a separate legal status for unlawful
combatants. Here they are up against not only common sense but history.
* * *
President Lincoln, of course, suspended habeas corpus upon the outbreak
of the Civil War. (Not as often mentioned is the fact that
Congress—which was out of session at the time—later endorsed Lincoln’s
action.) When Lincoln’s action was eventually brought before the Supreme
Court, the issue was not whether habeas corpus could be suspended in
case of rebellion—as we have seen, that is clearly provided for in the
Constitution—but which elected branch of government could suspend it.
Chief Justice Roger Taney concluded in the case of Ex parte Merryman
that because the Suspension Clause is in Article I, it must have been
understood as a power of Congress rather than the president—a reasonable
interpretation, though hardly indisputable. What was unreasonable about
the decision was Taney’s claim that if the courts were open and
functioning, even in wartime, federal judges—not the political
branches—should have the final word on what actions could be taken in
defense of the nation. That claim had no constitutional support—it was a
power-grab pure and simple, and a foolish and undemocratic one.
At the time Lincoln suspended habeas corpus, the survival of the Union
hung in the balance, with Confederate sympathizers sabotaging railways
and otherwise impeding the movement of Union forces and supplies. It is
for just such exigencies that the Suspension Clause exists. As Lincoln
reasoned in a message to a special session of Congress on July 4, 1861,
if the writ of habeas corpus—“fashioned with such extreme tenderness to
the citizens’ liberty”—were as sacrosanct as Taney contended, it would
allow “all the laws, but one, to go unexecuted, and the government
itself to go to pieces, lest that one be violated.” Taney’s claim is
preposterous on its face. What of the President’s obligation “to
preserve, protect and defend the Constitution”? What of the central
purpose of government “to provide for the common defense”? What becomes
of our rights if the structure so carefully crafted to defend them
vanishes?
President Roosevelt grappled with similar challenges during World War
II. In June 1942, when the outcome of the war was anything but clear,
eight German saboteurs were captured after landing on the coasts of Long
Island and Florida. They had been sent by Hitler to commit acts of
terrorism against civilian infrastructure, and Roosevelt decided to make
an example of them. He wasn’t concerned with the fact that the federal
courts were open and functioning. Nor was he swayed by the fact that one
of the saboteurs was an American citizen. He directed that all eight of
them be detained as enemy combatants and tried by a military commission.
Nor did he perceive the need to festoon the proceedings with trappings
of a martial setting: the trial took place in an FBI conference room in
what is now the Robert F. Kennedy Department of Justice Building.
The saboteurs’ defense lawyers naturally cried foul, filing a petition
for a writ of habeas corpus in the Supreme Court and claiming that this
military commission violated the Constitution. Upon hearing of the
petition, Roosevelt summoned Attorney General Francis Biddle and
directed him to tell the Chief Justice that he did not care what the
Supreme Court thought; that the Constitution made him, not the justices,
responsible for the lives of the American people and the successful
prosecution of the war; and that he would not be releasing the
prisoners, regardless of the Court’s disposition of the case.
This provided a judicial “king has no clothes” moment of clarity such as
we have not had in the ensuing 68 years. The fact is that courts have no
power to enforce their edicts. Roosevelt was willing to bet, if it got
down to brass tacks, that the American people would agree that the
president they had elected—and who would have to face their judgment
again in the next election—should be prosecuting the war, rather than a
tribunal of unelected judges. In the event, the Supreme Court agreed,
and in the case of Ex parte Quirin it upheld all of Roosevelt’s actions.
Most of the saboteurs were subsequently executed, following military
trial, approximately seven weeks after their capture.
How do we get from the decisive actions of Jackson, Lincoln, and
Roosevelt to the Obama administration’s stunning mishandling of Umar
Farouk Abdulmutallab? Recall that this terrorist tried to detonate a
chemical bomb on an airplane—an attack that would have killed all 288
innocents onboard and an untold number of Americans on the ground.
Recall that he was a trained operative of al Qaeda—a transnational
terrorist network with which we are at war. Recall that he was a
Nigerian national sent from Yemen to attack us, and had no claim
whatsoever on the protections of civilian due process. What’s more, our
intelligence community tells us that Yemen is now one of the prime
launch points of Islamist terror. Abdulmutallab had spent four months
there. He knew the training camps, the trainers, and the identities of
other terrorists (evidently, scores of them). In light of these facts,
his capture alive should have been one of the great intelligence coups
of the war. Instead, he was questioned for a mere 50 minutes before
being given Miranda warnings and a lawyer—at which point he invoked his
supposed right to remain silent, was consigned to the civilian justice
system, and was charged in an indictment that gave him plea-bargaining
leverage in any further negotiations over what he would tell us.
This approach was not only unnecessary, it was wrong. The terrorist
could and should have been designated an enemy combatant and
interrogated without the interference of a lawyer or the complications
of a civilian prosecution. Even if one believed—as the Obama
administration says it believes—that it is important to our reputation
around the world to endow him with the rights of the Americans he was
trying to slaughter, there was no legal requirement that that be done
immediately. He could have been turned over to civilian authorities two
or three years from now, once his intelligence reservoir was fully
tapped. We’d have lost nothing in the meantime except the ability to
introduce any confession at trial—and no confession is needed when a
terrorist tries to bomb an airplane in front of nearly 300 witnesses.
* * *
Robert Jackson—the U.S. Attorney General from 1940-41, a Supreme Court
Justice from 1941-54, and the chief prosecutor at the Nuremberg
Trials—wrote the following in a 1948 Supreme Court case, Chicago &
Southern Air Lines v. Waterman S.S. Corp.:
The very nature of executive decisions as to foreign policy is
political, not judicial. Such decisions are wholly confided by our
Constitution to the political departments of the government, Executive
and Legislative. They are delicate, complex, and involve large elements
of prophecy. They are and should be undertaken only by those directly
responsible to the people whose welfare they advance or imperil. They
are decisions of a kind for which the Judiciary has neither aptitude,
facilities, nor responsibility and have long been held to belong in the
domain of political power not subject to judicial intrusion or inquiry.
The Constitution of Justice Jackson—like the Constitution of Presidents
Jackson, Lincoln, and Roosevelt—is that of a free, self-governing
people. Such a people does not surrender control of the most fundamental
political decisions—such as those concerning national defense—to
officials who are not politically accountable. Nor should our elected
officials voluntarily surrender control of those decisions. We must
reject the idea of entrusting our security to judicial processes or we
shall eventually find ourselves neither secure nor free.
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