On Liberty & Lawyers
The Supreme Court hears arguments in the enemy combatant cases.


Andrew C. McCarthy

In a very real way, listening to the Supreme Court of the United States spend two days poring over the implications of detaining enemy combatants during wartime should fill any American with a deep sense of pride. One is reminded how singular a privilege it is to live in a nation that so venerates liberty it will bestir itself to agitate even over the liberty of those trying to annihilate us–not so much because of what it means to them as what it says about us.

It is, though, a tempered pride. “Liberty” so readily evanesces from a concrete circumstance to a lofty universal aspiration to a propagandist’s jingo. As it makes that warped transition, it increasingly resides in a vacuum, ever more remote from the real world, where it must compete with other facts on the ground. Facts like this one: It’s no longer September 10, 2001. That old world is gone forever.

The dismaying part about the arguments in the three combatants’ cases the Court is grappling with–one heard last week concerning foreign combatants detained in Guantanamo Bay and two on Wednesday dealing with American citizens held in military brigs here at home–is that it’s principally Liberty the Jingo that is at issue. We are breathlessly warned that the Constitution is under assault; George W. Bush has torn it asunder by declaring the right to lock up anyone–meaning any American, in any place, at any time–and hold him indefinitely, or until the end of the vaporous “War on Terror,” which could take, as Justice O’Connor speculated, 25 to 50 years. At Guantanamo Bay, moreover, the President is claimed to have erected a lawless black hole, away from the watchful eyes and jurisdiction of federal judges, for encaging foreigners on the mere suspicion of being Mulsim. Liberty, the scaremongers wail, is besieged.

How far is the propaganda from the reality? Well, the war is now over 30 months old. During that time, in a nation of about 300 million American citizens, the president has designated exactly three–three–American citizens as enemy combatants. One, Jose Padilla (a.k.a. “Abdullah al Muhajir”), who trained with al Qaeda in Afghanistan and urged a post-9/11 mission involving the detonation of a radioactive “dirty bomb” in a major American city, is said to have been dispatched here by al Qaeda’s operational leaders to conduct massive attacks on dense residential areas and industrial infrastructure. Another, Ali Saleh Kahlah al-Marri, is alleged to have been part of a sleeper cell activated post-9/11 in the U.S. for a second wave of attacks (the government has tied him by phone records to a suspected 9/11 financier, whose number, in the run-up to the suicide hijackings, was also called by ringleader Mohammed Atta). The third, Yasar Esam Hamdi, was captured while armed on the battlefield fighting on behalf of enemy forces that even today–as Army Ranger Pat Tillman’s combat death in Afghanistan just last week poignantly reminds us–continue hunting and killing Americans.

It is in light of these cases that the shock troops of the civil liberties jihad want you to think George Bush is coming for you, too.

But the caterwauling about the purported liberty interests of terrorists has nothing to do with the reality of liberty for you. Unless there’s a colorable case that you are on the verge of indiscriminate mass homicide or are about to tote your AK-47 through Kandahar any time soon, your liberty is safe–and your security to enjoy it is better assured because the people who want to kill you are in the brig.

And what of Guantanamo Bay? These are enemy fighters captured on the battlefield. There is, it bears repeating, a war going on. We could have killed them. Instead, we took the lesser measure of capturing them. As the Defense Department has recently announced, over 10,000 people–enemy forces and their sympathizers–have been removed from theaters of combat in Afghanistan. They were not all shunted off to Gitmo. They were, instead, initially screened to determine whether they were actually enemy combatants, whether they posed a continuing threat to our forces, and whether interrogating them extensively would likely yield intelligence that could help defeat the enemy, save lives, and end hostilities more promptly. Of the roughly 10,000, less than eight percent, or a little under 800, were shipped to Gitmo, where they have been humanely held and interrogated.

Contrary to the bombast, the military does not have a great incentive to hold captives endlessly. Once their intelligence value is exhausted, detaining them is burdensome, and makes sense only insofar as they pose a mortal threat. As a result, of the original 800 Gitmo detainees, scores have already been released–to the point where we are now holding perhaps 650 prisoners, the ones believed to be most dangerous. And, as Newsweek reports this week, releasing many of these may have been a profound mistake–and one made with an eye toward appeasing critics who, we should know by now, will never be mollified as long as even one terrorist’s exertions are being impeded. The released detainees are, predictably, rejoining the battle, taking up arms once again against America.

At too many times during the arguments, in the remove and grandeur of a courtroom far, far from the smolder of the battlefield, Liberty the Jingo seemed awfully weighty as it jousted with these and other new world facts. Our nation has been viciously attacked. Three thousand of our fellow citizens were slaughtered. The enemy demolished a staunch symbol of the economy that is the backbone of our free society, while simultaneously striking at the seat of our military might. We are in a state of war, and it is anything but technical. Nearly 150,000 of our armed forces are in harm’s way, lining hot battlefields in Afghanistan and Iraq. They are still being shot at, wounded and killed. Further, the enemy brayed to the world only days ago that it was working, ever working, to plot attacks during 2004 that promise to dwarf those of 9/11–even as the carnage of the last three years still stuns Madrid, Baghdad, Riyadh, Istanbul, Bali, Casablanca, Djerba, and other victims of militant Islam.

Despite all that, it was not the combatants’ counsel but the government that was pressed hardest by the Supreme Court, some of whose members were viscerally disturbed about the seeming “indefinite[ness]” of the detentions. No one quibbled with the President’s undoubted power to round up combatants in the first hours or days after the 9/11 attacks, but, for goodness sake, it’s been two-and-a-half years now, and how are we to know how long these people will be held without trial?

It’s the kind of abstraction closest to a lawyer’s heart: the argument based on some hypothetical abuse peculiarly detached from the facts on the ground. Thirty months would indeed be a long time if the last shots had been fired long ago. As it happens, there is a very live war going on. It is a war that will destroy all of our liberties if we don’t win. But part of the Court plainly wants the government to pick a number out of the air–30 months? three years? five? Some arbitrary time, unrelated to the progress of the war, when it would somehow feel like justice to say: You’ve held them long enough–charge them with crimes or let them go.

This misses two core points. First, as already noted, letting them go while hostilities rage means letting them go shoot at our troops or terrorize our homeland. The idea here is to defeat the enemy, not send it reinforcements. Second, the arguments seemed devoid of any sense of how harmful court proceedings could be to an ongoing war. Justice Breyer opined that we use the court system all the time to neutralize bad guys–as if Congress had authorized the President after 9/11 to fight the Latin Kings or the Bonanno Family. At least twice, Justice Ginsberg matter-of-factly asserted that the combatants must be presumed innocent. Well, with due respect, no. They are not criminal defendants–at least not now.

They are enemy combatants. Upon being confronted by our troops on the battlefield, they are not presumed innocent; they are attacked, killed, or captured. Capturing them is part of the war effort, not a conversion into a court case. We are not trying to convict them; we are trying to defeat them. And we would decidedly not be advancing the urgent national cause of defeating them if we brought them to court, armed them with all the rights of criminal defendants, and had trial judges instruct jurors that they should presumptively be walked out the courthouse door unless the government has produced compelling quanta of proof–evidence the publication of which, through our very public criminal process and generous discovery rules, would arm the enemy, in the midst of the war, with a trove of intelligence about our information, our sources of it, our methods of obtaining it.

Further lawyering the war process, some members of the Court, Justice Souter in particular, factitiously parsed the sweeping use-of-force authorization Congress extended to the president a week after the 9/11 attacks. The government argues, based on the Civil War-era Prize Cases, that the president is independently vested with power to repel threats against the U.S., and that, when that power is enhanced by a congressional authorization, the executive stands at the apex of his constitutional warrant. In this instance, America was brutally attacked, and Congress reacted within days with a joint resolution exhorting the President to “use all necessary and appropriate force against those nations, organizations, or persons” that either carried out the attacks, harbor those who did, or are planning future attacks. It could not be clearer that Congress did not distinguish between Americans and non-Americans–and it was already well known in 2001 that some al Qaeda affiliated terrorists were Americans, and that some of its cells operated domestically; we had established that during the terrorism trials of the 1990’s.

But Justice Souter–seeming oddly insulated from both al Qaeda’s recent threats and its onslaught of international atrocities–appeared to think the president’s own authority to meet and defeat threats on the U.S. had petered out within a few days of 9/11. That left the congressional resolution, about which he and others brainstormed that perhaps it didn’t really mean what it says. Does the use of force–which indisputably includes killing–really include the less drastic measure of capturing and holding? And, sure, Congress said all “persons” but did it really mean American citizens and those captured on American soil?

This, a friend of mine has jibed, is why people hate lawyers. And it’s hard to argue with that. As Justice Kennedy wisely observed, historically declarations of war are simply not written to contemplate every conceivable contingency. But at times, listening to the justices, one imagined future declarations: monstrosities that would look more like the tax code or the federal sentencing guidelines than timely, clear, unadorned directions to do the things that for centuries have been done by nations to vanquish aggressive belligerents.

This also brings front and center a reason why conservatives so often complain about the Court’s imperiousness. Even the justices most manifestly troubled did not seem to doubt that Congress could authorize, and the president execute, the use of even overwhelming deadly force. Nor was there real dispute that the power to do the greater necessarily includes the power to do the lesser–that it is appropriate merely to capture and detain those you are empowered to kill. Nor, really, could it thus be credibly questioned that the authorization, as written here, could easily be construed to permit the detention of all enemy combatants until the end of hostilities. But rather than leave it at that, some of the justices want more–a positive statement that the facts of these specific cases were within the ambit of legislative contemplation, as well as a certain date when, regardless of what impact it might have on national security, we can either begin jury selection or open the jailhouse doors.

Of course, even if Congress gave them all that, there would be another case tomorrow with new facts unexpressed in the revised resolution, and the merry-go-round would start anew. More to the point, the give-us-more methodology bespeaks a lack of faith in the political process and ignores that Congress often speaks by not speaking. Maybe there’s no new resolution because there’s no popular perception of a problem. If the American people were up in arms about the detention of three American terrorists and 650 foreign enemy troops who belong to forces that have thus far killed over 700 of our military and thousands of our civilians, there would be little reason to fear. There would quickly be a plethora of legislation calling for release, or at least greater scrutiny of the administration’s actions. If broad coalitions in Congress thought for a second that the president’s actions had breached the confines of the post-9/11 resolution, there would be a new resolution, cabining executive action where it had heretofore been excessive. That this has not happened is eloquent testimony to the measure, reasonableness, and humanity-indeed, the American-ness–with which we have met our foes, even as they pursue their holy war.

It is difficult to predict how the combatant cases will be resolved. Oral argument is not always a good barometer of where judges stand on a dispute; sometimes their questions convey a view, sometimes they are merely meant to provoke and challenge, the better to sharpen the debate. In the Guantanamo case, the Court should stay out of it and let the branch responsible for fighting the war–which has done it thus far to great effect and with dignity–decide whom to kill, whom to capture, and whom to hold, without judicial second-guessing. But even if the Court flexes its muscles by seizing unprecedented review power, it is likely to exercise that power deferentially, approving the military’s actions and giving our enemies scant reason for hope–although potentially bogging the war effort down in legal process.

The American enemy combatants are a more worrisome call. It would be nice if the Court reaffirmed its World War II era ruling in Ex Parte Quirin that being an American does not inoculate an enemy from unlawful combatant treatment; but even if the Court were to lay groundwork for future, periodic judicial scrutiny to ensure that detention remains warranted, it is hard to believe the justices will look past the continuing al Qaeda peril and swing open the door to civilian trials, and all the damage they could wreak, in the middle of a war.

All that, however, is almost secondary. What these cases best display is that liberty, as both an ideal and a reality, is alive and well. For all the pernicious atmospherics, our government has been a model of restraint, and these essential detentions do not foreshadow tyrannical abuse.

Andrew C. McCarthy, a former chief assistant U.S. attorney who led the 1995 terrorism prosecution against Sheik Omar Abdel Rahman and eleven others, is an NRO contributor.