One of the primary and most compelling criticisms of the Clinton administration’s approach to terrorism was that it treated terrorism as a criminal rather than national-security matter. The enemy declared war on us years earlier, attacking various U.S. targets and killing U.S. citizens, and we indicted them if we could muster enough evidence. Despite 9/11, today many in Congress and the judiciary, with prodding by the media and left-wing (legal) activists, continue to treat the war on terrorism as Clinton did. And one of the most vocal sponsors of this approach is John McCain.
Despite his tough talk about sending more troops to Iraq (the benefit of which is and was debatable), McCain has led an effort to diminish the traditional war-power authority of the president.
Detaining the enemy
As reported in the New York Times (December 13, 2003), after visiting Guantanamo Bay with his favorite sidekick, Republican Lindsey Graham, and Democrat Maria Cantwell, McCain proclaimed, “They [al Qaeda detainees] may not have any rights under the Geneva Conventions as far as I’m concerned, but they have rights under various human rights declarations. And one of them is the right not to be detained indefinitely.” In a letter McCain and the others fired off to Secretary of Defense Donald Rumsfeld, McCain asserted, “The treatment of the detainees is not an issue. However, a serious concern arises over the disposition of the detainees–a considerable number of whom have been held for two years.”
I am aware of no “right” under some binding declaration that requires the release or trial of unlawful enemy combatants before the end of hostilities. In fact, garden-variety prisoners of war, who have full protection under the Geneva Conventions, are held until the war’s end. In World War II, before the Geneva Conventions, hundreds of thousands of POWs were held until we defeated the enemy. As a practical matter, the McCain approach would require a nation at war to allocate massive resources to processing the enemy through the court system. Untold numbers of military personnel would have to be pulled from the battlefield to provide some form of testimony justifying detention in each case. And the Supreme Court’s 2004 Rasul and Hamdi decisions, conferring (unspecified) due process rights on the enemy–which, presumably, McCain would endorse given his release-or-try demand–would make military victory extraordinarily difficult.
Interrogating the enemy
Having earlier said that the length of detention of detainees, not their treatment, was his concern, McCain would then move on to their treatment. McCain seized on endless reports in the New York Times and elsewhere about Abu Ghraib and the mistreatment of detainees at Guantanamo to push an amendment he attached to the Defense-appropriations bill conferring Fifth, Eighth, and Fourteenth Amendment rights on al Qaeda terrorists detained in Cuba. The amendment also makes aggressive interrogation of the enemy far more complicated and difficult by providing that “No individual in the custody or under the physical control of the United States Government, regardless of nationality or physical location, shall be subject to cruel, inhuman, or degrading treatment or punishment.” [Emphasis added.] Of course, the phrase “degrading treatment” will now appear in every brief filed by some ACLU lawyer claiming torture on behalf of his terrorist client. Ultimately, judges will be called upon to make what should be presidential war-making decisions.
Gathering intelligence on the enemy
Having already challenged the detention and interrogation of the enemy, this Sunday on Fox News Sunday McCain said that he doesn’t believe the president has the constitutional authority to intercept al Qaeda communications with possible saboteurs in the U.S. unless that authority is statutorily granted by Congress. There’s nothing in our history to support that position. Abraham Lincoln, Woodrow Wilson, and Franklin Roosevelt didn’t seek congressional authority to secure intelligence against the enemy, because they already had the power under the Constitution. The Foreign Intelligence Surveillance Act cannot and does not trump presidential authority. Moreover, the Fourth Amendment, and the requirement of probable cause and search warrants, has nothing to do with gathering intelligence on a declared enemy. Even in 18th-century Britain, from where we get the concept of probable cause, its application had no relevance to war-related investigations aimed at determining the enemy’s next act. The idea that the president has the power to rain devastation on the enemy, including destroying entire cities as in World War II, but he doesn’t have the authority to intercept the enemy’s communications with individuals in the U.S. without judicial approval, is absurd at every level.
It just so happens that in each of these cases–detention, interrogation, and intelligence gathering–McCain has adopted the litigation agenda of some of the most radical antiwar activists, including the ACLU. If Mona Charen decides to update her book Useful Idiots, she might want to add a new chapter.
–Mark R. Levin is author of the best-selling Men In Black, president of Landmark Legal Foundation, and a radio talk-show host. He blogs at NRO at levin.nationalreview.com.