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Not Unlawful, Not an Enemy Combatant
Senator Graham prepares to set the law of war on its head.


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Andrew C. McCarthy

Is there a limit to the damage this government is willing to do to American credibility and security in its sudden haste to rid the world of Moammar Qaddafi — known until recently as a valuable new American ally? Here’s the latest: Sen. Lindsey Graham is ready to make a mockery of what’s been the legal foundation of our counterterrorism agenda since the Bush administration: the concept of “unlawful enemy combatant.” That is the basis, under the law of war, on which we detain terrorists like Khalid Sheikh Mohammed without trial, in order to prevent them from slaughtering more Americans, as well as authorize military-commission trials against those terrorists for war crimes against the United States. There are many good reasons to do this, one of which is the fact that under this process we don’t have to vest them with all the rights of American citizens and surrender to them the intelligence trove that would be made available under civilian due-process rules.

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Senator Graham was interviewed by CNN’s Wolf Blitzer on Wednesday. He repeated the now-familiar interventionist creed: Qaddafi is an incorrigible terrorist enemy of the United States, has been for 40 years, and therefore he must be removed by force — by U.S. force — regardless of the fact that he has neither attacked nor threatened to attack the United States, that Congress has not authorized war against him, and that we have great reason to surmise that his regime would be replaced by Islamists who would pose an actual threat to Americans. Graham bewailed President Obama’s failure to be clear on the objective of regime change and his lack of resolve to jump unambiguously onto the side of the “rebels” — Obama prefers the camouflage of a humanitarian mission to protect civilians, even though, as Blitzer pointed out, he has dispatched covert intelligence operatives to help Qaddafi’s opposition (despite telling the American people there would be no U.S. “boots on the ground”).

Toward the end of the interview, Blitzer asked the natural question: Since we have these U.S. operatives on the ground, couldn’t we just have them kill or capture Qaddafi? Is that something President Obama could authorize?

Graham acknowledged that this was “a good question.” He is more right about that than he seems to realize. There is an executive order still in place that prohibits assassinations of foreign officials — that, indeed, is why, when our forces attacked Qaddafi’s compound during the Reagan administration, commanders stressed that they were targeting command-and-control assets, not targeting Qaddafi personally.

Yes, it’s only an executive order, which means President Obama could rescind it. But no one — least of all Senator Graham — is suggesting such a politically fraught course. A big part of the order’s rationale is to discourage hostile foreigners from assassination attempts against top American officials, including presidents. No one wants to appear cavalier about that possibility.

Thus the quandary: If Qaddafi is a head of state, and you have no intention of repealing the proscription against assassinating heads of state, does that mean we can’t have the CIA rub out the dictator? Not at all, contends Graham in his clever-lawyer persona. Abracadabra, President Obama could just wave his magic wand (or is it a scepter?) and unilaterally declare Qaddafi an unlawful enemy combatant. That way, see, he’d no longer be a chief of state.



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