Why does the Obama Justice Department seem to have trouble mounting a full-throated, compelling legal defense of Osama bin Laden’s killing? The problem for Eric Holder the attorney general could be Eric Holder the private attorney.
In 2004, Mr. Holder chose to file an amicus brief on behalf of Jose Padilla, the al-Qaeda terrorist sent to our country by bin Laden and Khalid Sheikh Mohammed to carry out a post-9/11 second wave of attacks. In the brief, Holder argued that a commander-in-chief lacks the constitutional authority to do what his boss, the current commander-in-chief, has just done: determine the parameters of the battlefield. By Holder’s lights — at least when the president is not named Obama — an al-Qaeda terrorist must be treated as a criminal defendant, not an enemy combatant, unless he is encountered on a traditional battlefield.
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It would be useful if staffers at congressional oversight hearings passed around copies of Holder’s Padilla brief. It is a comprehensive attack on Bush counterterrorism, an enthusiastic endorsement of the law-enforcement approach in vogue during the Clinton era (when Holder was deputy attorney general under Janet Reno, who also signed on to the Padilla brief). This might explain why Holder sometimes has difficulty answering seemingly easy questions. That’s what happened this week, when the Senate Judiciary Committee quizzed the attorney general on the lawfulness of the U.S. military’s targeted killing of bin Laden.
This should be a no-brainer, unless you are a transnational progressive, such as those in the Human Rights Watch crowd, which does not concede the primacy of American law when it comes to American government action; or a pedant such as Fox’s Andrew Napolitano, who seems to think the Constitution’s words “declare war” have a talismanic quality, as if Congress were powerless to authorize warfare without uttering them.
A few days after the 9/11 atrocities, Congress — by huge bipartisan margins — enacted a sweeping authorization of the use of military force (AUMF). The AUMF, which was promptly signed by President Bush and has been reaffirmed repeatedly in congressional appropriations signed by Presidents Bush and Obama, states in pertinent part:
The President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.
Congress could not more clearly have empowered the president to launch military operations against those responsible for the 9/11 attacks. No one was more responsible than bin Laden, who — to use the crystal clear AUMF terminology — planned and authorized the suicide-hijackings.
Not only did the AUMF put our nation on a firm war footing, Congress imposed no geographical or situational limitations on combat operations against those determined by the commander-in-chief either to have carried out 9/11 or to have harbored those terrorists. Manifestly, either Pakistan is our ally — as its government and ours both profess — in which case killing bin Laden on its soil is routine (there having been many U.S. strikes against the enemy in Pakistan), or Pakistan was harboring bin Laden in Abbottabad, in which case the AUMF expressly authorizes not only attacks against al-Qaeda operatives in Pakistan but against Pakistan itself. Q.E.D.
Except it’s not that simple for Eric Holder the attorney general, because Eric Holder the private lawyer advocated greater legal protections for terrorists.
The attorney general told the Judiciary Committee on Wednesday that the killing of bin Laden “was justified as an act of national self-defense.” But self-defense has nothing to do with it. True, the war is a defensive war in response to an atrocious terrorist attack; that, however, does not make each individual operation by which the war is waged an exercise in self-defense. In fact, had such a suggestion been made by a Bush-administration official, Holder would likely have been outraged: In effect, the self-defense rationale would give wartime presidents exactly the “blank check” the Lawyer Left insists they do not have. No, the operation in which bin Laden was killed was offensive, and rightly so.
As Fox news elaborated, the attorney general also trotted out a second theory:
Holder said it’s lawful to “target an enemy commander in the field,” just as U.S. forces did during World War II when it [sic] shot down a plane carrying Japanese Adm. Isoroku Yamamoto. Bin Laden was “by my estimation, and the estimation of the Justice Department, a lawful military target, and the operation was conducted consistent with our law [and] with our values.” Bin Laden made no attempts to surrender and there was “no indication he wanted to do that,” Holder said.
Notice that Holder’s defense here rests on the premise that bin Laden was targeted in the field, meaning, on a battlefield. If an enemy combatant is encountered on the battlefield and he does not surrender, he may be killed or captured — it makes no difference whether he was armed, as bin Laden apparently was not.
Nicely put, Mr McCarthy. But you state, then overlook, the obvious in your detailed review. Mr Holder is, indeed, "a transnational progressive (who)... does not concede the primacy of American law". The whole Obama administration scoffs at the primacy of American law, especially as given in our Constitution.
I'd really like to know whether Holder is working for someone other than 'Team USA', or if he is so blindingly stupid he cannot suss out a reasonable argument to defend the actions of the team who send OBL to the warm place.
Mr. McCarthy, your sense of jurisprudence should serve as a model for all. It is objective and limits itself to the scope of law, not the whimsical interpretations of ideologues.
How does Holder square his reasoning with the foot-dragging in re to the prosecution of the Ft. Hood self-described jihadist, Nidal Hassan? According to Hassan's defense attorney, it is the DOJ that is stonewalling in the pursuit of justice.
I agree with part of this analysis. Bin Laden clearly was a foreign enemy, in a declared war (the post-9/11 AUMF), and killing him in an offensive military operation was clearly justified. Questions about whether the SEALs tried to "capture him alive", etc., are misguided, because this was not a law enforcement operation and capturing him was not the objective. In war, you are allowed to kill the enemy whether he is armed or unarmed; you can kill the enemy in an ambush before he has a chance to react; you can kill him while he's sleeping; you can kill him while he is running away. Unless the enemy makes an affirmative attempt to surrender (which Bin Laden evidently didn't), you can kill him.
I think the Padilla case is an entirely different ball of wax. Here, we're talking about an American citizen, arrested on U.S. soil by U.S. law enforcement. If that's not a "bright line" distinction, I don't know what is. I find the notion that the President can simply declare someone an "enemy combatant", announce that he is beyond the reach of the judicial system and exempt from habeas corpus, and, oh, no I won't show you the evidence because it's "secret", is incredibly chilling.
Do you really want the President to have the power to remove citizens from the reach of the Constitution based on the doctrine of "because I said so"?
You might argue that no president would ever abuse this awesome power to, say, imprison political enemies or pesky journalists without trial, because all of our presidents have been such wonderful, ethical individuals who would never, ever abuse their authority.
If so, you have a hell of a lot more confidence in the Government than I do.
Would anyone -- from the left or from the right -- have cared if Adolf Hitler had been killed during the Allied bombing of his residence (the Berghof) in the spring of 1945?
Of course not.
Case closed.
At a more philosophical level it's a problem of modern day liberalism itself. It's an ideology without roots but rather agendas. That's why it's proponents can never be honest about what they believe*, and why their ideas just don't work when faced with the hard realities of the real world.
* Consider that still less than a week after Bin Laden's execution we're in the double digits as to official after action accounts - many contradictory. Or consider virtually any Obama agenda item and the numerous rationales and excuses offered.
Well NRO's # 3 and 4 hitters (Andy and Mark) never disappoints!
It's surreal that this man is our AG!!..ughhh!! The fact that we find ourselves here is a resounding metric that Progressivism is winning!! Much work to do I'm afraid!!
A declaration of war is Constitutional; nothing talismanic about it. Any other power that Congress exercises to authorize warfare is, at best, extra-Constitutional.
There is yet another problem with Holder's premise. This premise being
"If an enemy combatant is encountered on the battlefield and he does not surrender, he may be killed or captured — it makes no difference whether he was armed, as bin Laden apparently was not."
as you stated in the article. The problem is that this has not always been the case with military rules of engagement under the obama administration. As reported on Foxnews.com soldier in Afghanistan under Gen McCrystal had the following ROE in place:
"The rules, put in place by outgoing Gen. Stanley McChrystal, are classified but generally aim to limit civilian casualties by prohibiting troops from firing unless they're shot at -- or from launching bomb or artillery attacks when civilians are near the target."
I agree we did the right thing by taking OBL out, but it is quite the spectacle watching Holder try to reconcile his previous statements abouth the GWOT with how this Administration has been conducted the GWOT.
It doesn't matter what Eric Holder thinks. He has no jurisdiction here. There is no violation of federal law, it caused harm to no American ctizen anywhere, and it took place outside the legal limits of the United States, which makes it a foriegn policy issue, and therefore outside his authority.
AT BEST BHO and his "adminstration" are schizophrenic, which is a nice way of saying that they have NO IDEA WHAT THEY ARE DOING!!!
BHO gave the order to proceed...big freekin' whup...would anybody who visits NRO done any different???!!! And becuase of this NO BRAINER BHO is now hailed as tough, decisive, a leader et cetera...he simply did HIS JOB!!! FOR ONCE!!!
Eric Holder is the worst person(I believe) to ever hold the office. I think Republicans need to spend a lot of time and effort to rid this country of this man as head of justice.
I agree with Doctor Robert. The administration prefers to base its justification for the killing of OBL in the transnational progressivism McCarthy mentions.
Hillary, who once said, "You are with us or you are against us," also seems to have made the jump from justification based in American legal concepts relating to war and defense to justice based in transnational progressive concepts. Thus, in her speech, the morning after OBL was killed, the use of the terms "anti-terror networks" and "syndicates of terror" - both transnational (or ultranational, or even post-national) concepts if ever there were any.
Are members of Congress awake? NOW is the time for hearings about this administration's foreign policy doctrines.
Thank you for an excellent article. Holder is out of his minor league and with Obama makes up two of the three stooges (no offense to the stooges). Since this administration took office there has been a surreal sense of the United States--like a theatre play one keeps waiting to end. 2012 will hopefully be the final curtain coming down.
The only to explain Holder's behavior is that he is following some agenda which he would rather not avow. Surely Congress has the power and authority to pressure him until he sheds some light on that agenda or leaves the administration.
This is the intellectual and moral problem of all progressives. Since your principles are relative, you will continually searching for explanations for contradictions.
