Nevertheless, it is just silly to claim that the amendment as drafted places all Americans in jeopardy. Unless you are part of that infinitesimal class of American citizens who either carried out 9/11 or have fought with al-Qaeda, the Taliban, or their accomplices in the years since, the amendment has absolutely no bearing on you. That eliminates, oh, about 310 million of us from being covered by McCain-Levin. Even if, for example, you belong to an Islamist group that gets caught trying to blow up a building in, say, Chicago, the amendment does not apply to you if your group has no operational connection to al-Qaeda.
To be sure, the rule of reason must apply: If you belong to an Islamist terror cell (like the enemy defined in the AUMF and McCain-Levin) and you employ terrorism as a method of attack (ditto), it would be appropriate for the authorities to detain you as an enemy combatant for a reasonable amount of time so they can figure out whether you are in fact operationally connected to the enemy. Underwear bomber Umar Farouk Abdulmutallab and Times Square bomber Faisal Shahzad, for example, should have been detained as enemy combatants until it could be determined whether they were enemy operatives — as the former (from al-Qaeda in the Arabian Peninsula) clearly turned out to be, while the case on the latter (from the Pakistani Taliban) is arguable. Again, however, this has nothing whatsoever to do with the vast majority of Americans (or, indeed, of people anywhere), as to whom there is not, nor could there be, a scintilla of suggestion that they may be enemy operatives. That is why, in over ten years of war, the enemy-combatant question has arisen with respect to fewer than half a dozen American citizens, all of whom turned out to have unmistakable terrorist connections.
Which brings us to the next point: McCain-Levin, like the AUMF, does not authorize anything that has not already been permitted by the U.S. courts. The Supreme Court’s World War II case of Ex Parte Quirin
established that there is no constitutional bar to detaining as enemy combatants, and trying by military commission, American citizens who align with the enemy in wartime. The justices reaffirmed this principle in their 2004 Hamdi case
(involving an American citizen who fought for al-Qaeda and the Taliban overseas), and by the Fourth Circuit in 2005 in the Padilla case
(involving an American citizen captured in Chicago on a mission from al-Qaeda to attack U.S. cities). In affirming the government’s authority to detain American citizens who fight for the enemy as military prisoners, McCain-Levin simply codifies what the courts have already validated. Furthermore, it bears emphasis that in this war, unlike in all previous wars, enemy combatants have been given systematic access to the U.S. courts to challenge their military detention and treatment. It is ludicrous to claim, as libertarian extremists do, that the president has been given unchecked power to round up Americans, or anyone else.
Even where McCain-Levin arguably enacts new law, it turns out to be a mirage. The amendment pronounces that all enemy combatants — seemingly including American citizens — may be subjected to trial by military commission under the 2006 Military Commissions Act (MCA), as amended in 2009. When you actually look at the MCA, however, it expressly provides that only alien enemy combatants may be tried by military commission. Given the salience of this jurisdictional limitation, the courts are clearly not going to find that it has been repealed by implication in McCain-Levin. If Congress has any thought of prescribing military commissions for American citizens, lawmakers will have to be forthright and unambiguous about it.