Andrew Napolitano’s Mistake
The McCain-Levin amendment does not authorize civil-liberties violations.


Andrew C. McCarthy

Moreover, even if there were not an insuperable jurisdictional hurdle to trying citizens by commission, McCain-Levin turns out to be appropriately circumspect when it comes to American nationals. Although its overriding purpose is to pressure the Obama administration to abandon its preferred course of turning enemy combatants over to the civilian justice system, the amendment takes pains to carve out an exception for U.S. citizens. The amendment states that its directive that combatants must be detained by the military under the law of war “does not extend to citizens of the United States.” Nor, in fact, does it apply to lawful resident aliens in cases involving hostile conduct occurring inside our borders. While the commander-in-chief would still be permitted under the law of war to order military detention for Americans who join the enemy, the president would not be required to do so. If he wanted to resort to civilian due process, as Obama does, he would have that option.

In sum, the McCain-Levin amendment is marginally beneficial but hardly a bombshell. It reiterates that the law of war is the American people’s preferred legal code for dealing with those designated as the enemy in the war that Congress has authorized: al-Qaeda, the Taliban, and their affiliates. It is also helpful in reaffirming that alien enemy combatants should continue to be held outside the United States and that the administration may not transfer them to the federal courts to be treated as civilian defendants.

Again, however, neither of those things changes the status quo. Nor is there any change in the wartime rights of American citizens: If they fight for the enemy, they may be treated like the enemy; but if they have no connection to the enemy, they continue to enjoy the full panoply of protections afforded by the civilian justice system. Suggestions to the contrary are false.

— Andrew C. McCarthy, a senior fellow at the National Review Institute, is the author, most recently, of The Grand Jihad: How Islam and the Left Sabotage America.


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