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


Andrew C. McCarthy

I really hope tea-party groups resist taking legal counsel from hysterions such as Fox News’s resident constitutional “expert,” Andrew Napolitano. On Tuesday morning, “the Judge” could be heard on the news railing about the McCain-Levin amendment to the defense-authorization bill (an amendment strongly supported by Senators Lieberman, Graham, Ayotte, and others). Napolitano contended that Congress is proposing to turn the entire globe into a battlefield and give President Obama the authority to have the U.S. armed forces swoop down on American cities and towns, arbitrarily detaining U.S. citizens on the mere say-so that they are enemies of the state. These contentions are absurd.

The only real question about the McCain-Levin amendment is whether it is necessary at all. It does not change existing law in any meaningful way. Essentially, it reaffirms the authority Congress conferred on the commander-in-chief in the Authorization for Use of Military Force (AUMF) that was enacted days after the 9/11 attacks.

Most Americans will recall that those attacks killed nearly 3,000 of our fellow citizens in the course of suicide-hijacking strikes on the financial district in New York City and the U.S.-military headquarters in Virginia, as well as an attempted decapitation strike against U.S. political leadership in Washington. Most Americans will recall that, from coast to coast, cities and towns have been targets of numerous attempted enemy attacks in the ensuing decade. We’ll also remember that these plots against our country have occurred against a backdrop of al-Qaeda attacks in Europe, Asia, and Africa.

That is to say, no act of Congress turned the United States and the globe into a battlefield. Al-Qaeda did that. The terror network declared war against America, threatening our interests and citizens throughout the world. Its tactic of choice is terrorist atrocities — carried out at any time in any place against any target, civilian or military.

With the enemy subjecting itself to no geographical or temporal limitations, Congress and the president have to follow suit in our national response — if we are to protect ourselves, let alone defeat our enemies. Thus, the AUMF prescribes no such limitations. It authorizes combat operations anywhere the enemy operates. The McCain-Levin amendment does not break any new ground on that score. The law of war has been in operation in this fashion for ten years.

Significantly, though, combat operations — which, of course, include the capture and disposition of enemy combatants — are not authorized indiscriminately against just anyone. Under the AUMF and McCain-Levin, detention and trial under the laws of war are narrowly prescribed only for those fighting with or aiding and abetting the enemy. And we are not talking about any prospective enemy that happens to pop into the head of President Obama or any future president, such as an administration’s political detractors. To be covered under McCain-Levin, a person must have either participated in the 9/11 attacks or have been involved in hostilities against the U.S. on behalf of “al-Qaeda, the Taliban, or associated forces.”

As I’ve argued before, it is high time for Congress to amend the AUMF so that other factions known to be part of the enemy — e.g., the Haqqani network, the Pakistani Taliban, al-Qaeda’s arguably new franchises in Iraq, Yemen, and elsewhere — are expressly included as part of the enemy. It is regrettable that McCain-Levin does not take this step; doing so would have marked a meaningful improvement on the AUMF.