The Real Rules of Detention
Senator Paul has it wrong on how detention works.


Andrew C. McCarthy

Earlier this week, Sen. Rand Paul (R., Ky.) responded to my column from last weekend, which criticized (a) his endorsement of enhanced constitutional protections for alien enemy combatants (the practical effect of his call for a return to pre-9/11 counterterrorism), and (b) his proposals to bar the government from subjecting to indefinite military detention al-Qaeda operatives who happen to be American citizens. Senator Paul’s rejoinder described my first claim as a misleading “strawman,” then rehashed his arguments on behalf of American citizens who join our enemies’ war against us. I’ve already addressed the “strawman” complaint. In this column, I undertake to refute Senator Paul’s arguments against law-of-war detention for American enemy combatants.

Those arguments fare no better in the retelling than they did when the Senate decisively rejected them last week. It is true, as Senator Paul says, that “civil liberties need defenders.” Those defenders, however, are not much good if they don’t even grasp how ordinary law-enforcement works, let alone how civil liberties have historically been subordinated to wartime national-security needs — and I refer here not to faux “needs” like abusive TSA groping of patently non-suspicious Americans, but to the real danger posed by treating traitorous enemy combatants as if they were mere criminals.

Unfortunately, Senator Paul, though a stellar medical doctor, is a law-enforcement dilettante. Have you heard the refrain, “If you see something, say something”? Most Americans appreciate that the authorities mean “something” that arouses reasonable suspicion. Not Senator Paul: He frets about an FBI publication that lists some traits that the public should be alert to — “possession of ‘Meals Ready to Eat,’ weatherproofed ammunition, and high-capacity magazines; missing fingers; brightly colored stains on clothing; paying for products in cash; and changes in hair color.”

Empirically, these traits have coincided with participation in terrorist plots. Acknowledging that unremarkable coincidence, however, does not extinguish our common sense — we also know that the presence of one, two, or even several of these traits may have nothing to do with terrorism. In his paranoia, though, the senator has convinced himself that one or two such indicators, standing alone, could result in American citizens’ being designated as enemy combatants and detained for untold years without trial or due process. The medical analogue would be that, upon spotting a single contusion, a doctor peremptorily diagnoses leukemia and commences aggressive chemotherapy.

Does Senator Paul seriously think the government jumps pell-mell from checking off an item or two on the FBI’s list to incarceration at Gitmo? I hope not. Palpably, the FBI’s point is that if a person spots something he reasonably thinks is suspicious, he should call the FBI. Pace Senator Paul, the agents do not respond by running right out to make an arrest — if, while racing up the Capitol steps, you’ve spilled peach-mango sherbet all over your nice white shirt, no one is going to confuse you with Ayman al-Zawahiri.