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A Very Nice Man, but a Constitutional Quack



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I have written harsh things over the years about Fox News legal analyst Andrew Napolitano, a former New Jersey state court judge. I’ve not liked doing so because he is about as charming and gracious a guy as you’ll meet. But his commentary on the Constitution — the subject Fox markets him as an expert on — is frequently ill-informed, and his meanderings on the combatant-detainee custody provisions (the McCain-Levin amendment) in the defense authorization bill have been irresponsible.

Some of this is addressed in my column from a few days ago, and in my upcoming weekend column, I’ll have a lot more to say about the position staked out by Judge Napolitano, more significantly, Sen. Rand Paul. For the moment, though, having just endured more Napolitano malpractice (on Fox & Friends this morning), I’m compelled again to address his constitutional quackery. He claims that McCain-Levin empowers the president to unleash the U.S. armed forces on our homeland and round up American citizens on mere executive say-so. This is just not true. A few counterpoints: 

1. Napolitano either can’t read or doesn’t understand the difference between arrest and detention. McCain-Levin does not address the power to apprehend someone. It addresses how persons apprehended by the authorities are thereafter to be detained if they fit the statutory definition of “covered persons” (i.e., unlawful enemy combatants). Posse comitatus — the doctrine that restricts military operations inside the United States — is not changed at all by the amendment. Domestic investigations and arrests are still to be handled by the FBI and other law-enforcement authorities; the military still limits itself to combat ops overseas. This is exactly how things worked pre-McCain-Levin: In 1942, American citizen combatant Hans Haupt was captured by the FBI inside the U.S. and ordered detained as an enemy combatant by FDR. In 2002, American citizen combatant Jose Padilla was captured by the FBI inside the U.S. and ordered detained as an enemy combatant by Bush 43. The fact that they were detained as enemy combatants under the law of war did not mean the military would have been authorized to capture them in the first place.

2. As the Haupt and Padilla examples demonstrate, the president already has authority (in the ongoing war, under the 2001 authorization for the use of military force (AUMF)), to detain American citizens as enemy combatants. McCain-Levin does nothing to change that, and even if the McCain-Levin did not pass, the president would still have this authority.

3. Napolitano said that, under McCain-Levin, the president gets to detain without trial any American citizen he decides is a terrorist. This is not true. The president can only order the military detention of individuals who fit the definition of “covered person” (i.e., enemy combatant) prescribed by Congress. This excludes not only the overwhelming majority of Americans but even most terrorists. To be a covered person, an individual must either have (a) participated in the 9/11 attacks ten years ago, or (b) be part of, or have meaningfully abetted, not just any terrorist organization but, specifically, al Qaeda, the Taliban, or one of their affiliates who has aligned with them in waging their ongoing war against the U.S. Even if you are a terrorist plotting to blow up an American city, you are not an enemy combatant if you’re not operationally connected to al Qaeda and you had nothing to do with 9/11 (which is the situation of most “homegrown” terrorists arrested in the U.S. in the last decade). That is why, out of 310 million American citizens, the number of those designated enemy combatants in the last 10 years is … four.

4. McCain-Levin says that alien enemy combatants captured overseas must be detained by the military indefinitely, under the laws of war (i.e., they can’t be transferred to the U.S. justice system for trial). But it does not require the president to detain either American citizens or lawful resident aliens as enemy combatants — the president may do so, but he may also send them to the civilian justice system. This is exactly the way things have worked for the last ten years: e.g., President Bush first decided to designate Padilla as an enemy combatant, then later decided to transfer him to the civilian system. McCain-Levin changes nothing in this regard.

5. Napolitano claims that by allowing the president unilaterally to designate even American citizens as enemy combatants, McCain-Levin radically departs from the constitutional norms. This is patently false. The radical departure from the Constitution is the notion that courts get to decide who is an enemy combatant. Somehow, Napolitano never tells viewers that (a) the commander-in-chief and the military have always been supreme among the branches in determining who is an enemy (within the parameters of congressional definitions of the enemy under authorizations of military force); and (b) the Supreme Court in the Quirin (1942) and Hamdi (2004) cases held that the president has constitutional power to designate and detain even American citizens as enemy combatants during wartime.

6. Napolitano finally suggests to viewers that the president’s power to designate enemy combatants is unfettered under McCain-Levin. That, too, is patently false. As noted above, the president may not detain just anyone — even an arrested terrorist must fit the definition of “covered persons” (participation in 9/11 or meaningful operational support of al Qaeda and its allies). Moreover, there is extensive due process attendant to the designation: it is vetted thoroughly in hearings in the military justice system, after which — based on the Detainee Treatment Act of 2005, the Military Commissions Act of 2006 (as amended in 2009), and the Supreme Court’s 2008 Boumediene case — the detainee may appeal his designation to the U.S. district court, the U.S. Court of Appeals, and finally the U.S. Supreme Court.

Other than that, the Judge really knows his stuff.



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