Monday night’s debate featured an exchange between Mitt Romney and Rick Santorum regarding the treatment of American citizens who join with our jihadist enemies to make war against our country. Watching it, I got the impression that Santorum was trying to suggest a wedge between himself and Romney where I don’t think there is one — and perhaps making a play for voters who have been spun up by Ron Paul’s spurious claims about the recently enacted National Defense Authorization Act (NDAA). (I addressed those claims in an exchange with the congressman’s son, Sen. Rand Paul, a few weeks back — see here and here).

The answers by both Romney and Santorum to the question posed seemed a bit confused — not really wrong, but incomplete. That is to be expected when candidates are given just a few seconds to address complex issues. 

Romney was asked whether he would have signed the NDAA, as President Obama recently did. The matter is controversial because Paul, like much of the Left, claims it is unconstitutional: It provides for indefinite detention of American citizens if they are found to be enemy combatants. Romney replied that he would have signed the bill, correctly implying that, as the courts have held, American citizens may be detained under the laws of war if they join the enemy during wartime. 

Mitt’s reasoning was not crystal clear. He said that while Americans have every right to express dissent, they do not “have a right to join a group that is killing Americans, and has declared war against Americans. That’s treason. In this country, we have a right to take those people and put them in jail.”

Well, yes, but there’s never been any doubt that treason can result in imprisonment. It is a criminal offense — the only one defined in the Constitution — and it can be prosecuted in the civilian courts. Romney was being asked about military detention. On that score, treason is not the salient point. Nor is it dispositive that al-Qaeda has declared war and is killing Americans — after all, they had declared war against us and started killing Americans years before we began taking military prisoners.

Military detention is legitimate because we are at war and because Congress authorized combat operations right after the 9/11 attacks. This is what invokes the laws of war, under which enemy combatants may be captured and detained indefinitely without trial until the conclusion of hostilities. Congress’s authorization of combat operations necessarily entails the killing and capturing of enemy forces. (Because Congress has authorized military force, there is no need to wrestle with the knottier questions of whether, and under what circumstances, a president may unilaterally order military detention.)

When asked if he wished to respond to Romney, Santorum stated:

First off, I would say this, what the law should be and what the law has been is that if you are a United States citizen and you are detained as an enemy combatant, then you have the right to go to federal court and file a habeas corpus petition and be provided a lawyer. That was the state of the law before the [NDAA] and that should be the state of the law today.
… [I]f you are a citizen and you are being held indefinitely, then you have the right to go to a federal court — and again, the law prior to the [NDAA] was that you had the right to go to a court, and for that court to determine by a preponderance of the evidence whether you could continue to be held. That is a standard that should be maintained and I would maintain that standard as president.

Nothing in Santorum’s answer parts company with Romney. Romney only addressed the fact that the president has the power to detain; he did not delve into the due process owed to the detainee, Santorum’s focus. I’m quite certain Mitt agrees with Rick that an American citizen detained as an enemy combatant has a right to challenge his detention in court. And as for being provided with a lawyer, the courts have strongly suggested that detainees should be given counsel at public expense to challenge their detention, even though there is ordinarily no right to counsel in a habeas case. (As we know, given the legion of lawyers who have volunteered their services to our wartime enemies, the right to counsel has not been much of an issue.)

Santorum is correct that this was the state of the law before the NDAA. It remains the state of the law. By saying it “should” still be the law, Rick implied that there may be cause for concern that the NDAA changed things, but this is not the case.

Under Supreme Court rulings, most recently the Boumediene case, not only American citizen detainees but alien detainees have been given the right to file habeas petitions in federal district court. The Supreme Court somehow found that the U.S. Constitution gave this right to alien terrorists making war against Americans. It is a generally accepted doctrine — one that only Newt Gingrich, among the GOP candidates, has challenged — that when the Supreme Court holds that a right derives from the Constitution, that right may not be repealed by statute. (It would certainly be interesting to know whether Rick and Mitt agree with Newt that the political branches should be able to reverse Supreme Court decisions, but I don’t know that they’ve been asked.)

As it happens, the NDAA attempts no such repeal of detainee rights, but if it had done so, the courts would have struck it down, reasoning that a statute cannot amend the Supreme Court’s construction of the Constitution. So there is no question that U.S. citizens maintain their habeas rights. While Santorum’s commitment to maintain the habeas rights of Americans is admirable, Americans would maintain these rights regardless of the next president’s views. The main point of habeas corpus is to guard against lawless executive action; the protection is guaranteed by the Constitution and does not depend on executive indulgence. 

Finally, a word about Ron Paul, who responded to the Romney/Santorum exchange by saying of the NDAA, “This is major. This says that the military can arrest an American citizen for under suspicion [sic], and he can be held indefinitely, without habeas corpus, and be denied a lawyer indefinitely even in a prison here.”

This is just a demagogic rant — the NDAA says no such thing. The NDAA does not permit the military to arrest anyone inside the U.S. — though the Paul forces constantly repeat that claim, the NDAA says only that enemy combatants will be detained in military custody, not that the military will do the arresting if the combatant happens to be an American citizen captured in the U.S. (Think Jose Padilla, who was detained by the military after being designated an enemy combatant following his arrest by the FBI in Chicago.) The NDAA gives the military no new authority to operate inside our country. Furthermore, as noted above, while detention under the laws of war is “indefinite” in the sense that wars do not come with an end date, all detainees have the right to seek habeas corpus relief from the civilian federal courts and none has been denied counsel for this purpose.