Much as I hesitate to do this, I will take slight issue with Victor on the matter of killing Americans who fight for the enemy in wartime. Let me preface this by saying I concur completely with Victor’s contention that the procedures adopted by the Obama administration are lacking — something I’ll have more to say about in my weekend column. But I respectfully suggest that there is more to the context of this debate than Victor suggests.
It is true, of course, that our jihadist enemies do not present as uniformed soldiers. There may be less to this distinction than meets the eye, though. In the debate over this subject, the most ubiquitous of the examples of Americans killed fighting for the Nazis comes from the famous Supreme Court case of Ex Parte Quirin (1942). He is Hans Haupt, one of several Nazi saboteurs who infiltrated the U.S. in 1942 by secretly landing on Long Island and Ponte Verde Beach.
The interesting thing about that for present purposes is that, once ashore, they shed their uniforms. (By the way, Judge Mukasey had a very interesting explanation of why they did this in his district court opinion in the 2002 case of another American enemy combatant, Jose Padilla. See Padilla v. Bush (SDNY 2002), Op. p. 62 & n. 12 — link here.) When the Nazis were captured days later — by the FBI, not the military — they were wearing civilian clothes and not in the act of carrying out any of the terrorism they had plotted. Despite the fact that Haupt was an American and that the U.S. courts were open and functioning, FDR had them designated as enemy combatants, tried by military commission, and put to death (i.e., Haupt and five others, all German nationals, were executed; others who had cooperated were given lengthy sentences).
I agree with Victor that most of the considerations pertinent to handling a uniformed (lawful) combatant are significantly different from those involved in handling non-uniformed terrorists (unlawful combatants). There is, however, a preliminary consideration that is common and highly relevant to both. It is this: Is it permissible under our Constitution knowingly and intentionally to kill an American citizen under circumstances where Congress has not suspended the writ of habeas corpus, and where there has been no judicial determination of guilt?
That is an extremely close question. Indeed, Justice Scalia, in a forceful dissent joined by Justice Stevens in the 2004 Hamdi case, said the answer should be no and strongly suggested that Quirin (which he called “not this Court’s finest hour”) was wrongly decided. Nevertheless, Quirin remains the law, reaffirmed by the Hamdi majority (a plurality opinion by Justice O’Connor, with the fifth vote provided by the opinion of Justice Thomas, which is somewhat oddly recorded as a “dissent”).
I take Victor as essentially addressing the practical reasons why we should have different guidelines for American unlawful enemy combatants versus American lawful enemy combatants. Still, the Nazi saboteur example will always be an apt one because the first question has to be the Constitutional question.
Let’s put aside battlefield situations, where, naturally, we don’t find out until after attacking that an enemy combatant killed by our forces was an American. In the situation we’re concerned with here, there would be no cause to make guidelines for American enemy combatants, uniformed or terrorist, if the Constitution were construed to forbid the knowing and intentional killing of an American citizen in wartime, under circumstances where habeas corpus has not been suspended and there has been no judicial determination of guilt.
The problem with the debate we’ve been having for a number of years, and the reason the Nazis keep coming up despite their obvious differences from al Qaeda, is that people on the Left and the libertarian Right make their arguments as if Quirin were not the law. But Quirin is the law.