I appreciated Andrew McCarthy’s post below. Ex Parte Quirin is still governing law, and its key holding is instructive:
Citizenship in the United States of an enemy belligerent does not relieve him from the consequences of a belligerency which is unlawful because in violation of the law of war. Citizens who associate themselves with the military arm of the enemy government, and, with its aid, guidance and direction, enter this country bent on hostile acts, are enemy belligerents within the meaning of the Hague Convention and the law of war.
As a matter of constitutional law and military reality, I would argue that even Quirin understates the strength of the administration’s legal position. Quirin dealt with already-captured combatants — who are in custody and no longer a threat — not with actual combat decisions. In combat operations, the constitutional power of the commander-in-chief, acting pursuant to a declaration of war, is at its apex.
We already inject multiple layers of military legal review in our targeting process — in defining the rules for targeting, defining the targets themselves, and in executing attacks on targets. But excessive legal intrusion can cost lives. If anyone wants to further understand the tragedies that can result from excessive rule-based targeting timidity, I’d suggest they read Bing West and Dakota Meyer’s new book.
Finally, while I hesitate to disagree with Professor Hanson, the Cold War analogy isn’t legally applicable to al-Qaeda targets. We were not in a state of declared war with the Soviet Union. We are with al-Qaeda, and as I explained in my post Wednesday, a declaration of war (a state of “armed conflict”) changes the legal paradigm. Further, it should be the policy and practice of the United States that we do not permit our enemies to use their violations of the laws of war, such as refusing to wear uniforms or other distinctive insignia, to their legal advantage.
So, yes, there is a difference between a uniformed American Nazi and an American member of al-Qaeda in civilian clothes — the uniformed Nazi would enjoy more legal protection, not less.