I’ve been out of pocket for a few days, traveling through bad weather and speechifying at the Fifth Circuit Judicial Conference in Mobile — where the people, including many big Corner fans, could not have been more gracious. As a result, I haven’t had time to weigh in much on the Times Square plot, though I will have a column on it soon.
I don’t agree with the way the administration has handled the case, for reasons I’ll explain in the column. At the same time, I don’t think what they’ve done is unreasonable. The case is complicated by two things: (a) the defendant, Faisal Shahzad, is an American citizen, and (b) his ties to the enemy are murky at best. For now, it’s the second point on which I want to focus.
“The enemy” is highlighted because we need to sort out a few things. There is “the enemy” by which we are confronted in a longterm civilizational struggle, and that is Islamism (sometimes called “political Islam,” radical Islam,” “sharia Islam” and other variations). All Islamists are dedicated to the spread of sharia (Islamic law), which they see as the necessary precondition to Islamicizing a society. The method of spreading sharia is jihad — which can be violent or non-violent (i.e., there’s no need to fight when the other side capitulates).
For our legal purposes, we should see the violent jihadists as comprised of a greater group and a subset of that group. The greater group, very simply, consists of all Muslims who commit and support terrorism. The subset consists of the particular terrorists, terrorist entities, and terrorist nations that are described in Congress’s Authorization for the Use of Military Force (AUMF), dated September 18, 2001. While it is appropriate colloquially to call both these groups as “the enemy,” only one is “the enemy” for purposes of the laws of war – and that is the latter, subset group.
Why is this so important today? Well, to detain someone as an enemy combatant, he has to fit the AUMF definition of the enemy. Al Qaeda members do, but, for example, if an Islamist cell sprang up tomorrow in Michigan, and it was sympathetic to but otherwise unconnected with al Qaeda, its members would not – if they tried to bomb a city, they would have to be handled as regular criminal defendants.
According to the latest revelations, Shahzad, a native of Pakistan, may have been working with elements of the Pakistani Taliban in the Times Square attack. There is a very good argument that the Pakistani Taliban is not included in the AUMF’s description of the enemy. According to the AUMF, force is authorized against:
those nations, organizations, or persons [the president] determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.
To be sure, there is plenty of cross-pollination and collaboration between the Afghan Taliban and the Pakistani Taliban. Indeed, Baitullah Mehsud, the leader of the Pakistani Taliban until what we believe was his death in a U.S. drone attack in August 2009, was a member of the Afghan Taliban (having gotten his start, like many Pakistani jihadists of his age, by fighting with the Afghan mujahideen against the Soviets). That said, though, the two organizations are generally taken to be separate and independent – and, while the Afghan Taliban came into being in the early nineties and harbored al Qaeda from 1996 through October 2001, most experts agree that the Pakistani Taliban (Tehrik-i-Taliban Pakistan) did not start until 2007, in reaction to the Pakistani military’s incursion into the country’s tribal regions (see, e.g., this Council on Foreign Relations analysis, here).
There is currently great gnashing of congressional teeth, particularly on the Republican side, over the Obama administration’s decision to treat Shahzad as a regular criminal defendant and thus to give him Miranda warnings and counsel after a few hours of non-Mirandized interrogation. I agree that the administration should have held Shahzad as an enemy combatant until it could sort out whether he was, in fact, with the enemy. But what if it turns out that Shahzad is affiliated with the Pakistani Taliban but has no ties to the Afghan Taliban or al Qaeda? There would then be a profound legal question about whether we had the authority to detain him as a war prisoner – and the problem would be exacerbated by the fact that he is an American citizen.
There is a simple solution. The AUMF should be amended to include the Taliban organizations in Pakistan and Afghanistan. The current AUMF is nearly nine years old. A lot has changed. Back in 2001, we did not want to go to war with Afghanistan and its then-government, the Taliban. We did it only because they refused to hand al Qaeda over to us. Now, having been chased out of Pakistan, much of al Qaeda is holed up in Pakistan, colluding with Pakistani Taliban, Afghan Taliban, and other Pakistani terror groups. Meantime, our primary reason for still having our forces in Afghanistan is to ward off the Afghan Taliban – in the hope that the new Afghan government will mature, become independent, and resist giving al Qaeda safe-harbor in the future.
The AUMF should be amended to reflect this current reality of the war. We are conducting military operations in Pakistan. Yes, they can be justified under the old AUMF (and the president’s constitutional authority), but there is no good reason not to make things more clear and clean. It would not only bolster the legitimacy or our operations, it would also be an opportunity for Congress to endorse military detention and military commission trials for operatives – including American citizens – of the different Taliban organizations. It would not compel the administration to use military detention, but it would give the president the clear option to do so.
And if he made use of that option, even for a few weeks in any given case, we would not have to have a divisive national Miranda debate every time a terrorist potentially affiliated with our wartime enemies attempted to attack us.