I really hope tea-party groups resist taking legal counsel from hysterions such as Fox News’s resident constitutional “expert,” Andrew Napolitano. On Tuesday morning, “the Judge” could be heard on the news railing about the McCain-Levin amendment to the defense-authorization bill (an amendment strongly supported by Senators Lieberman, Graham, Ayotte, and others). Napolitano contended that Congress is proposing to turn the entire globe into a battlefield and give President Obama the authority to have the U.S. armed forces swoop down on American cities and towns, arbitrarily detaining U.S. citizens on the mere say-so that they are enemies of the state. These contentions are absurd.
The only real question about the McCain-Levin amendment is whether it is necessary at all. It does not change existing law in any meaningful way. Essentially, it reaffirms the authority Congress conferred on the commander-in-chief in the Authorization for Use of Military Force (AUMF) that was enacted days after the 9/11 attacks.
Most Americans will recall that those attacks killed nearly 3,000 of our fellow citizens in the course of suicide-hijacking strikes on the financial district in New York City and the U.S.-military headquarters in Virginia, as well as an attempted decapitation strike against U.S. political leadership in Washington. Most Americans will recall that, from coast to coast, cities and towns have been targets of numerous attempted enemy attacks in the ensuing decade. We’ll also remember that these plots against our country have occurred against a backdrop of al-Qaeda attacks in Europe, Asia, and Africa.
That is to say, no act of Congress turned the United States and the globe into a battlefield. Al-Qaeda did that. The terror network declared war against America, threatening our interests and citizens throughout the world. Its tactic of choice is terrorist atrocities — carried out at any time in any place against any target, civilian or military.
With the enemy subjecting itself to no geographical or temporal limitations, Congress and the president have to follow suit in our national response — if we are to protect ourselves, let alone defeat our enemies. Thus, the AUMF prescribes no such limitations. It authorizes combat operations anywhere the enemy operates. The McCain-Levin amendment does not break any new ground on that score. The law of war has been in operation in this fashion for ten years.
Significantly, though, combat operations — which, of course, include the capture and disposition of enemy combatants — are not authorized indiscriminately against just anyone. Under the AUMF and McCain-Levin, detention and trial under the laws of war are narrowly prescribed only for those fighting with or aiding and abetting the enemy. And we are not talking about any prospective enemy that happens to pop into the head of President Obama or any future president, such as an administration’s political detractors. To be covered under McCain-Levin, a person must have either participated in the 9/11 attacks or have been involved in hostilities against the U.S. on behalf of “al-Qaeda, the Taliban, or associated forces.”
As I’ve argued before, it is high time for Congress to amend the AUMF so that other factions known to be part of the enemy — e.g., the Haqqani network, the Pakistani Taliban, al-Qaeda’s arguably new franchises in Iraq, Yemen, and elsewhere — are expressly included as part of the enemy. It is regrettable that McCain-Levin does not take this step; doing so would have marked a meaningful improvement on the AUMF.
Nevertheless, it is just silly to claim that the amendment as drafted places all Americans in jeopardy. Unless you are part of that infinitesimal class of American citizens who either carried out 9/11 or have fought with al-Qaeda, the Taliban, or their accomplices in the years since, the amendment has absolutely no bearing on you. That eliminates, oh, about 310 million of us from being covered by McCain-Levin. Even if, for example, you belong to an Islamist group that gets caught trying to blow up a building in, say, Chicago, the amendment does not apply to you if your group has no operational connection to al-Qaeda.
To be sure, the rule of reason must apply: If you belong to an Islamist terror cell (like the enemy defined in the AUMF and McCain-Levin) and you employ terrorism as a method of attack (ditto), it would be appropriate for the authorities to detain you as an enemy combatant for a reasonable amount of time so they can figure out whether you are in fact operationally connected to the enemy. Underwear bomber Umar Farouk Abdulmutallab and Times Square bomber Faisal Shahzad, for example, should have been detained as enemy combatants until it could be determined whether they were enemy operatives — as the former (from al-Qaeda in the Arabian Peninsula) clearly turned out to be, while the case on the latter (from the Pakistani Taliban) is arguable. Again, however, this has nothing whatsoever to do with the vast majority of Americans (or, indeed, of people anywhere), as to whom there is not, nor could there be, a scintilla of suggestion that they may be enemy operatives. That is why, in over ten years of war, the enemy-combatant question has arisen with respect to fewer than half a dozen American citizens, all of whom turned out to have unmistakable terrorist connections.
Which brings us to the next point: McCain-Levin, like the AUMF, does not authorize anything that has not already been permitted by the U.S. courts. The Supreme Court’s World War II case of Ex Parte Quirin established that there is no constitutional bar to detaining as enemy combatants, and trying by military commission, American citizens who align with the enemy in wartime. The justices reaffirmed this principle in their 2004 Hamdi case (involving an American citizen who fought for al-Qaeda and the Taliban overseas), and by the Fourth Circuit in 2005 in the Padilla case (involving an American citizen captured in Chicago on a mission from al-Qaeda to attack U.S. cities). In affirming the government’s authority to detain American citizens who fight for the enemy as military prisoners, McCain-Levin simply codifies what the courts have already validated. Furthermore, it bears emphasis that in this war, unlike in all previous wars, enemy combatants have been given systematic access to the U.S. courts to challenge their military detention and treatment. It is ludicrous to claim, as libertarian extremists do, that the president has been given unchecked power to round up Americans, or anyone else.
Even where McCain-Levin arguably enacts new law, it turns out to be a mirage. The amendment pronounces that all enemy combatants — seemingly including American citizens — may be subjected to trial by military commission under the 2006 Military Commissions Act (MCA), as amended in 2009. When you actually look at the MCA, however, it expressly provides that only alien enemy combatants may be tried by military commission. Given the salience of this jurisdictional limitation, the courts are clearly not going to find that it has been repealed by implication in McCain-Levin. If Congress has any thought of prescribing military commissions for American citizens, lawmakers will have to be forthright and unambiguous about it.
Moreover, even if there were not an insuperable jurisdictional hurdle to trying citizens by commission, McCain-Levin turns out to be appropriately circumspect when it comes to American nationals. Although its overriding purpose is to pressure the Obama administration to abandon its preferred course of turning enemy combatants over to the civilian justice system, the amendment takes pains to carve out an exception for U.S. citizens. The amendment states that its directive that combatants must be detained by the military under the law of war “does not extend to citizens of the United States.” Nor, in fact, does it apply to lawful resident aliens in cases involving hostile conduct occurring inside our borders. While the commander-in-chief would still be permitted under the law of war to order military detention for Americans who join the enemy, the president would not be required to do so. If he wanted to resort to civilian due process, as Obama does, he would have that option.
In sum, the McCain-Levin amendment is marginally beneficial but hardly a bombshell. It reiterates that the law of war is the American people’s preferred legal code for dealing with those designated as the enemy in the war that Congress has authorized: al-Qaeda, the Taliban, and their affiliates. It is also helpful in reaffirming that alien enemy combatants should continue to be held outside the United States and that the administration may not transfer them to the federal courts to be treated as civilian defendants.
Again, however, neither of those things changes the status quo. Nor is there any change in the wartime rights of American citizens: If they fight for the enemy, they may be treated like the enemy; but if they have no connection to the enemy, they continue to enjoy the full panoply of protections afforded by the civilian justice system. Suggestions to the contrary are false.
— Andrew C. McCarthy, a senior fellow at the National Review Institute, is the author, most recently, of The Grand Jihad: How Islam and the Left Sabotage America.