Justice Robert Jackson, the U.S. attorney general before FDR elevated him to the Supreme Court, famously remarked that the Constitution is not a suicide pact. Today, it’s hard to see why not.
The United States Court of Appeals for the Fourth Circuit ruled on Monday that Ali Saleh Kalah al-Marri — an alien al Qaeda operative from Qatar, sent to the United States the day before 9/11 to conduct follow-up attacks and explore the potential for electronic disruptions of our reeling nation’s financial system — may not lawfully be detained as an enemy combatant in the war on terror.
According to the court, we have two options: Release al-Marri and thus enable him to rejoin the jihad; or try him in the civilian criminal-justice system, where he’d be entitled to — and able to share with his confederates — the fruits of discovery from U.S. intelligence files detailing the enemy’s capabilities and plans.
The United States is not at war with the uniformed army of a sovereign nation like Germany or Japan. But we are still at war — with a transnational terror network, whose jihadist operatives are often, but not always, abetted by enemy nations.
In the immediate aftermath of 9/11, when common sense and caution still dictated national-security policy, Congress passed the sweeping Authorization for Use of Military Force against this new threat. Adding another layer to the executive branch’s inherent constitutional powers, the AUMF empowered the president to use “all necessary and appropriate force against those nations, organizations or persons” involved in the 9/11 attacks, as necessary to “prevent future acts of international terrorism against the United States[.]”
The wartime use of force obviously includes the detention of enemy combatants, as the Supreme Court found in its 2004 Hamdi decision. Such detentions are sanctioned by laws of war older than the United States, customs that permit the detention of enemy operatives for the collection of intelligence and depletion of enemy assets. These are standards designed to end wars justly, humanely, and more promptly.
As a member of an al Qaeda sleeper cell, al-Marri was just such an enemy combatant, the commander-in-chief had found. Though lawfully in the United States on a student visa, he was in communication with 9/11 mastermind Khalid Sheikh Mohammed, among others.
Since al-Marri’s efforts were acts of war rather than mere crimes, President Bush ordered him held as an alien unlawful enemy combatant. But now the Fourth Circuit has substituted the commander-in-chief’s wartime judgment with its own. Two judges — Diana Gribbon Motz, a Clinton appointee, and Roger Gregory, an unsuccessful Clinton appointee renominated by President Bush in a good-will gesture to Democrats — ordered that al-Marri be released or referred to the civilian-justice system for a full-fledged criminal trial.
Astoundingly, Justices Motz and Gregory did not doubt that al-Marri was just as dangerous as the administration claims him to be. Instead, they found that because al Qaeda is not a traditional national enemy, its operatives — stationed here in the United States to kill Americans — are mere civilians, not combatants.
By their lights, even 9/11 ringleader Mohamed Atta wasn’t a combatant. Despite his enlistment in an organization waging war on America that had trained him and sent him here, he was just a civilian.
Dissenting district judge Henry E. Hudson, sitting by designation from the Eastern District of Virginia, had it right: We are at war and Congress has authorized the president to use force against enemy operatives, including, as necessary, to detain them. Jihadists needn’t be part of a militia attached to a traditional national army to be such operatives. Nor, in this asymmetrical war, need they be captured on a traditional battlefield outside the United States. Indeed, those captured inside our country are the most dangerous of all. In the war on terror, the battlefield is wherever al Qaeda launches its next attack.
The administration is studying the opinion. It should require little study to know this ruling must be appealed, and reversed.