The Tea Party’s limited-government, constitutional heart is in the right place. But it needs much better guidance about how the Constitution works in wartime.
The defense-authorization bill currently under congressional consideration contains some unremarkable, largely redundant provisions about the treatment of enemy combatants. Naturally, the now-familiar alliance of leftists and libertarian extremists — self-proclaimed “constitutionalists” all — attacked with their signature “sky is falling” equanimity. On Wednesday, my column addressed some of the more hysterical arguments posited by Fox News analyst Andrew Napolitano. The real action, however, was taking place on the Senate floor, where Tea Party favorite Rand Paul (R., Ky.) squared off against John McCain (R., Ariz.), leader of the Republican party’s transnational-progressive wing. Sen. McCain, along with another tranzy, Sen. Carl Levin (D., Mich.), sponsored the detention provisions — which are thus collectively known as the McCain-Levin amendment.
Now, the fact that two progressives propose a bill does not necessarily make it wrong, but it can make their defense of it inscrutable. Video footage hyped by Reason magazine shows the folly of giving Senator McCain the laboring oar. He is a populist, out of his depth arguing constitutional issues. Perhaps more important, he is an enthusiastic believer in the alchemic power of “democracy” (or, at least, democratic processes such as elections and constitution-writing) to tame the most virulently anti-Western Islamic backwaters — no doubt owing to the fact that he seems less versed in Islamist ideology than he is in constitutional law.
In my humble opinion (okay, okay, not so humble — but one I’ve spent years developing), historians will look back on the democracy project as the most damaging national-security development in the post-9/11 era. For one thing, it will be seen as the policy that vested such dangerously misplaced Tea Party credibility in libertarian extremists such as Senator Paul and Judge Napolitano, who, under the Orwellian guise of “constitutionalism,” seek to vest our wartime enemies with the rights and privileges of American citizens (to the full peacetime extent of those rights and privileges).
The quest to quell Islamists by democratic processes has only empowered them. It has done nothing to enhance our security against terrorism. It has wasted hundreds of billions of dollars during a time of economic strife. It has actually provoked our enemies, whose ideology — which partisans such as McCain urge us to ignore — calls for waging violent jihad against Western forces that try to implant Western principles in Islamic lands. It has enabled rabidly anti-American Islamists throughout the Middle East to market themselves as “moderate political parties” and bask in the legitimacy the “international community” confers on electoral success — no matter how fraudulently achieved. It has cheapened true Western democracy by accommodating it to authoritarian sharia.
Worst of all, the Islamic-democracy project has sapped the political will of the American people to take actions that are actually necessary to our defense. Democracy fetishists have worn threadbare the public’s patience. Why confront Iranian aggression or Pakistani duplicity, they wonder, if the price-tag is endless years of nation-building masquerading as warfare? Why bother if our troops are hamstrung in combat, put at risk by rules of engagement that prioritize the safety of ungrateful populations? Why mortgage our children’s future if the pot of gold at the end of the rainbow is a sharia state that despises America?
In their disaffection over the gargantuan waste that has been passed off as vital national-security spending, many Americans — in particular, many well-meaning tea-party groups dedicated to restoring our nation’s limited-government moorings — have erroneously lumped authentic national-security needs into their otherwise well-founded indictment of the monstrously expensive and expanding federal usurpation of individual liberty and state sovereignty. The Big Government pendulum is swinging back with a vengeance: Americans are increasingly sympathetic to the argument that any exercise of central government power — even in legitimate pursuit of national defense, the primary mission for which the framers formed the national government — is part and parcel of the progressive project to undermine freedom. They now lend an open ear to anti-constitutional claims by the likes of Paul and Napolitano — and convince themselves that these characters are scoring points because respondents like McCain are inept.
Well, here are some basic constitutional facts: The United States Constitution is a compact between the American people and the government they created. It endows Americans with protections against U.S.-government overreach. It does not extend to the rest of the world. The central government was created, in large measure, to protect Americans from hostile foreign actors. The Constitution does not grant aliens outside the United States — especially alien combatants who levy war against the American people — the protections American citizens enjoy against U.S.-government infringement on their lives, liberties, and property.
Furthermore, the framers understood that international relations — and particularly relations between the United States and hostile foreign actors — were political in nature, not legal. These relations, and decisions about the degree to which security made demands on the liberty of American citizens, were to be the province of the political branches — the government officials who were accountable to the American people and who could be removed if they abused their power or exercised poor judgment. The federal judiciary, which was intentionally insulated from politics, was to have no role in matters related to international relations, national security against foreign threats, or the conduct of war.
Claiming the “constitutionalist” mantle, Senator Paul is currently crusading against the concept of indefinite detention for enemy combatants under the laws of war. It is a deprivation, he claims, of the Constitution’s guarantee of due process. And once the government succeeds in rolling back such guarantees, he insists, they are never restored.
As a matter of constitutional law and of history, this is nonsense on stilts. The framers would have been appalled by Paul’s premise that the Constitution endows alien enemy combatants with the due-process rights of American citizens, particularly combatants who are detained outside the United States, where the writ of neither federal nor state judges runs. The only thing the framers might have found more appalling is the notion that the Constitution licenses lawfare — i.e., that it permits the American people’s courts (which, other than the Supreme Court, are creatures of statute not required by the Constitution) to be used by foreign enemies to put on trial the armed forces of the American people over the manner in which they conduct wartime combat operations that have been authorized by the American people’s representatives (indeed, overwhelmingly authorized, because after almost 3,000 of us were slaughtered on 9/11, the public broadly demanded that the enemy be subdued).
Paul is attacking the McCain-Levin amendment as if it broke new ground. But the amendment only reaffirms what the Constitution has always provided: Congress has the power to authorize combat operations against foreign enemies, and when it does so, the law of war governs those operations — except to the extent Congress modifies that venerable corpus. Under the law of war, enemy combatants may be detained indefinitely, which is to say, until either (a) hostilities have concluded, or (b) Congress withdraws the authorization of military force, effectively returning us to peacetime conditions.
Paul’s counterclaims are utterly meritless. He argues that our current hostilities against al-Qaeda and its allies are unique in that there is no end in sight. But no war in history has come with an expiration date. The United States has thus detained without trial millions of alien prisoners — not just alien combatants but nationals of the enemy state, held solely because their citizenship implied fealty to our foes.
To be sure, a war against transnational terrorists who systematically violate the laws of war by failing to identify themselves as combatants and by targeting civilian populations is different — and in many ways more difficult to prosecute — than war against a traditional nation-state. Still, as noted above, the Constitution empowers Congress to account for this by adjusting the law of war to the peculiarities of a given conflict.
Thus, in the current war, for the first time in our history, Congress has given enemy combatants systematic access to the courts of the United States to challenge their designation as enemy combatants and their trial by military commission — a traditional law-of-war trial forum that Congress has expressly authorized. Furthermore, the legislative and executive branches have acquiesced in the judiciary’s usurpation of additional powers to review and determine the validity of enemy detention and trial. Consequently, enemy combatants in the ongoing conflict have been given greater legal protections than any enemy combatants in the history of American warfare — and, quite likely, in the history of the world. To assert, as Senator Paul does, that the indefinite duration of the war equates to a diminution of fundamental due process is just absurd.
But the absurdity does not end there. Senator Paul contends that this purported loss of liberty is permanent. He reasons that once government rolls back due process rights the status quo ante is never restored. But history proves him wrong again and again — even in the examples he cites.
For instance, Paul is fond of pointing to Lincoln’s unilateral suspension of habeas corpus during the Civil War. What he never gets around to mentioning, however, is that (a) the constitutional prerequisite for suspension of the writ, rebellion, had clearly occurred, and therefore the only legal question concerned which political branch, the president or Congress, had the authority to order suspension; (b) when it returned to session, Congress endorsed Lincoln’s suspension of the writ; (c) after the war, the Supreme Court rejected the executive’s unilateral suspension, thereby refuting Paul’s claim that executive power is never rolled back; (d) after the wartime crisis ended, peacetime norms returned, as they have after every war, again refuting Paul’s contrary claim; and (e) habeas corpus protections have now been granted to the enemy, thanks to the political branches’ acquiescence in the Supreme Court’s Boumediene decision — in truth, the due-process rights of wartime detainees have substantially increased over time, not ineluctably decreased as Paul maintains they unfailingly do.
The same phenomenon is evident in the exercise of the full range of war powers. Military commissions have been a staple of executive war power since Gen. George Washington resorted to them in the Revolutionary War. Yet, under current law, they must now be authorized by Congress; their due-process components are nearly as robust as civilian trial protections; they feature extensive post-trial appeals including review by the civilian courts; and, by statute, they may be used only against aliens — the Military Commission Act tribunals have no jurisdiction to try American citizens. The history of commissions has been one of dramatic enhancement of legal protections for aliens and citizens.
The same can be said of surveillance. Until the early 1970s, there were no meaningful protections from physical searches and electronic eavesdropping done for national-security purposes rather than criminal investigation — the executive branch had unfettered authority. But then the Supreme Court broke new ground by requiring judicial warrants for intelligence gathering against domestic seditionists. The Congress followed in 1978 with the sweeping Foreign Intelligence Surveillance Act, imposing a requirement of judicial review and approval for surveillance operations against agents of foreign powers. Over time, the Justice Department and the newly created FISA court added layers of paralyzing regulation, motivated by hypothetical and irrational fears that national-security powers would be pretextually used to build criminal cases. None of this was called for by the Constitution. To the contrary, the Constitution is designed to maximize government’s power to repel national-security threats. The result of the Justice Department’s gratuitous self-strangulation was its inability to detect and share intelligence that might well have enabled it to prevent the 9/11 atrocities.
Remarkably, Paul and his acolytes point to the 9/11 attacks as the purported evidence that a lavishly funded government security apparatus does not give us any real security. This is a specious assertion, belied by — to name just one thing — the many post-9/11 plots that have been thwarted by vigilant surveillance, aggressive interrogation, and military strikes that keep terrorists too worried about their own lives to be very effective at ending ours. To be sure, this does not argue for wasting a fortune on boondoggles that do not advance our security. But it does call for recognizing the real threat to national defense: the unprecedented rights that Paul & Co., in their anti-government extremism, seek to grant America’s enemies. Leviathan is too bloated and performs many domestic functions that ought to be returned to the states and the people. But terrorist plots do not succeed because government is too big and sprawling and inefficient; they succeed because libertarian extremists frustrate government’s ability to perform even those few functions for which we actually need a central government.
Among the least persuasive of Senator Paul’s many gossamer claims is that the McCain-Levin amendment turns all the world into a battlefield and therefore exposes American citizens to a high risk of arbitrary arrest and detention without trial on the commander-in-chief’s mere claim that the citizens are colluding with the enemy.
The battlefield objection misconstrues the ongoing war in rudimentary ways. We are dealing with a war of aggression by al-Qaeda and its affiliates. We did not seek the war; we were attacked, repeatedly. To see the matter otherwise is to accept as truth the calumnious tropes posited by Rep. Ron Paul (R., Texas), the senator’s father, that we have brought jihadist wrath on ourselves.
In point of fact, the 9/11 attacks, the culmination of Osama bin Laden’s determination to take the jihad global after the Soviets were driven from Afghanistan, were a straightforward application of Islamist ideology in its most ferocious interpretation — which calls for offensive war until non-Muslim powers are subdued and a worldwide caliphate is established. It is fair enough to say that we ought not meddle in the affairs of Islamic countries unless our vital interests are threatened, and that the effort to reconstruct those countries into Western democracies is — besides being a fool’s errand — a profound provocation under Islamist doctrine. But to claim that mass-murder attacks are a foreseeable and seemingly understandable response, and thus that we have only ourselves to blame for Islamist barbarity, is lunatic effrontery.
Al-Qaeda declared war on us. We tried for years to treat their offensive operations as mere crimes fit for civilian prosecution. The result of this strategy — which was guaranteed to fail because it had no hope of neutralizing the main offenders, ensconced in their overseas safe havens — was to encourage more attacks. In conducting its war, al-Qaeda eschews any geographical limitations or constraints based on the notion of a traditional battlefield. All Americans, American installations, American interests, and American allies are in their sights — anywhere, at any time, without any sense of proportion or discrimination between military and civilian targets.
They have made the globe the battlefield. We must respond in kind to effectuate our natural, constitutional, and international rights of self-defense. Were we to declare certain precincts off-limits while they reserved the right to attack, we would be committing suicide. As it is, we are adhering to the laws of war and materially restraining the degree of force our troops may use to vanquish the enemy and defend themselves. If our ruthless enemies respect no boundaries, the federal government cannot fulfill its first responsibility to protect the nation by limiting itself to traditional battlefields — whatever the term “battlefield” means in a modern age of sneak attacks and mass-destruction weapons. There is nothing in the Constitution or the thinking of the framers that suggests otherwise. In fact, the framers understood, as Hamilton put it, that “security can only be regulated by the means and danger of attack.” Your rules of engagement must address and overcome the enemy’s methods.
This has little or nothing to do with the McCain-Levin amendment. The war has been fought under these understandings for a decade. Under legislation that has long been in effect — beginning with the 2001 authorization for the use of military force (AUMF), and added to by the Detainee Treatment Act and the Military Commissions Act — the question of whether a person qualifies as an enemy combatant is controlled by whether he (a) participated in the 9/11 attacks or (b) abetted al-Qaeda, the Taliban, or their affiliates. There have been no geographical, temporal, or nationality limits; and while being captured on a battlefield would be relevant evidence if a person contested his designation as a combatant, it has never been a requirement — Khalid Sheikh Mohammed would be an enemy combatant regardless of whether he had been captured in Pakistan, in Poughkeepsie, or on Pluto.
In the aforementioned video, Senator Paul pointedly asked Senator McCain whether McCain-Levin would permit the president to designate an American citizen as an enemy combatant and ship him to Gitmo for indefinite detention. The Arizonan wouldn’t (couldn’t?) answer the question, mumbling something about public opinion. But the question deserves an answer.
Ever since Congress authorized combat operations in 2001, the president has been permitted to treat American citizens as enemy combatants. Such treatment has been exceedingly rare, affecting only four Americans over the course of ten years: Yasser Hamdi, who was captured in Afghanistan; Jose Padilla, who was captured in Chicago; and Anwar al-Awlaki and Samir Khan, who were killed two months ago in a drone strike in Yemen. This paltry number owes to the fact that, contrary to demagogic suggestions by Paul and Napolitano, the president is not free, willy-nilly, to designate just anyone, including political adversaries, as an enemy combatant. Instead, the designation may be applied only to citizens who satisfy the aforementioned statutory definition of an enemy combatant: participation in 9/11 or abetting the alien enemy factions (al-Qaeda, the Taliban, and their affiliates) expressly targeted by Congress.
Could a president abuse such power? Of course — all power can be abused. McCain-Levin, however, does not make such abuse any more likely than it was before McCain-Levin. More to the point, presidents are highly unlikely to abuse this particular power given that (a) they take an oath to uphold the law, (b) the political downside of intentionally using war powers to abuse Americans, an impeachable offense, would be devastating, and (c) detainees have lavish due-process rights to challenge their designation, so an abusive designation would inevitably result in a court order vacating the designation and directing the prisoner’s release.
Paul’s fretting over American enemy combatants’ potentially being shipped off to Gitmo is also misplaced. The whole point of choosing Gitmo as a detention site was to thwart any argument that federal courts had jurisdiction to intrude. The detention camp is intended for alien enemy combatants only. The degree to which American citizens maintain their constitutional protections outside U.S. territory is an open question, and thus detaining Americans at Gitmo would invite the courts to do exactly what the executive branch wants to forefend: interfere in wartime detention matters. That is why Yasser Hamdi was instantly transferred out of Gitmo when it was learned that he was an American citizen. And it is noteworthy that, while Gitmo was fitted with courtrooms for the conduct of military-commission trials, our law does not authorize such trials for American citizens — it was assumed that citizens would not be detained or tried at Gitmo.
It might come as news to Senator Paul that this has hardly been a boon for citizen combatants. Gitmo, the most scrutinized prison on the planet, is a model of humane treatment, solicitous to a fault in providing for our enemies’ eccentric dietary, spiritual, recreational, and litigation needs. American combatants Hamdi and Padilla, by contrast, were held in more ascetic domestic military brigs. If they’d had a vote in the matter, they’d very likely have preferred Gitmo — as, in fact, the actual Gitmo detainees were found to prefer their current straits when the Obama administration raised the possibility of transferring them to the less agreeable climes of suburban Chicago.
In any event, the detention of American citizens as enemy combatants is supported by history and precedent. As Prof. John Yoo points out, Lincoln’s theory of the Civil War was that the secession of the Southern states was invalid; therefore, all citizens of those states remained Americans. Thousands were detained without trial and, as noted above, those detentions were unquestionably lawful once Congress endorsed the suspension of habeas corpus.
This gives rise to the contention — advanced not by Senator Paul but by Justices Antonin Scalia and John Paul Stevens in the 2004 Hamdi case — that American citizens may not be detained in wartime, even if they are suspected of fighting for the enemy, absent a formal congressional suspension of habeas corpus. As I observed at the time, there is much to admire in this position. But it is not the only fair reading of the Constitution’s original meaning — after all, in the same case, Justice Clarence Thomas, himself a staunch originalist, reasoned that the courts had no business interfering with the commander-in-chief’s handling of enemy prisoners in a war authorized by Congress.
At the end of the day, the Supreme Court has long construed the Constitution to empower the executive branch, in wartime, to detain American citizens indefinitely as enemy combatants. The justices so held in the World War II Quirin case, when an American citizen, Hans Haupt, was among the Nazi saboteurs captured in Florida and Long Island (and not on a battlefield) after being dispatched here by the Führer to conduct terrorist attacks against our homeland. This Quirin rationale was reaffirmed 62 years later in Hamdi: The justices upheld the principle of indefinite wartime detention for American citizens who join the enemy, leaving unresolved the question of how much due process they were entitled to in challenging the executive’s determination that they were enemy combatants (although intimating that this would be significantly less due process than they would receive at a civilian trial during peacetime).
Following Quirin and Hamdi, the Fourth Circuit upheld Padilla’s detention without trial — a case that was mooted before the Supreme Court could consider it when the Bush administration transferred Padilla to the civilian justice system (where he was convicted . . . albeit not on the conduct that justified his combatant designation). And last December, a federal district court threw out a lawsuit brought by Awlaki’s parents, reasoning that the judiciary lacked the competence to determine whether an American citizen providing operational support to our wartime enemies posed a security threat sufficient to justify the use of lethal force.
In sum, Senator Paul is wrong in every salient particular: Even if there were no McCain-Levin amendment, wartime detention would be constitutionally permissible for enemy combatants; American citizens may be subjected to such detention if they fit the definition of the enemy as Congress has prescribed it; that definition does not make combatant status hinge on whether a person is captured on a battlefield; it is al-Qaeda, not Congress, that has turned the globe into a battlefield; due-process protections for enemy combatants have significantly increased over the course of American history; and it is patently untrue to claim that once the executive branch succeeds in asserting new war powers that have the effect of eroding liberty, those powers are never rolled back — in point of fact, as conflicts ebb and end, liberty is routinely restored, and often with more safeguards than it previously enjoyed. And contrary to Senator Paul’s constitutionalist pretensions, to call for endowing our alien enemies with constitutional protections and for additional judicial intrusions into war-fighting is a perversion of our founding law.
If Senator Paul really wants to be a constitutionalist, there is a straightforward way to go about it: Propose the repeal of the 2001 AUMF. We are not engaged in a lawless war. The law of war has been invoked under the direction of Congress. One need not concur with Professor Yoo that Congress’s constitutional power to declare war is only about fixing the legal rights and privileges of belligerents in order to agree that fixing those rights and privileges is an essential aspect of Congress’s war power. The actions we take in wartime — invading enemy sanctuaries, killing and capturing enemy combatants, trying by military commission combatants who’ve committed provable war crimes — would be illegitimate in peacetime. They are permissible only because Congress has authorized the use of military force against specified enemies.
If Senator Paul does not believe we should be taking these actions, if he does not believe we are really at war, then the constitutional course is to seek withdrawal of the war authorization — not to leave the AUMF undisturbed while undermining the nation’s capability to fight the war successfully.
It is not like Paul does not have an argument to make. In short order, U.S. forces will withdraw from Afghanistan just as they are almost fully withdrawn from Iraq. If Senator Paul believes that these pull-outs, coupled with the killing of thousands of al-Qaeda operatives including bin Laden himself, have reduced the jihadist threat to a manageable law-enforcement problem, then he should argue that we are no longer in a crisis that warrants combat operations. If military force were not authorized, there would be no grounds for military detention. Because we have made no effort to construct a new legal paradigm for addressing international terrorism, we would return to the pre-9/11 state of affairs: detention and trial only in the civilian justice system. If that’s what Paul believes is the best course, he should say so.
He would lose that argument. The public knows our enemies have not been defeated, and we’ve seen the terrible wages of fecklessly trying to indict them into submission. Until we come up with a better alternative between war and crime, we need to be on a law-of-war footing to secure the nation. The criminal-justice system has an important role to play, but it cannot protect us.
Were he to focus his argument on war, rather than tinkering around the edges, Senator Paul would move the country toward his direction. Our debt-laden nation has no appetite for more expensive misadventures in sharia-lite democracy building. The public is also very open to the Ron/Rand Paul gospel on reassessing our foreign entanglements. Yes, Americans tend to have a more expansive view than the Pauls of what America’s vital interests are, of the bond between the U.S. and Israel, and of the essential nexus between American prosperity and the global projection of American military might. They are receptive, though, to proposals that we sharply limit our involvement in Islamic countries; that we dramatically reduce the funding and arming of countries that despise us; and that a counterterrorism strategy premised on our capability to gather intelligence and conduct rapid, surgical attacks is preferable to a counterinsurgency strategy that leaves us with very little to show for prohibitively costly years of struggling to win Muslim hearts and minds.
That is where the Tea Party ought to be focusing. That is an agenda that is comfortably within the constitutional framework — not a farce that pretends the Constitution authorizes the use of force but then ensures that we lose.
— 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.