The most refreshing thing about Sen. Rand Paul (R., Ky.) — the thing that comes through in his often admirable speeches and op-eds, as well as in The Tea Party Goes to Washington, the autobiographical account of his political rise — is that he seems to have the courage of his convictions. It is disappointing, then, that this turns out not to be the case, at least when it comes to enemy combatants.
In his response to my weekend column regarding his efforts to arm enemy combatants with full-fledged constitutional rights in wartime, Senator Paul protests that I have misrepresented his position. He now claims that his effort last week to defeat the combatant-detention provisions in the defense-authorization bill were strictly about protecting American citizens. He accuses me of contending that the debate “was not about American citizens,” and insists that I’ve erected a “strawman” in alleging that he was urging constitutional rights for alien combatants.
This is claptrap. As anyone who takes the time to read my column knows, not only did I respectfully acknowledge Senator Paul’s arguments insofar as they involved American citizens, but I also rebutted them at considerable length. And what we have here is not a “strawman” but the usual case of a politician’s trying to put distance between himself and an uncomfortable position he no longer has the nerve to defend — in this instance, Senator Paul’s advocacy of a return to the disastrous pre-9/11 counterterrorism policies that vested constitutional trial rights in America’s alien enemies, a position he reaffirmed less than ten days ago.
It will take some time to show this, mainly because Senator Paul actually spoke extensively on this subject that he now claims had nothing to do with the detainee debate. The senator’s website links to the floor speech he gave on November 29. Consistent with his prior positions — and with those espoused by his father, Rep. Ron Paul (R., Texas), whose objections to post-9/11 counterterrorism policy Senator Paul frequently lauds — Senator Paul championed constitutional protections for all enemy combatants, aliens as well as American citizens. While the whole thing is worth reading or listening to, here are some relevant excerpts:
The discussion now to suspend certain rights to due process is especially worrisome given that we are engaged in a war that appears to have no end. Rights given up now cannot be expected to be returned. So, we do well to contemplate the diminishment of due process, knowing that the rights we lose now may never be restored.
My well-intentioned colleagues ignore these admonitions in defending provisions of the Defense bill pertaining to detaining suspected terrorists. Their legislation would arm the military with the authority to detain indefinitely — without due process or trial — SUSPECTED al-Qaida sympathizers, including American citizens apprehended on American soil. I want to repeat that. We are talking about people who are merely SUSPECTED of a crime. And we are talking about American citizens.
(Emphases in original transcript on Senator Paul’s website.)
Palpably, Sen. Paul raised two objections. First, on behalf of all al-Qaeda “sympathizers” (i.e., without discrimination between aliens and citizens), he complained about indefinite wartime detention based only on their being “SUSPECTED of a crime” — note, not an act of war, a crime. He asserted that the Constitution is flouted whenever anyone is indefinitely detained solely due to executive-branch suspicion rather than “due process and trial.”
To be fair, Senator Paul has said he believes the U.S. military invasion of Afghanistan was justified, and he thus concedes that indefinite military detention is tolerable in the case of “battlefield” captures. But there is less than meets the eye to this concession: As last week’s Senate debate elucidated (and as my column noted), Senator Paul’s notion of the “battlefield” is extremely narrow and antique — more like something out of Braveheart than out of a modern war conducted by a transcontinental terror network that hides within, plots against, and targets civilian infrastructure across the globe, including American cities.
Senator Paul’s second objection did indeed highlight American citizens, whose military detention, he urged, is even more problematic than that of aliens — especially if a citizen has been apprehended on American soil. But my column did not dispute this: I acknowledged that much of Senator Paul’s argument focused on American citizens, and I concurred that their treatment as enemy combatants poses tougher constitutional issues than does the military detention and trial of alien combatants. Our disagreement is about how those issues should be resolved. It is disappointing to find Senator Paul pretending that I ignored or obscured his concerns when he knows I spent well over a thousand words outlining and addressing them. I did not hide the ball. I vigorously disagreed with him.
The above excerpt from his speech was far from Sen. Paul’s sole promotion of constitutional rights for non-American combatants. He proceeded to home in on what he framed as post-9/11 counterterrorism’s fundamentally wrongheaded premise — namely, that al-Qaeda and its affiliates are enemies waging war against us. He sees them as mere criminal suspects and thus elaborated on his view that civilian due process is more than adequate to deal with, as he put it, “international terrorism.”
What, however, would be the practical consequence of a return to what Senator Paul calls our “pre-9/11 police powers”? International terrorism against the United States is overwhelmingly committed by non-Americans. And when you think about trials in terms of the post-9/11 law-of-war paradigm versus Senator Paul’s preference for the pre-9/11 paradigm of civilian due process, you quickly realize that the statutes governing the former do not permit military commissions for American citizens — only for alien combatants. Consequently, when Senator Paul exhorts us to abandon the law-of-war approach and go back to civilian trials, we must understand that the main beneficiary of such a change would be alien terrorists. His protestations to the contrary notwithstanding, Senator Paul’s argument was necessarily a call for alien combatants to be given the constitutional protections.
But don’t take my word for it. Here’s another excerpt from his speech, worth quoting at length:
The first and flawed premise . . . is that our pre-911 police powers were insufficient to combat international terrorism. This is simply not borne out by the facts. Congress long ago made it a crime to provide, or to conspire to provide, material assistance to al-Qaeda or other listed foreign terrorist organizations. Material assistance includes virtually anything of value — including legal or political advice, education, books, newspapers, lodging or otherwise. The Supreme Court sustained the constitutionality of the sweeping prohibition. And this is not simply about catching terrorists after the fact, as others may insinuate. The material assistance law is in fact forward-looking and preventive, not backward-looking and reactive.
Al-Qaeda adherents [Note that Sen. Paul is talking about all al-Qaeda adherents, not just those few who are American citizens] may be detained, prosecuted, and convicted for conspiring to violate the material-assistance prohibition before any injury to an American. Jose Padilla, for instance, was convicted and sentenced to 17 years in prison for conspiring to provide material assistance to al-Qaeda. The criminal law does not require dead bodies on the sidewalk before it strikes at international terrorism. Indeed, conspiracy law and prosecutions in civilian courts have been routinely invoked after 9/11, to thwart embryonic international terrorism.
Michael Chertoff, then head of the Justice Department’s Criminal Division and later Secretary of the Department of Homeland Security, testified shortly after 9/11 . . . that “the history of this government in prosecuting terrorists in domestic courts has been one of unmitigated success and one in which the judges have done a superb job of managing the courtroom and not compromising our concerns about security and our concerns about classified information.”
Moreover, there is no evidence that criminal-justice procedures have frustrated intelligence collection about international terrorism. Suspected terrorists have repeatedly waived both the right to an attorney and the right to silence. Additionally, Miranda warnings are not required at all when the purpose of interrogation is public safety.
To be sure, Senator Paul’s comments are rife with inaccuracies (I’ll come to those momentarily). For present purposes, though, the salient point is that he was advocating that we reject the entire post-9/11 law-of-war paradigm — indefinite detention, military commissions, interrogations conducted outside the court-created Miranda rule and its exceptions, etc. Senator Paul was arguing that the criminal-justice system is perfectly adequate to safeguard our security. Such an argument is not solely — or even primarily — about the treatment of American citizens. It is an argument that all al-Qaeda operatives, aliens and Americans, should be handled as criminal defendants, not war enemies (unless they’ve been captured on a traditional battlefield).
Again, Senator Paul’s list of claims about the virtues of civilian justice in wartime are wrong. To take his points one by one:
‐ Far from being an “unmitigated success,” the pre-9/11 Clintonian strategy — national-security-by-criminal-prosecution — was a catastrophic failure: A few dozen guilty verdicts cannot erase the civilian legal system’s utter incapacity to reach thousands of jihadists in their overseas safe havens (including, to name just two, Osama bin Laden and Khalid Sheikh Mohammed — who operated with impunity under civilian indictments for a combined two decades before finally being neutralized by law-of-war protocols).
‐ While Jose Padilla, an American citizen, was convicted in civilian court, Senator Paul conveniently neglects to mention that he could not be tried in that forum for the conduct that was the rationale for detaining him as an enemy combatant: his al-Qaeda plot to attack American cities. Civilian due-process standards would have required the disclosure of virtually everything the government knew about al-Qaeda, as well as the sources of that intelligence. Had the Justice Department not been fortunate enough to uncover an unrelated offense involving support for terrorism overseas, our stark choice would have been to hold Padilla as an enemy combatant or to release him. Reliance on good luck is not a very promising security strategy.
‐ Criminal prosecution significantly compromises intelligence. This fact owes not only to the disclosures of intelligence that due-process rules mandate, and the revelations of intelligence that are an unavoidable aspect of eliciting trial testimony, but also to impediments that civilian due process imposes on intelligence gathering, such as Miranda. Contrary to Senator Paul’s claims, many terrorists who are given Miranda warnings do, in fact, invoke the rights to remain silent and to assistance of counsel. In fact, in my mid-Nineties prosecution of the Blind Sheikh’s terror cell, not only did nearly all 14 defendants invoke Miranda rights, but our evidence further showed that they were trained to do so in the event of arrest. And even though some terrorists do waive Miranda rights, as Senator Paul asserts, I wonder if he knows that al-Qaeda trains them to do so after delaying until a point when much of what they know is too stale to act on — and until they have been given lawyers who can bargain for a more lenient plea deal in exchange for information. That is, our enemies actually build our civilian due-process restraints into their calculations; these protections enable arrested terrorists to create the illusion of cooperation. And even if Senator Paul were correct that all terrorists routinely waive Miranda rights — and, to repeat, he’s wrong — imposing Miranda on wartime interrogations puts our enemies, rather than our national-security agents, in charge of what we get to learn about the enemy’s operations.
‐ Finally, the jurisprudence of Miranda’s “public safety” exception is unsettled. Some courts hold that public-safety concerns end once the suspect is safely in custody, at which point Miranda warnings must be given. So even if the public-safety exception applies, interrogations will still be cut off by Miranda long before agents can pry all the useful information from an apprehended terrorist.
But let’s put aside Senator Paul’s many misconceptions about terrorism cases and cut to the chase: His plea in favor of returning to pre-9/11 civilian due process for our wartime enemies is not a fringe position. The contention that we should scrap the law of war and go back to endowing all international terrorists with full constitutional protections is drearily conventional among libertarians of the Rand/Ron Paul bent of mind, progressive legal scholars, congressional Democrats, and Obama-administration officials. Yet, having parroted this argument only a week ago, Senator Paul would have you think he never made it. He clearly has no interest in trying to defend it. He prefers to pretend that I made it up out of whole cloth.
Now if, after due consideration, Senator Paul has suddenly realized he’s been wrong all along — if he now wants to abandon his argument that we should return to “pre-9/11 police powers,” under which alien terrorists were given full constitutional protections — that is great news. If he now prefers to confine his objections to the law-of-war treatment of American citizens only, that is a welcome development. I hope he’ll announce with clarity that he no longer thinks we should go back to the pre-9/11 approach; that he now realizes that strategy was inadequate to protect the country from alien terrorists; and that he now supports indefinite detention and military-commission trials for alien members of al-Qaeda and the Taliban, no matter where they are captured — whether on a traditional battlefield; in a covert capture operation in some Asian, European, or African hideout; or on an American street. If he is really concerned only about U.S. citizens, as he now insists, his remarks last week do not bear that out. He ought to be happy to clarify them.
As for the senator’s latest objections to law-of-war detention for enemy combatants who happen to be American citizens, they are as unconvincing in the retelling as they were when they were decisively rejected in the Senate last week. I will address them in a subsequent column.
— 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.