International terrorists waging war against the United States cannot be treated as if they were ordinary defendants. Those who say otherwise, and who would treat terrorist operatives as if they were mere civilians, are trying to impose on the United States the standards of foolhardy treaties that the United States has never ratified — precisely because accepting such standards “would improperly reward an enemy that violates the laws of war by operating as a loose network and camouflaging its forces as civilians.”
To protect national security, the president must have the authority to detain anyone who, in his judgment, is helping the enemy. And anyone means anyone: It matters not if such suspects “have not actually committed or attempted to commit any act of depredation or entered the theatre or zone of active military operations.” If the president’s unilateral authority to detain were “limited to persons captured on the battlefields of Afghanistan,” this would “unduly hinder both the President’s ability to protect our country from future acts of terrorism and his ability to gather vital intelligence regarding the capability, operations, and intentions of this elusive and cunning adversary.”
You’re probably thinking the quotes above reflect the world according to Dick Cheney, David Addington, John Yoo, or some similar Bush-era incubus. In fact, they describe — with words drawn directly from Eric Holder’s Justice Department — the Obama administration’s official guidance on enemy combatants. The Obama administration won’t lower itself to call these terrorist captives “enemy combatants,” notwithstanding that they are part of the “enemy” the administration concedes is conducting “battle” against us in the “war” he admits we are in.
The guidance, made public last Friday in a DOJ submission in federal district court, marks quite a turnabout for the president and his attorney general. During last year’s campaign, Obama was sharply dismissive of the Bush policy of detaining enemy com — er, whatever you call ’em, without trial.
He argued that, back in the Clinton days, we’d been able to arrest the terrorists, “put them on trial” in civilian courts, and strand them “in U.S. prisons, incapacitated.” In fact, this wasn’t even true with respect to the single atrocity he mentioned, the 1993 World Trade Center bombing (in which several of those complicit were not apprehended), much less with such fugitive “defendants” as Osama bin Laden — who has been at large for nearly eleven years (and thousands of casualties) since his indictment in June 1998. No matter. During the campaign, Obama said the Bush approach — i.e., the approach Obama now has adopted as president — had “destroyed our credibility when it comes to rule of law all around the world, and given a huge boost to terrorist recruitment in countries that say, ‘Look, this is how the United States treats Muslims.’”
Ditto Holder, whose law firm, like several of his new recruits at the Justice Department, proudly acclaims its voluntary contribution of millions of dollars’ worth of legal services for the Gitmo detainees — legal services that consist primarily of demanding that the courts “improperly reward” the prisoners with the rights of civilian defendants that Holder now says they mustn’t have.
It seems like only yesterday that Holder, sounding like a Gitmo barrister in good standing, was ripping the Bush administration for “den[ying] the writ of habeas corpus to hundreds of accused enemy combatants.” Indefinite detention, said he, was only one of many “needlessly abusive and unlawful practices” Bush had ordered after 9/11 — practices Holder has suddenly seen the wisdom of, even though he once was quite certain that such “procedures . . . violate both international law and the United States Constitution,” in addition to having “diminished our standing in the world community” and having “made us less, rather than more, safe.”
It’s a funny thing that Holder should have mentioned international law and the U.S. Constitution. His new guidance places enormous emphasis on the former but — ostensibly — none on the latter. That, beyond banning the term (but not the reality of) “enemy combatants,” is the sop that is supposed to satisfy the administration’s hard Left base. Obama is implementing exactly the same policy as Bush but purporting to walk away from his predecessor’s reliance on the president’s inherent commander-in-chief powers. Article II — the constitutional provision through which Bush was alleged to be shredding the Constitution — is reduced to irrelevancy according to the new guidance because (a) detention power flows from Congress, which enacted a sweeping authorization for the use of military force (AUMF) immediately after the 9/11 attacks, and (b) resort to that power to detain non-state actors turns out to be fully consistent with the international law Holder until recently said we were violating.
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