|Looks like the Tea Party is having a sane moment and is joining hands with the ACLU on this issue, which I have been posting about since the day the NDAA was signed. Check this out, Ted. When the Tea Party and the ACLU join hands, you know that we live in VERY interesting times. Common causes make for some strange bedfellows. Too bad that the WSJ decided to call the Tea Party to the mat on this one, instead of giving them Kudos for defending our Constitutional Rights and Freedoms from a Dictatorial power grab by Congress and the Executive Branch. My only question is where is the Supreme Court on this one? They should take this issue up and debate the NDAA's Constitutionality.|
The Tea Party's Inner ACLUA
left-right alliance against military detention of terrorists.The tea party movement has generally been constructive, but every so often it runs off the road. A case in point is its emerging condominium with the anti-antiterror left to block terrorist detentions.
This strange alliance has developed in response to one of Congress's rare bipartisan achievements—the 2012 National Defense Authorization Act (NDAA). That bill affirmed the long-standing distinction between civilian justice and the rules of war by letting the President detain terrorists (including U.S. citizens) captured anywhere and question them as long as necessary. A President can decide to try them in either military or civilian courts, and the right of habeas corpus to challenge detention in court, established by the Supreme Court's 2004 Hamdi decision, is unchanged.
This modest law has sprouted a burst of political delusion in several states and Congress. A tea party outfit called the Tenth Amendment Center calls the law "an unconstitutional and dangerous federal power grab"—though the statute merely codifies existing practice under Presidents Bush and Obama. In the wilder tea party precincts, the talk is that in a second term Mr. Obama might round people up, a la Japanese-Americans after Pearl Harbor.
The paranoia is showing up in state legislatures, and this month Virginia became the first to forbid state employees from "assisting" the feds "in the conduct of the investigation, prosecution, or detention of any citizen" under the provisions of the NDAA. This means that as of July 1 in Richmond a state trooper could not arrest the likes of the late Virginia cleric-turned-terrorist-recruiter Anwar al-Awlaki because he might end up in a military brig. A U.S. missile targeted and killed Awlaki in Yemen on Presidential orders, but Virginia police couldn't detain him.
Republican Governor Bob McDonnell was given plenty of reasons to veto the bill, including several in a letter from former Attorney General Ed Meese and former Homeland Security Secretary Michael Chertoff, among others. The Virginia law violates the U.S. Constitution's Supremacy Clause by directly interfering with federal war powers. Somehow the tea party's constitutionalists missed this legal nicety. In practical terms, the law handcuffs and confuses local authorities whose job is to protect the public.
Rather than veto, however, Mr. McDonnell merely proposed a word change. State employees won't be allowed to "knowingly" help the U.S. government detain terror suspects. How reassuring. This rollover hardly speaks well of Mr. McDonnell's bona fides as a potential vice president.
The movement is also spreading to Capitol Hill, where the ACLU and tea party conservatives led by Michigan's Justin Amash are trying to block terrorist detentions in the House version of the defense authorization. House leaders are opposed, but they could lose a floor vote this month if someone doesn't educate the freshmen about the difference between common criminals and the laws of war.
The law now on the books carries a presumption of military detention for suspected terrorists because the top priority is to find out what they know. War fighters need to learn what a terrorist has been plotting, where he has been, who his co-conspirators are, and what else is planned. The priority in civilian court is assessing guilt and punishment, which can come later.
The tea party-ACLU effort would also have the perverse effect of treating terrorists who make it to American soil better than those arrested overseas. Majid Khan, who this year pleaded guilty to five terrorism-related counts before the military tribunal at Guantanamo Bay, is a former resident of Baltimore who left the U.S. to work with al Qaeda and was captured overseas before he could return to kill here. Should Khan have been treated better if he'd made it back to the U.S.?
In 1942, a military court ordered the execution of six Nazis, including an American citizen, who were captured after having come ashore from submarines off the U.S. East Coast. Yet some tea partiers want to let today's version of infiltrating Nazis get the same rights as burglars.
Some tea partiers also want to distinguish between U.S. citizens and foreigners, as if that would matter to their victims. Anyone who takes up arms against the U.S., fails to wear an enemy uniform and targets civilians is an unlawful enemy combatant regardless of citizenship.
Military detention of American enemy combatants is rare in any case. Since 9/11, two U.S. citizens have fallen into this category: "Dirty bomber" José Padilla, who was eventually convicted by a civilian court after long detention, and Yaser Esam Hamdi, who renounced his citizenship and was deported to Saudi Arabia.
The ACLU tea partiers may be well-intentioned but they are woefully uninformed about the war on the terror. Their efforts would undermine executive war-fighting authority and the legitimacy of a terrorist detention and military tribunal system that has been established over many Congresses, endorsed by two Presidents and confirmed by the Supreme Court. They should stick to shrinking the entitlement state.