The Constitutional Crisis and the Security Crisis - On detainees, either ignore the judges...

January 04, 2010, 4:00 a.m.

The Constitutional Crisis and the Security Crisis
On detainees, either ignore the judges or rein them in.

By Andrew C. McCarthy

‘We do not want a situation where the executive is defying the courts,” a senior Obama administration official told the Washington Post. The spokesman was rationalizing the administration’s release of jihadist detainees, who are returning to the jihad and targeting Americans. Such defiance, said the official, would be “a recipe for a constitutional crisis.” Evidently, the president doesn’t appreciate that we already have a constitutional crisis.

The administration claims that it simply had to send six detainees from lockup in Guantanamo Bay to al-Qaeda Central in Yemen. A federal judge had found that there was insufficient evidence to hold one of them as an enemy combatant. Deducing that the cases against the other five were equally weak or worse, the Justice Department decided that all six should be sprung. Those were just the Yemenis. White House officials did not comment to the Post on the administration’s equally indefensible decision to send another half-dozen detainees to Afghanistan and Somaliland — which, like dumping jihadists in Yemen, is tantamount to sending them back to al-Qaeda.

These are not just bad decisions. They amount to a scandal. Let’s count the ways.

CONSTITUTIONAL CRISIS
First, there is the matter of the ongoing constitutional crisis that, as al-Qaeda’s attempted Christmas Day attack amply demonstrates, is now endangering our nation. The Constitution gives the political branches plenary responsibility for the conduct of war. The conduct of war includes the detention, trial, or release of enemy combatants. The federal courts have no role except the one they have usurped. This brazen power grab flouts the bedrock constitutional separation of powers, and the political branches do not have to abide it. Indeed, as national defense is their chief responsibility, it is their duty not to abide it.

Writing for the Supreme Court in Chicago & Southern Air Lines v. Waterman S.S. Corp. (1948), Justice Robert Jackson, whom Attorney General Holder claims as a role model, explained that, because matters related to national defense are the most important ones, the Framers ensured that there would be political accountability for the officials making security decisions. As he put it, such decisions are

When courts illegitimately claim authority over these matters, and the political branches let them get away with it, it means our most vital political decisions are being made by unaccountable, non-political officials. The American people cannot remove judges when they get these vital questions wrong. This undermines the separation of powers and imperils our constitutional system, which is designed to protect popular self-government — not to usher in judicial oligarchy.

The courts have no more right to tell the president to release an enemy combatant than a president has to tell a judge how to rule on the validity of a contract. The president’s war powers are more than adequately checked by Congress, which could close Gitmo and require the repatriation of all enemy combatants tomorrow if it were disposed to do so. The courts should have no say in the disposition of alien enemy combatants in wartime. If they try to have a say, they should be ignored. Courts and presidents refuse to enforce unconstitutional acts of Congress, and Congress and the courts rein in unconstitutional acts of presidents. Unconstitutional judicial acts must likewise be checked by the other branches.

For too long, we have allowed one branch of government to override all constitutional restraints. That practice is not just restricting our freedom; it is now threatening our lives.

POWER TO REVIEW IS NOT POWER TO RELEASE
Second, even if we were to accept that judges should be reviewing the military’s determination of who is an enemy combatant, the power to review is not the power to release.

In its 2008 Boumediene decision, the Supreme Court concocted a judicial power, purportedly rooted in the Constitution, to review the validity of alien combatants’ detention in wartime. The ruling is absurd. These are alien enemies detained outside the United States, whose only connection to our country is a hostile one. They do not have constitutional rights. They have only the rights Congress chooses to give them.

By statute, however, Congress has opted to give the prisoners a right to judicial review of detention — a limited right to review in the D.C. Circuit Court of Appeals — which the Supreme Court presumes to have expanded to include review by the federal district courts. Again, the political branches do not have to accede to the Supreme Court’s muscle-flexing. In conceding Congress’s grant of a limited judicial power, it is crucial to bear in mind what Congress has authorized — and what it hasn’t. Congress has not empowered judges to order the release of the prisoners. Judges have no such power unless Congress gives it to them.

A judicial finding that there is insufficient evidence to hold a detainee as a combatant (or what the Democratic Congress, still purging the last vestiges of Bush-era counterterrorism language, now calls a “belligerent”) does nothing more than impose on the executive branch a duty to make good-faith efforts to deport the combatant in a manner that is consistent with American national security. That means finding a country willing to take the prisoner, and — here’s the important part — ensuring that such a country is a functioning, responsible state that can guarantee the detainee will not threaten the United States. Places like Yemen, Afghanistan, Saudi Arabia, and Somaliland (which is not even a country) do not satisfy those conditions.

Almost all of these detainees have been trained in al-Qaeda camps. They are dangerous, even if that fact is not apparent to politically insulated federal judges. Federal law makes the fact of that training, on its own, reason to bar their entry into our country. It is perfectly understandable that other countries don’t want them, either. The president must be able to hold them indefinitely until a relocation consistent with our national security can be arranged. Difficult as this may be for some judges to grasp, we are at war, and the American people are not the ones who decided to seek out paramilitary training from an anti-American terrorist organization. Between our security and the supposed unfairness of the detainees’ continued detention, there is no doubt about which must take precedence. The president’s oath is to protect the American people, not appease the Muslim masses abroad.

CONGRESS MUST SET RULES
Third, let’s say, for argument’s sake, that we should abide the notion that judges should have the power not only to determine who is an enemy but also to release those found not to be enemies. Why has Congress failed to prescribe exacting rules of procedure for combatant-detention proceedings?

In Hamdi v. Rumsfeld, the 2004 case in which the Supreme Court began carving out a role for judges in detention cases, the justices acknowledged the special deference owed to the executive branch in wartime. In addition to suggesting that the government be permitted to submit hearsay evidence by affidavit (rather than forced to call witnesses) in order to avoid interfering with combat operations, the Court saliently opined that “the Constitution would not be offended by a presumption in favor of the Government’s evidence.” That is, once the government offered a sufficient amount of information to show it had a reasonable basis for believing an alien to be an enemy combatant, the burden would shift to the detainee to prove convincingly that he is not one.

Congress has never acted on this recommendation. It has allowed courts to make up their own rules and procedures. Predictably, the judges have taken this abdication as license to turn detention hearings into something closer to criminal trials, in which the government must prove guilt beyond a reasonable doubt and the detainee, like a criminal defendant, is entitled to every presumption of innocence. Worse, because there are no juries to check the judiciary’s inclination to inflate the rights of the terrorists, some judges are acting more like defense lawyers than jurists. That is, they are doing exactly what juries are typically instructed not to do: picking apart the government’s evidence, piece by piece, rather than looking at the proof as a whole to determine whether the enemy-combatant finding is reasonable.

For example, in the case of detainee Khaled al-Mutairi, Judge Colleen Kollar-Kotelly rejected the military’s conclusion that the prisoner was a combatant despite evidence that: (a) a foreign intelligence service had identified Mutairi as an al-Qaeda “hardcore extremist”; (b) he’d traveled to Afghanistan right after 9/11 using a known al-Qaeda smuggling route; (c) he’d contributed money to an al-Qaeda front designated as a terrorist entity under U.S. law; (d) he’d fled toward Tora Bora after the U.S. invasion using the same route as al-Qaeda and Taliban fighters; (e) his name had been found in an al-Qaeda safe house on a roster of “captured Mujahideen”; and (f) his passport had been seized from an al-Qaeda safe-deposit box, consistent with the terror network’s practice of having its operatives turn in their passports. The finding is absurd.

If Congress insists on permitting judges to review these detention cases, it must prescribe exacting rules. It must structure procedures so that the prisoners our professional war-fighters reasonably believe to be our enemies are found to be our enemies by the courts. That would not be hard to do. At a minimum, it means enacting a presumption in favor of the government holding that once the government puts forward enough information to support the conclusion that the detainee is a combatant, then the detainee has the burden of proving beyond a reasonable doubt that he is not one. If the detainee can’t satisfy that burden, he must be found — even in a close case — to be a combatant. Prosecutors enjoy a similar presumption in favor of detention in bail hearings involving defendants accused of violent crime. It boggles the mind that we don’t have one for al-Qaeda — in wartime, no less.

Courts have also sought to expand detainee due process in other indefensible ways. The government, for example, has attempted to limit disclosure to the relevant evidence on which it is relying to show the detainee is a combatant, plus any actually exculpatory evidence (i.e., evidence that truly suggests he is not a combatant). The courts have said that’s not good enough, attempting to force disclosure of any classified information that may be helpful to the defense (e.g., by identifying potential witnesses), even if that information is not exculpatory. That means enemy combatants in wartime get better discovery rights than Americans citizens accused of crimes.

In federal criminal cases, judges do not get to make up their own rules. In addition to deciding which cases courts should be allowed to hear, Congress prescribes the procedures, the burden of proof, and the parameters of discovery. It is reprehensible to abdicate this responsibility in these crucial national-security cases — especially when judges are taking our lawmakers’ dereliction as a green light to free dangerous jihadists.

What is the administration thinking? As the intelligence debacle surrounding the Christmas Day attack shows, President Obama will be blamed for failures to take obvious steps to thwart terrorists. He has the constitutional obligation to protect the nation, and Congress is firmly in the grasp of his party. If he proposed sensible procedures for terrorists’ detention cases, he’d get nigh-unanimous Republican support — and Democrats would go along regardless of the Left’s grumbling. The Bush administration, through Attorney General Mukasey, tried to spur Congress to act, but Democrats turned a deaf ear. Politcally, Obama can get it done. Why doesn’t he?

WHY WON’T THE JUSTICE DEPARTMENT APPEAL?
Which brings us to the final, related point: Why is the Justice Department failing to appeal bad detention decisions? Rulings such as the one by Judge Kollar-Kotelly are specious. The Justice Department should not just want to appeal, it should welcome the opportunity to persuade the appellate court to do what Congress has failed to do: impose on the district courts the presumption in favor of detention that the Supreme Court outlined in Hamdi.

Instead, Justice is not only failing to appeal, it is implicitly accepting the propositions that (a) the judges’ power to review detention implies a power to release detainees; (b) the current bad rulings set precedents from which we must assume that even worse rulings would follow; and therefore, (c) it’s not even worth litigating some detainee cases — we should just deport the prisoners instead, even if we have to deport them to Yemen.

These are cases involving jihadists trained to kill innocents. They are not the cases you compromise on: You take them all the way. If a district judge gives you a lunatic ruling, you appeal to the D.C. Circuit. If you lose there, you take it to the Supreme Court. Aside from having good-faith reasons to play out the string, this gives you months or years of time — time during which dangerous people stay detained while you have the opportunity to go to Congress and ask for help in the form of a legislative remedy to rein in the judges.

Why isn’t this being done? Americans are more than entitled to surmise that it is because there is a serious pro-detainee bias in this Justice Department. Many top DOJ lawyers and their firms — including Attorney General Holder’s former firm — volunteered their services for years to represent the detainees in court. Undoubtedly, several DOJ lawyers in influential positions think rulings like Kollar-Kotelly’s are perfectly reasonable. After all, these are just the sorts of rulings for which they spent the last several years arguing. They don’t want to appeal. Having represented detainees, they are untroubled by the prospect of their being released.

We’ve seen this movie before. When the federal courts ordered the release of prisoner-abuse photos, the Holder Justice Department counseled against an appeal. DOJ wanted to comply and release the photos to its friends in the ACLU, even though there were strong arguments to be made on appeal to the Supreme Court and there were provisions in the Freedom of Information Act under which President Obama could have ordered the photos to remain sealed.

In response to that position, the public — along with the military and the intelligence community — became aroused, spurring congressional protest. The political heat became so intense that Obama reversed his attorney general and directed the Justice Department to appeal. In the interim Congress, despite strong Democratic majorities, enacted legislation that empowered the secretary of defense to order the photos sealed — an order that was upheld by the Supreme Court, which deferred to Congress’s judgment.

As bad as releasing those photos would have been, how much worse is it to release terrorists from Gitmo? And to release them to places like Afghanistan, where they can target American troops, and Yemen, where they can train terrorists like Umar Farouk Abdul Mutallab to bring down an American airliner with 289 people aboard?

This experiment in allowing judges to preside over a central aspect of warfare has been a failure. The Constitution gives the political branches the power to put a stop to it, and they should act. It’s plainly in the Obama administration’s interest to rein the judges in, or to ignore them. If the president abdicates, Congress must assert itself. Regardless of what is in the administration’s interest, the national interest demands nothing less.
— National Review’s Andrew C. McCarthy is a senior fellow at the National Review Institute and the author of Willful Blindness: A Memoir of the Jihad (Encounter Books, 2008).