The Fourth Circuit Court of Appeals has just deep sixed the "unitary executive." If you haven't read the opinion, you can find it by following the link. At 86 pages, it might seem a little intimidating, especially since it contains some typically arcane legal analysis that might obscure its huge impact on the President's claims to dictatorial powers in "time of war." In fact, the opinion destroys the "unitary executive" theory. Come along and I will show you how.
Crossposted at Conceptual Guerilla.
Actually, there is a very simple distillation out there of the relevant holding issue. That distillation is furnished by none other than that legal theorist for the "unitary executive," John Yoo. In a recent op-ed piece at the Wall Street Journal he says this:
I think it's an effort by this court to deny what happened on Sept. 11. It basically holds that we cannot be at war with some organizations that not--that's not a state. So we could capture people in Afghanistan, we could capture people in Iraq--those people would be enemy combatants. But any al Qaeda member that makes it to the United States has to be given a criminal jury trial, Miranda, lawyers. This is exactly the framework of the law that existed on Sept. 10, 2001.
First of all, someone really needs to explain something to Professor Yoo. "September 11" isn't some talismanic date, which had the effect of suspending or even modifying the constitution. We live under the same constitution today, that we lived under on "September 10." Whatever may have "changed" because of "September 11," the consititution didn't. Here is what the Fourth Circuit actually said.
Rather than supporting the Government’s position, the Supreme
Court’s most recent terrorism case provides an additional reason
for rejecting the contention that al-Marri is an enemy combatant.
In Hamdan, the Court held that because the conflict between the
United States and al Qaeda in Afghanistan is not between nations,
it is a ‘conflict not of an international character’ -- and so is
governed by Common Article 3 of the Geneva Conventions. See 126 S.
Ct. at 2795; see also id. at 2802 (Kennedy, J., concurring).
Common Article 3 and other Geneva Convention provisions applying to
non-international conflicts (in contrast to those applying to
international conflicts, such as that with Afghanistan’s Taliban
government) simply do not recognize the legal category of enemy
combatant. See Third Geneva Convention, art. 3, 6 U.S.T. at 3318.
As the International Committee of the Red Cross -- the official
codifier of the Geneva Conventions -- explains, an ‘enemy
combatant’ is a person who, either lawfully or unlawfully, engages
in hostilities for the opposing side in an international armed
conflict; in contrast, [i]n non-international armed conflict
combatant status does not exist. Int’l Comm. of the Red Cross,
Official Statement: The Relevance of IHL in the Context of
Terrorism, at 1, 3 (Feb. 21, 2005), http://www.icrc.org/...
siteeng0.nsf/htmlall/terrorism-ihl-210705 (emphasis added).13
Perhaps for this reason, the Government ignores Hamdan’s
holding that the conflict with al Qaeda in Afghanistan is a noninternational
conflict, and ignores the fact that in such conflicts
the legal category of enemy combatant does not exist. Indeed,
the Government’s sole acknowledgment of Hamdan in its appellate
brief is a short footnote, in which it asserts that the Court took
it as a given that Hamdan was subject to detention as an enemy
combatant during ongoing hostilities. The weakness of this
response is apparent. Not only does it avoid the holding in Hamdan
that the conflict between the United States and al Qaeda is a non14
The Supreme Court has yet to hold that there is a noninternational
armed conflict between the United States and al Qaeda
within the United States. Non-international conflicts occur[] in
the territory of one of the High Contracting Parties, Hamdan, 126
S. Ct. at 2795 (quoting Third Geneva Convention, 6 U.S.T. at 3318)
(emphasis added) -- and Hamdan only found there to be a conflict
between the United States and al Qaeda in Afghanistan. Of course,
al-Marri is not a participant in any conflict involving the United
States in Afghanistan. Although the Government alleges that al-
Marri attended an al Qaeda training camp in Afghanistan years
before September 11th, it has proffered no evidence that al-Marri
was involved in the conflict between the United States and al Qaeda
in Afghanistan -- nor could it, for al-Marri has not been in
Afghanistan at any point during that conflict.
international conflict, but also it suggests that the Supreme Court
approved Hamdan’s detention when the legality of that detention was
not before the Court, and in fact, the legality of the detention of
those like Hamdan, captured and detained in the conflict with al
Qaeda outside the United States, is still being litigated. See,
e.g., Boumediene, 476 F.3d 981.
Moreover, even were the Supreme Court ultimately to approve
the detention of Hamdan and those like him, that would not bolster
the Government’s position at all in the case at hand. This is so
because, since the legal status of enemy combatant does not exist
in non-international conflicts, the law of war leaves the detention
of persons in such conflicts to the applicable law of the detaining
country. In al-Marri’s case, the applicable law is our
Constitution.
I have to tell you, I had one of those "restore my faith in the judiciary" moments when I read that. Here's the deal. "Enemy combatant" isn't just some neoconservative neologism intended to really mean "whoever the hell we don't like at the moment." Rather, "enemy combatant" is a pre-existing legal concept in the law of war, that has a particular meaning -- and which particular meaning was intended. As much as they might like to, neocon legal "scholars" like John Yoo can't just make shit up when it comes to crafting the legal framework for their theory of the "president-as-tyrant." They have to construct their theory out of the existing legal tradition, of which the phrase "enemy combatant" is a part.
So what is an enemy combatant? An enemy combatant is either a member or one who fights "along side" of members of the armed force of a participant in an "international conflict." An "international conflict" is exactly what the word parts say it is. It is a conflict between -- "inter" -- nations -- "national." The taliban was a "nation" because they comprised the government of Afghanistan. American hostilities with them in Afghanistan were hostilities with a "nation," and therefore the conflict was "international." "Enemy combatants" therefore, are Taliban fighters and those who "fight alongside them" IN AFGHANISTAN.
So what is Al Qaeda? In Afghanistan, Al Qaeda might well qualify as a "national" military force -- albeit an irregular force. Outside of Afghanistan, in their ordinary role as "terrorists" they are, well, outlaws. Criminals, in other words -- which definition suits me just fine. Unfortunately for the "detain-our-enemies-forever" crowd, you can't hold a "criminal" as a prisoner of war. You can only hold an "enemy combatant" who must have some connection to a "national" military force in an "international conflict." Taliban fighters seized in Afghanistan qualify. Al Qaeda operatives outside of Afghanistan do not. They are "criminals," not "enemy combatants" and must handled like criminals. A person suspected of crimes in the context of his association with Al Qaeda must be charged with a crime, and put on trial with a reasonable opportunity to establish his innocence of such crimes. Because remember, just because the government SAYS you are a "terrorist," doesn't mean you are. Our centuries-in-the-making legal system requires the government to prove its case -- as well they should.
Way back in 2001, just after the 9/11 attacks, when these "military commissions" with secret trials and secret evidence were proposed, I was outraged. I had no use for Al Qaeda, I supported the invasion of Afghanistan to track those bastards down, I believed the Taliban government could properly be held to account for harboring them, and was fully down with the notion that when it comes to people flying planes into skyscrapers, we simply don't have to put up with that shit. I also believe that civilians in other countries should likewise not have to put up with similar shit. The "rule of law" is funny that way. It sets up universal expectations that everybody is entitled to rely on -- even political opponents you don't like. For all their braying about the "rule of law," conservatives have never gotten that in the context Al Qaeda or any other context.
None of that means that I am prepared to toss aside 800 years of jurisprudence in the means employed to deal with outlaws. Besides the 19 hijackers, there were certainly co-conspirators, and those co-conspirators may well be identified. So you find those people, you indict them, you appoint them counsel if they need it, you put twelve citizens of the Southern District of New York in a jury box, you put up your evidence and allow your suspects to cross examine your witnesses, and then you await the verdict of the jury. That's how we handle criminal suspects, and how we have handled them for centuries -- including times less ordered and more tumultuous than the present. If the jury finds the evidence to be sufficient, you punish those convicted outlaws. If the evidence isn't sufficient -- and if 12 New Yorkers who were there for those attacks aren't convinced, that should tell you something -- you let them go.
That's what the "rule of law" ultimately means. If you don't break the law, you are free to go about your business. Not only that, if the government can't PROVE you broke the law, you are free to go about your business. It doesn't matter what ideas are floating in your head. It doesn't matter what your politics are, what your religion is, or whether neoconservative ideologues like you or not. If you conform your conduct to the requirements of the law, you are free to thumb your nose at those jokers. The fact that, to the extent that they control the apparatus of government they are obliged to prove any allegation of wrongdoing means that you can even stray outside the bounds of the law in small and discrete ways. This is what "limited government" means. It means that the government can only do so much to impose order, and that a certain level of disorder is inevitable. It forces the government to deal with disorder -- insurgency if you will -- by means of the political process, instead of by means of raw governmental coercion.
You should be able to discern why conservatives -- neo and otherwise -- have a hard time with the rule of law, whatever their pious declarations about it. They think the "rule of law" means the rule of their bourgeois culture -- a mistake Marxists share, oddly enough. They think, in their authoritarian minds, that the "rule of law" is to restrain their enemies, not them. In fact, the rule of law restrains everybody, and indeed, restrains the "king" first. The rule of law restrains THEM -- something conservatives have neither understood nor accepted. They complain that the rule of law gives certain advantages to insurgents and outlaws. They're actually right about that. The rule of law is what prevents any government -- and the hegemonic forces that support it -- from becoming what we would call "totalitarian." It is what forces any government to confront political opposition by means other than force. It is what promotes and leads to "political solutions" and forces otherwise coercive government to deal with grievances, and build broad based support. Conservative rhetoric in opposition to "compromise" and which demonizes "liberals" and any other political opposition as wholly illegitimate, is obviously at odds with a rule of law that requires them to deal with their political opponents within the bounds of the law. They don't want to do that -- and the conduct of conservatives in this country recently, and in authoritarian cess pools over the past fifty years, demonstrates their preferred mode of dealing with their political "enemies." That mode is violence -- and is specifically excluded under the rule of law, except within the narrow confines of legitimate law enforcement.
The fourth circuit has clearly reasserted the rule of law, including specifically its meaning within the context of "terrorism" as a species of criminal activity. We are "at war" with terrorism in precisely the same way that we are "at war" with "drugs." We aren't really "at war" in the sense that we are not engaged in one of those "international conflicts" that turn outlaws into enemy soldiers. Terrorists, like drug traffickers, are outlaws, to be dealt with according to establish legal procedure -- a legal procedure that has been sufficient for our various governments to accumulate two million prisoners. Legal theorists like John Yoo, and his fellow traveller, Harvey Mansfield, they reveal their true colors as authoritarians precisely when they are confronted with this holding of the fourth circuit.
I think any president, once they see the kind of threat that the country is under, the kind of enemy we're fighting, would still need to have these options available. Let me give you one example. If we went back to the way things were on Sept. 10, every al Qaeda operative we captured would have to go undergo a trial, just be like Zacarias Moussaoui. His one trial threw the courts into fits for five years and never even went to a real trial.
Think about that. Every single al Qaeda operative would put you in that same position and you'd have no opportunity to get intelligence information from them because they'd all get lawyers and Miranda rights. And that's really the most important thing, is that the next president have these tools so that they can get intelligence about any pending attacks on the United States.
Professor Yoo apparently has no familiarity with standard operating procedure for federal prosecutors handling cases involving organized crime. It's real simple. They charge the shit out of lower level flunkies, threatening them with decades in prison, then cut them deals in exchange for testimony. In a sense, it isn't all that different from torture, except there isn't any actual, you know, torture. They get the goods on you and threaten to put you under the jail. Most folks in that situation muster some intel in exchange for a tolerable sentence. As for how reliable that intel is, well, isn't that the same problem with intel extracted by waterboarding?
The fourth circuit of course, isn't buying. They don't recognize any talismanic significance to "September 11," but recognize that the constitution remains in force. As for the "unitary executive," here is what they said.
In light of al-Marri’s due process rights under our
Constitution and Congress’s express prohibition in the Patriot Act
on the indefinite detention of those civilians arrested as
terrorist aliens within this country, we can only conclude that
in the case at hand, the President claims power that far exceeds
that granted him by the Constitution.
We do not question the President’s war-time authority over
enemy combatants; but absent suspension of the writ of habeas
corpus or declaration of martial law, the Constitution simply does
not provide the President the power to exercise military authority
over civilians within the United States. See Toth, 350 U.S. at 14
([A]ssertion of military authority over civilians cannot rest on
the President’s power as commander-in-chief, or on any theory of
martial law.). The President cannot eliminate constitutional
protections with the stroke of a pen by proclaiming a civilian,
even a criminal civilian, an enemy combatant subject to indefinite
military detention. Put simply, the Constitution does not allow
the President to order the military to seize civilians residing
within the United States and detain them indefinitely without
criminal process, and this is so even if he calls them enemy
combatants.
A well-established purpose of the Founders was to keep the
military strictly within its proper sphere, subordinate to civil
authority. Reid, 354 U.S. at 30. In the Declaration of
Independence our forefathers lodged the complaint that the King of
Great Britain had affected to render the Military independent of
and superior to the Civil power and objected that the King had
depriv[ed] us in many cases, of the benefits of Trial by Jury.
The Declaration of Independence paras. 14, 20 (U.S. 1776). A
resolute conviction that civilian authority should govern the
military animated the framing of the Constitution. As Alexander
Hamilton, no foe of Executive power, observed, the President’s
Commander-in-Chief powers amount to nothing more than the supreme
command and direction of the military and naval forces. The
Federalist No. 69, at 386 (Alexander Hamilton) (Clinton Rossiter
ed., 1961). That military powers of the Commander in Chief were
not to supersede representative government of internal affairs
seems obvious from the Constitution and from elementary American
history. Youngstown, 343 U.S. at 644 (Jackson, J., concurring)
(emphasis added). For this reason, the Supreme Court rejected the
President’s claim to inherent power to use the military even to
seize property within the United States, despite the Government’s
argument that the refusal would endanger the well-being and safety
of the Nation. Id. at 584 (majority opinion).
Of course, this does not mean that the President lacks power
to protect our national interests and defend our people, only that
in doing so he must abide by the Constitution. We understand and
do not in any way minimize the grave threat international terrorism
poses to our country and our national security. But as Milligan
teaches, the government, within the Constitution, has all the
powers granted to it, which are necessary to preserve its
existence. Milligan, 71 U.S. at 121. Those words resound as
clearly in the twenty-first century as they did in the nineteenth.
Couldn't have said it better, myself.