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Civil Liberties Hysteria By: Henry Mark Holzer
FrontPageMagazine.com | Wednesday, July 02, 2003


Andrew Napolitano – Fox News’ “Senior Judicial Analyst” – recently wrote an Op Ed piece for The Los Angeles Times about our War on Terrorism’s latest “enemy combatant,” one Ali Saleh Kahlah Al-Marri (“Ali”).   

In essence, Judge Napolitano uses Ali’s recent designation by President Bush as an “enemy combatant” to complain that the government is making an “end run around the Constitution.”  Not only is Napolitano's unsupportable charge based on an inapplicable Supreme Court decision, but in making that allegation he missed the crucially important issue of the Ali affair, one central to our War on Terrorism.

The government has made two previous “enemy combatant” designations in addition to Ali, both of American citizens.  Jose Padilla, the so-called dirty bomber was arrested in Chicago.  Yaser Hamdi, sometimes referred to as Taliban John II, was captured in Afghanistan.

“In all three of these cases,” according to Napolitano, “the government relies for support on a misunderstood U.S. Supreme Court decision in the World War II Quirin case.  The court allowed President Roosevelt to arrest, charge and try before a military tribunal eight German soldiers who made to our shores. The eight were, the court declared, enemy combatants because they were uniformed soldiers of a foreign government on which the U.S. had declared war.  Nowhere in the Quirin opinion did the court say the president had blanket authority to declare anyone an enemy combatant at the request of the attorney general.  Nowhere did the court say the president could indefinitely lock up anyone who didn’t cooperate with the Justice Department.”  (Emphasis added).

Not true.

In Quirin, eight German would-be saboteurs were launched from occupied France in two submarines. Four landed on Long Island, the other four in Florida.  When they were captured, all wore civilian clothes.  Although Mr. Napolitano characterizes the eight as “soldiers,” the indisputable facts, as found by the Supreme Court of the United States in its Quirin decision, are that the eight were trained enemy agents sent here to destroy American war industries.

Tried before a Military Tribunal created by a presidential Executive Order, eventually the case of the eight saboteurs reached the Supreme Court of the United States.  There, within the larger category of “enemy combatant,” the Court made a distinction between combatants who were “lawful” and those who were “unlawful.” (Sometimes in the Court’s opinion the word “belligerent” is used in place of “combatant.”)

Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces.  Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and  punishment by military tribunals for acts which render their belligerency unlawful.  (Emphasis added).

That’s fine.  But what, according to the Supreme Court, is the difference between a “lawful” and an “unlawful” combatant?

"The spy who secretly and without uniform passes the military lines of a belligerent in time of war, seeking to gather military information and communicate it to the enemy, or an enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property, are familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoners of war . . . ."  (Emphasis added).

The Court added:

"Our government, by thus defining lawful belligerents entitled to be treated as prisoners of war, has recognized that there is a class of unlawful belligerents not entitled to that privilege, including those who though combatants do not wear 'fixed and distinctive emblems' [uniforms]." {Emphasis added].

The Court’s use of the characterization “enemy combatant” in discussing “lawful” and “unlawful” combatants is significant.  That characterization established that the major category is “enemy combatant” (i.e. a belligerent), who can be either “lawful” (i.e., in uniform) or “unlawful” (i.e., not in uniform).  This analysis makes Ali – arrested in the United States, not in uniform – if there are facts to support his belligerency, an enemy combatant of the unlawful type.

Thus, when Mr. Napolitano writes that “[n]owhere in the Quirin opinion did the court say the president had blanket authority to declare anyone an enemy combatant at the request of the attorney general.  Nowhere did the court say the president could indefinitely lock up anyone who didn’t cooperate with the Justice Department,” he is mistaken.  The Quirin Court made it very clear that an enemy combatant of the unlawful type can be detained, tried by a Military Tribunal, and eventually put to death if he is convicted of a crime cognizable by that court.

Accordingly, Mr. Napolitano should have been discussing, not Ex parte Quirin, but the more important Hamdi case, and not whether the Executive Branch is trampling the Constitution, but rather the more important question of the judiciary’s role in the War on Terror.

Yaser Esam Hamdi served in Afghanistan with the Taliban/al-Qaeda, was captured by the Northern Alliance, and turned over to United States forces.  From Afghanistan, Hamdi was taken to Guantanamo Bay, his American citizenship was verified, he was classified as an enemy combatant, and then transferred to the Norfolk Naval Station Brig in April 2002 where he has remained ever since.

Given that Hamdi is an American citizen, and that a Petition for a Writ of Habeas Corpus he filed thus raised serious constitutional questions, the trial judge referred the following question to the United States Court of Appeals for the Fourth Circuit: “Whether a declaration by a Special Advisor to the Under Secretary of Defense for Policy setting forth what the government contends were the circumstances of Hamdi’s capture [which led to his being designated an “enemy combatant”] was sufficient by itself to justify his detention.”  This question – the scope of judicial oversight concerning Executive Branch “enemy combatant” classifications – cuts to the core of the judiciary’s role in the War on Terror.

The United States Court of Appeals for the Fourth Circuit unanimously (3-0) held:

"Because it is undisputed that Hamdi was captured in a zone of active combat in a foreign theater of conflict, we hold that the submitted declaration [by a Special Advisor to the Under Secretary of Defense for Policy] is a sufficient basis on which to conclude that the Commander in Chief has constitutionally detained Hamdi pursuant to the war powers entrusted to him by the United States Constitution.  No further factual inquiry is necessary or proper, and we remand the case [to the trial court] with directions to dismiss the petition [for the writ of habeas corpus]." (Emphasis added).

Why the Court of Appeals reached this conclusion, and what bearing it has on the Ali case, provides a preview of what is likely to be the role of the judiciary in the ongoing war against terrorism.

As the court acknowledged, “Yaser Esam Hamdi is apparently an American citizen.  He was also captured by allied forces in Afghanistan, a zone of active military operations.  This dual status – that of American citizen and that of alleged enemy combatant – raises important questions about the role of the courts in times of war.” 

Here’s how the Court of Appeals answered those questions.

First, the court recognized the venerable constitutional principle that there ought to be, always has been, and is now, deference, not abdication, by the judicial branch to the political branches – the President and Congress – in wartime, especially regarding matters of foreign policy, national security, and military affairs.  Scores of Supreme Court cases have supported this principle.  The deference is rooted in the express grants of constitutional power to Congress in Article I and to the President in Article II, and thus in the fundamental constitutional principle of separation of powers.  Contrary to what most liberals and Leftists think, not every governmental decision in our Republic is, or ought to be, subjected to judicial review – especially those concerned with foreign policy, national security, and military matters.  (The Court of  Appeals noted also that even though our presence in Afghanistan might not fit the conventional description of “war,” nonetheless “the nature of the present conflict [does not] render respect for the judgments of the political branches any less appropriate.  We have noted that the political branches are best positioned to comprehend this global war in its full context . . .  and neither the absence of set-piece battles nor the intervals of calm between terrorist assaults suffice to nullify the warmaking authority entrusted to the executive branches”).

In sum, the President and Congress possess “war” powers, which include the power to designate certain persons as “enemy combatants.”  In Hamdi’s case – because he was captured in Afghanistan as a member of the Taliban/alQaeda – he was so designated, and incarcerated.  As an American citizen, Hamdi had a right to petition for a writ of habeas corpus challenging his detention.  Under the Constitution, the courts had a duty to consider that petition. But because Hamdi’s incarceration was pursuant to war powers, under separation of powers doctrine the courts possessed only a limited review role.  That role consisted of ascertaining that the government had made a prima facie showing of facts sufficient to support its “enemy combatant” designation.  Or, in the Court of Appeals own words:

One who takes up arms against the United States in a foreign theater of war, regardless of his citizenship, may properly be designated an enemy combatant and treated as such.  The privilege of citizenship entitles Hamdi to a limited judicial inquiry into his detention, but only to determine its legality under the war powers of the political branches.  At least where it is undisputed that he was present in a zone of active combat operations, we are satisfied that the Constitution does not entitle him to a searching review of the factual determinations underlying his seizure there.  (Emphasis added).

Accordingly, said the court:

"We hold that, despite his status as an American citizen currently detained on American soil, Hamdi is not entitled to challenge the facts presented in the [Special Advisor’s declaration].  Where, as here, a habeas petitioner has been designated an enemy combatant and it is undisputed that he was captured in a zone of active combat operations abroad, further judicial inquiry is unwarranted when the government has responded to the petition by setting forth factual assertions which would establish a legally valid basis for the petitioner’s detention." (Emphasis added).

There’s the rub.

Hamdi was “captured in a zone of active combat operations abroad” in uniform (rag-tag as it may have been), making him an enemy combatant of the lawful type and thus a prisoner of war. 

Ali, on the other hand, was captured in Peoria, Illinois, not in uniform.  Ordinarily, under the Quirin analysis, that would make him (if the supporting facts exist) an enemy combatant of the unlawful type and thus not only a prisoner of war, but also subject to trial and punishment by a Military Tribunal.

However, in the Hamdi case, the Court of Appeals seemed to root its “hands-off” decision in the fact that the enemy combatant had been “captured in a zone of active combat operations abroad.”  If that is what the court’s decision turned on (and it appears to), the circumstances of Ali’s arrest in Peoria does not augur well for the government’s attempt to classify and treat him as an “enemy combatant.”

Because this is the message of the Ali case, Mr. Napolitano need not worry too much that the government will succeed in “making an end run around the Constitution.”


Henry Mark Holzer, Professor Emeritus at Brooklyn Law School, is a constitutional lawyer and author most recently of The Supreme Court Opinions of Clarence Thomas, 1991-2006, A Conservative’s Perspective.



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