Andrew C. McCarthy's Blog, page 35

Penn State Pedophilia Case: A Day at the Circus

One of the sad spectacles of post-Clinton America is the media's gushing admiration for the strategic game-planning of deceit. It's center stage today in Bellefonte, Pennsylvania, where lawyers for Jerry Sandusky -- who is charged with more than 50 counts of child sexual abuse during his tenure as assistant coach of the Penn State football team -- waived his preliminary hearing.

Different jurisdictions have different rules of criminal procedure, but preliminary hearings are routinely either obviated by the filing of a formal indictment or waived by the defense. This is because they are not hearings to establish guilt beyond a reasonable doubt (the standard for conviction at trial). They are probable cause hearings, ensuring that there is the mere threshold of evidence required to refer the case to a trial court. In federal procedure and in many states, preliminary hearings almost never happen because the grand jury must find probable cause in order to file an indictment. So, if -- as generally happens -- the grand jury files its indictment (or the defendant agrees to plead guilty) before a the preliminary hearing date, there will be no need to have the hearing. 

In some states, the grand jury's indictment is not deemed to settle the matter of whether there is probable cause to warrant a trial. Instead, defendants are entitled to have judges basically check the grand jury's work. Pennsylvania is such a state. But what little advantage there may be for the defense in forcing a preliminary hearing (they get to hear the testimony of relevant witnesses) is usually outweighed, especially in a high profile case, by significant downsides: (a) the defendant has no real chance of getting the case thrown out because the bar of probable cause is so low; (b) losing the hearing will often be reported in the media as if it were being convicted at trial -- so it's like a second round of ruinous publicity after the initial arrest; and (c) if there are plea negotiations, the prosecutor will demand a more severe plea because the defendant has forced an unnecessary proceeding in which victim witnesses are put to the anxiety of testifying.

So here is what Sandusky and his lawyer, Joseph Amendola, did today: they made everyone, including the judge, the prosecutors, and the media, think that they were not going to waive the preliminary hearing. That forced the prosecutors to make the witnesses show up and be prepared to testify, which in turn got the press totally spun up about the prospect of flesh-and-blood, emotionally damaged victims reliving the horrors described in the grand jury's findings. At the last moment, Amendola advised the court that Sandusky did not want the hearing after all. The titillated media, anxious to fill the coverage void, then predictably invited Amendola to conduct a lengthy press conference outside the courthouse. Exploiting this well orchestrated opportunity, Amendola proceeded to maintain Sandusky's innocence, wax about how anxious his client purportedly is for the trial to start, and spin the narrative according to which he hopes the press will cover the case in the weeks leading up to a trial (if there is one).

That narrative is ludicrous. Amendola -- with the nod and wink of one who has access to inside information -- insists that everywhere you sift through the evidence, you find Mike McQueary lurking. McQueary -- a profile in cowardice expertly profiled by Mark Steyn a few weeks back -- is the graduate assistant who alleges that, in 2002, he saw Sandusky sodomize a 10-year-old boy in the locker room shower.

McQueary was found highly credible by the grand jury. Yet, Amendola -- who grudgingly acknowledged that he has not yet seen the transcript of McQueary's grand jury testimony -- intimates that the witness is perjurer. As he tells it, this means the whole case will collapse because McQueary is such a central figure. Of course, when you read the grand jury's report, you quickly see that there are at least 10 victims who've come forward, independently alleging serial acts of rape and sexual abuse by Sandusky over a period of years, corroborated by other witnesses who saw strange behavior, confronted Sandusky, and confirm various disturbing details. In fact, while McQueary's testimony may help the prosecution's case, it appears unnecessary. He is the kind of witness who may be extremely helpful to the prosecution's investigation of the case but is collateral to the trial. The trial will focus on the victims the investigation has identified; McQueary would be among the witnesses least interesting to the jury.  

This is all pretty elementary. Yet, the media love to be lied to. When I was a kid, "Don't insult my intelligence," was a commonly heard rebuke. Not anymore. These guys love not only to be spun but to talk about how deft the spinning is even as it is happening. Even as Amendola bluntly explained that waving the hearing was a tactical decision aimed at avoiding a public airing of the accusations, the geniuses on ESPN (whose extensive coverage of this "sports story" includes a veteran defense lawyer) pronounced the day a "victory" for Sandusky. They marveled at how, as a result of Amendola's strategy, they themselves were now talking about the defense's version of events rather than the testimony of ten sexual assault victims. And meantime, they added, by sparing the victim witnesses the emotional strain of testifying, Amendola had shrewdly left the door open for a guilty plea on more favorable terms. 

If I were the prosecutor, I'd more likely remember how Sandusky and Amendola inflicted on the victim witnesses the emotional strain of believing, until the last second, that they'd be forced to testify about the awful things allegedly done to them -- and how the whole drama was played out for no higher purpose than to shape the press coverage for a few weeks. And as for the press coverage, I think it tells us a lot more about the press than about Mr. Amendola's prowess.

Jihadist Who Helped Kill U.S. Soldiers in Iraq Charged As Civilian Defendant

I've spent a lot of the last week, including in today's column, debating U.S. combatant detention policy with Sen. Rand Paul (R., Ky.). Last week, during the debate over the McCain-Levin amendment to the defense authorization bill, Sen. Paul seemed to call for a return to pre-9/11 counterterrorism policy -- meaning bringing our wartime enemies into civilian court where they would be given all the rights of American citizens. When I pointed this out, Sen. Paul claimed that I was misrepresenting his position. He was really only going to bat for U.S. citizens alleged to be enemy combatants, he said.

If that is the case, I wonder if he'll join me in expressing concern about today's announcement by the FBI that the Justice Department has filed a civilian indictment against Faruq Khalil Muhammad 'Isa in U.S. District Court in Brooklyn. 'Isa is a Canada-based Iraqi who belongs to an international network of jihadists that recruited suicide bombers to conduct deadly terrorist attacks targeting United States military personnel fighting in the war in Iraq.

Specifically, the indictment charges 'Isa with the murders of five American soldiers in a suicide bombing attack on the U.S. Army's forward operating base in Mosul on April 10, 2009 --Staff Sergeant Gary L. Woods (age 24), Sergeant First Class Bryan E. Hall (32), Sergeant Edward W. Forrest Jr. (25), Corporal Jason G. Pautsch (20), and Private First Class Bryce E. Gaultier (22). The indictment also charges 'Isa with conspiring to kill Americans abroad and providing material support to terrorism.

According to the criminal complaint filed several months ago, when Canadian authorities arrested 'Isa after a lengthy investigation, the network also bombed a police complex in Mosul on March 31, 2009, killing seven people and wounding another 17. The complaint makes clear that 'Isa performed his role in Canada, helping recruit suicide bombers to be smuggled into Iraq from Libya and Syria -- motivated by a mainstream construction of sharia (Islamic law) that calls on Muslims to attack non-Muslim forces that invade and occupy Muslim countries. It is alleged that 'Isa also wanted to join the fighting against American troops in Iraq and, failing that, planned to conduct terrorist attacks in the West. 

The complaint also makes clear that, after participants in the attacks in Iraq were captured by allied military forces, they were turned over to the FBI for questioning -- presumably under law-enforcement protocols (i.e., Miranda warnings).

One would think, especially after last week's debate on detention policy, that wartime attacks on our troops in combat theaters would be a textbook case for detention under the laws of war and war-crimes trials by military commission. Yet, this case is plainly being handled as a law-enforcement matter.

The Obama administration is seeking 'Isa's extradition from Canada. Assuming the Canadian government agrees to transfer him, the plan is to give 'Isa a civilian trial in Brooklyn. If it is being done that way because the Canadian government is insisting on civilian prosecution as a condition of agreeing to extradition, that would be one thing -- our choice would be to agree or forego any prosecution at all. But nothing in the reporting I've seen indicates that civilian prosecution is being forced by Canadian authorities. It appears to be our own government's preference to treat these acts of war as civilian criminal offenses. 

The Real Rules of Detention

Earlier this week, Sen. Rand Paul (R., Ky.) responded to my column from last weekend, which criticized (a) his endorsement of enhanced constitutional protections for alien enemy combatants (the practical effect of his call for a return to pre-9/11 counterterrorism), and (b) his proposals to bar the government from subjecting to indefinite military detention al-Qaeda operatives who happen to be American citizens. Senator Paul’s rejoinder described my first claim as a misleading “strawman,” then rehashed his arguments on behalf of American citizens who join our enemies’ war against us. I’ve already addressed the “strawman” complaint. In this column, I undertake to refute Senator Paul’s arguments against law-of-war detention for American enemy combatants.

#ad#Those arguments fare no better in the retelling than they did when the Senate decisively rejected them last week. It is true, as Senator Paul says, that “civil liberties need defenders.” Those defenders, however, are not much good if they don’t even grasp how ordinary law-enforcement works, let alone how civil liberties have historically been subordinated to wartime national-security needs -- and I refer here not to faux “needs” like abusive TSA groping of patently non-suspicious Americans, but to the real danger posed by treating traitorous enemy combatants as if they were mere criminals.

Unfortunately, Senator Paul, though a stellar medical doctor, is a law-enforcement dilettante. Have you heard the refrain, “If you see something, say something”? Most Americans appreciate that the authorities mean “something” that arouses reasonable suspicion. Not Senator Paul: He frets about an FBI publication that lists some traits that the public should be alert to -- “possession of ‘Meals Ready to Eat,’ weatherproofed ammunition, and high-capacity magazines; missing fingers; brightly colored stains on clothing; paying for products in cash; and changes in hair color.”

Empirically, these traits have coincided with participation in terrorist plots. Acknowledging that unremarkable coincidence, however, does not extinguish our common sense -- we also know that the presence of one, two, or even several of these traits may have nothing to do with terrorism. In his paranoia, though, the senator has convinced himself that one or two such indicators, standing alone, could result in American citizens’ being designated as enemy combatants and detained for untold years without trial or due process. The medical analogue would be that, upon spotting a single contusion, a doctor peremptorily diagnoses leukemia and commences aggressive chemotherapy.

Does Senator Paul seriously think the government jumps pell-mell from checking off an item or two on the FBI’s list to incarceration at Gitmo? I hope not. Palpably, the FBI’s point is that if a person spots something he reasonably thinks is suspicious, he should call the FBI. Pace Senator Paul, the agents do not respond by running right out to make an arrest -- if, while racing up the Capitol steps, you’ve spilled peach-mango sherbet all over your nice white shirt, no one is going to confuse you with Ayman al-Zawahiri.

#page#Instead, the FBI asks a few questions. If it turns out that all the informant saw was a brightly colored clothing stain, an agent politely thanks him for the call, rolls his eyes, and gets back to work. On the other hand, let’s say the informant reports that, besides a bright stain on his shirt, his neighbor also has a few missing fingers and oddly scented smoke floating up from under his door. In that context, the agent may reasonably speculate that the stain and the missing fingers could signal the sort of amateurish mishap that often occurs when would-be terrorists try to mix chemical explosives. But even then, the agent does not run out and make an arrest, designate the arrestee an enemy combatant, and imprison him without trial. Instead, the agent opens an investigation -- in which, you can rest assured, he won’t ask whether the neighbor happens to be a youngish Muslim male, in deference to Muslim Brotherhood–approved investigative protocols.

#ad#Whether or not there are grounds for further investigation, there will be no arrest absent solid evidence that connects the traits observed to likely terrorist activity -- evidence developed by surveillance, witness interviews, insight from more knowledgeable informants, wiretaps, and other standard investigative techniques. Moreover, because this is the FBI, that investigation is likely to be done under the civilian due-process protocols that Senator Paul admires -- grand juries, civilian prosecutors, and federal district judges.

Even a terrorism investigation does not become occasion for leaping to the “enemy combatant” conclusion unless the agents uncover proof of an operational connection to al-Qaeda or the Taliban. Under acts of Congress enacted since 9/11, no one -- no American citizen and no alien -- qualifies for enemy-combatant status absent proof that they either participated in the 9/11 attacks or have abetted those named organizations in their war against the United States. That is why, in the decade since 9/11, most terrorism cases are still handled by civilian courts. That is why, during that decade, fewer than a half-dozen American citizens have been detained as enemy combatants. No one is held without trial over a clothing stain.

But let’s indulge the Paul paranoia and imagine that an agent gets the dirty-shirt call, and that none of the supervisors in the FBI’s extensive national-security chain-of-command pipes up to say, “Hey, it’s crazy to arrest someone -- for terrorism or anything else -- over something so flimsy.” Let’s further assume that the Justice Department’s many layers of supervision go merrily along with this lunatic rush to judgment. Our American citizen detainee would still have a right -- under congressional statutes complemented by Supreme Court decisions and a growing body of combatant law in the D.C. Circuit -- to file a habeas corpus petition challenging his detention in federal district court. And if a wayward judge there somehow denied the petition, the detainee would get to appeal to the D.C. Circuit and, if necessary, to the Supreme Court.

That is, even without a jury trial, the wrongly detained citizen would receive elaborate due process. Indeed, he’d probably win his release more quickly than if he’d been charged with a crime. Many terrorism defendants wait years before their civilian trials start, and most trials take months to complete.

A few other points of rebuttal. Senator Paul is wrong in claiming that the Supreme Court’s 2004 Hamdi decision, upholding the detention of an American citizen as an enemy combatant, has no bearing on terrorists arrested inside the U.S. In Hamdi, the dispositive fact was not that Yasser Hamdi was captured in Afghanistan but that he was an American citizen. That is certainly how the Fourth Circuit Court of Appeals saw it in upholding Jose Padilla’s detention as an enemy combatant even though Padilla, an American citizen, was captured on American soil. Senator Paul’s admiration for civilian courts seems to grind to a halt once they rule against his preference to equate war with crime -- as they have been doing for many decades. Thus, he ignores the Padilla ruling, just as his fleeting allusion to Ex Parte Quirin manages not to mention the Supreme Court’s unanimous approval of the military detention, commission trial, and swift execution of Nazi saboteur Hans Haupt, an American citizen President Roosevelt designated as an enemy combatant.

Nevertheless, it is abundantly clear that due process for all enemy combatants -- and particularly for American citizens, whose entitlement to judicial review has been conceded by the government -- has grown markedly in the 70 years since Quirin was decided. Today’s detainees have exactly the “traditional aspects of constitutional due process” that Senator Paul cites the Hamdi ruling as mandating: notice, an opportunity to be heard, a neutral forum, and (once they get to court) assistance of counsel.

#page#Still, it is worth remembering that the terms “due process” and “civilian trial” are not synonymous. Due process is simply the process that is due under the circumstances. In wartime, it is simply not necessary to grant combatants full-blown civilian trials -- which would be an intelligence coup for our enemies -- in order to ensure that Americans are not arbitrarily detained. Indeed, though Senator Paul conveniently skips over it in his discussion of Hamdi, the Supreme Court explicitly suggested that “an appropriately authorized and properly constituted military tribunal” would be sufficient protection for an American citizen detained as an enemy combatant. The majority opinion elaborated that “military regulations already provide for such process.” The process has only gotten better for combatants in the ensuing seven years -- as have their appellate rights.

#ad#Senator Paul concludes with a self-flattering portrait, pitting his sage worldliness against the naïveté of “some conservatives [who]#...#trust the government to always do the right thing.” As it happens, much of my column concerned the government’s failure to do the right things in the War on Terror -- particularly by pursuing the Islamic-democracy project and spending recklessly without improving our security, matters on which Senator Paul and I agree. Yet, the senator endeavors to board me onto this ship of conservative fools anyway. Just as he mines court rulings for a sentence here or there that, out of context, seems to help him, he quotes me as averring that wartime presidents are “highly unlikely to abuse” the power to detain American citizen combatants. For so saying, I am again said to compare unfavorably against what the senator sees as his authentic conservative temperament. Only he, it seems, is wise enough to see what Madison saw in observing that “since governments are not constituted of angels, we must take care to restrain government with specific rules of conduct.”

Lo and behold, if you read what I actually said instead of Senator Paul’s misconstruing of it, you find that my conclusion about presidents’ being “highly unlikely to abuse” detention authority is not rooted in anything so dreamy as their transformation into cherubs-in-chief. It reflects, instead, the Madisonian assessment that unlike angels, presidents are humans inclined to act in their self-interest. They won’t abuse detention power, I opined, because to do so would violate the oath of office; would result in ruinous political damage, compromising their ability to govern; and would be futile because the courts would vacate the combatant designation -- precisely because, owing to legislation and court decisions, “specific rules” of the type Madison conjured now restrain executive power over enemy combatants.

If Senator Paul, constitutional conservative, wanted a truly relevant Madison quote, he might have considered Federalist 41: “If a federal Constitution could chain the ambition or set bounds to the exertions of all other nations, then indeed might it prudently chain the discretion of its own government, and set bounds to the exertions for its own safety.”

In the real world, our freedoms are an inheritance unavoidably rooted in the capacity of military force -- not legal processes -- to overcome hostile foreign powers. We sensibly restrain military action, including the power to detain Americans who abet our foreign enemies, in order to reduce the chance of error and abuse. But we do so mindful of Madison’s brute observation that, in the final analysis, “the means of security can only be regulated by the means and danger of attack” and will “be ever determined by these rules, and by no others.” If civilian due process can be exploited by the enemy as a weapon to frustrate the war effort -- something that would have shocked the framers, who gave the courts no oversight role in the nation’s conduct of war -- we are not required to abide that situation. We may limit citizen combatants to a reasonable, balanced process -- one that gives them adequate protection against arbitrary detention without granting our ruthless enemies the access to intelligence required by civilian trial disclosure rules.

That balance has worked exceedingly well for ten years, affecting fewer than a half-dozen American citizens -- all of whom were clearly al-Qaeda operatives. To overturn it based on Senator Paul’s fervid imagination would be the antithesis of constitutional conservatism.

—  Andrew C. McCarthy, a senior fellow at the National Review Institute, is the author, most recently, of The Grand Jihad: How Islam and the Left Sabotage America .

Strawman?

The most refreshing thing about Sen. Rand Paul (R., Ky.) -- the thing that comes through in his often admirable speeches and op-eds, as well as in The Tea Party Goes to Washington, the autobiographical account of his political rise -- is that he seems to have the courage of his convictions. It is disappointing, then, that this turns out not to be the case, at least when it comes to enemy combatants.

In his response to my weekend column regarding his efforts to arm enemy combatants with full-fledged constitutional rights in wartime, Senator Paul protests that I have misrepresented his position. He now claims that his effort last week to defeat the combatant-detention provisions in the defense-authorization bill were strictly about protecting American citizens. He accuses me of contending that the debate “was not about American citizens,” and insists that I’ve erected a “strawman” in alleging that he was urging constitutional rights for alien combatants.

#ad#This is claptrap. As anyone who takes the time to read my column knows, not only did I respectfully acknowledge Senator Paul’s arguments insofar as they involved American citizens, but I also rebutted them at considerable length. And what we have here is not a “strawman” but the usual case of a politician’s trying to put distance between himself and an uncomfortable position he no longer has the nerve to defend -- in this instance, Senator Paul’s advocacy of a return to the disastrous pre-9/11 counterterrorism policies that vested constitutional trial rights in America’s alien enemies, a position he reaffirmed less than ten days ago.

It will take some time to show this, mainly because Senator Paul actually spoke extensively on this subject that he now claims had nothing to do with the detainee debate. The senator’s website links to the floor speech he gave on November 29. Consistent with his prior positions -- and with those espoused by his father, Rep. Ron Paul (R., Texas), whose objections to post-9/11 counterterrorism policy Senator Paul frequently lauds -- Senator Paul championed constitutional protections for all enemy combatants, aliens as well as American citizens. While the whole thing is worth reading or listening to, here are some relevant excerpts:

The discussion now to suspend certain rights to due process is especially worrisome given that we are engaged in a war that appears to have no end. Rights given up now cannot be expected to be returned. So, we do well to contemplate the diminishment of due process, knowing that the rights we lose now may never be restored.

My well-intentioned colleagues ignore these admonitions in defending provisions of the Defense bill pertaining to detaining suspected terrorists. Their legislation would arm the military with the authority to detain indefinitely -- without due process or trial -- SUSPECTED al-Qaida sympathizers, including American citizens apprehended on American soil. I want to repeat that. We are talking about people who are merely SUSPECTED of a crime. And we are talking about American citizens.

(Emphases in original transcript on Senator Paul’s website.)

#page#Palpably, Sen. Paul raised two objections. First, on behalf of all al-Qaeda “sympathizers” (i.e., without discrimination between aliens and citizens), he complained about indefinite wartime detention based only on their being “SUSPECTED of a crime” -- note, not an act of war, a crime. He asserted that the Constitution is flouted whenever anyone is indefinitely detained solely due to executive-branch suspicion rather than “due process and trial.”

To be fair, Senator Paul has said he believes the U.S. military invasion of Afghanistan was justified, and he thus concedes that indefinite military detention is tolerable in the case of “battlefield” captures. But there is less than meets the eye to this concession: As last week’s Senate debate elucidated (and as my column noted), Senator Paul’s notion of the “battlefield” is extremely narrow and antique -- more like something out of Braveheart than out of a modern war conducted by a transcontinental terror network that hides within, plots against, and targets civilian infrastructure across the globe, including American cities.

#ad#Senator Paul’s second objection did indeed highlight American citizens, whose military detention, he urged, is even more problematic than that of aliens -- especially if a citizen has been apprehended on American soil. But my column did not dispute this: I acknowledged that much of Senator Paul’s argument focused on American citizens, and I concurred that their treatment as enemy combatants poses tougher constitutional issues than does the military detention and trial of alien combatants. Our disagreement is about how those issues should be resolved. It is disappointing to find Senator Paul pretending that I ignored or obscured his concerns when he knows I spent well over a thousand words outlining and addressing them. I did not hide the ball. I vigorously disagreed with him.

The above excerpt from his speech was far from Sen. Paul’s sole promotion of constitutional rights for non-American combatants. He proceeded to home in on what he framed as post-9/11 counterterrorism’s fundamentally wrongheaded premise -- namely, that al-Qaeda and its affiliates are enemies waging war against us. He sees them as mere criminal suspects and thus elaborated on his view that civilian due process is more than adequate to deal with, as he put it, “international terrorism.”

What, however, would be the practical consequence of a return to what Senator Paul calls our “pre-9/11 police powers”? International terrorism against the United States is overwhelmingly committed by non-Americans. And when you think about trials in terms of the post-9/11 law-of-war paradigm versus Senator Paul’s preference for the pre-9/11 paradigm of civilian due process, you quickly realize that the statutes governing the former do not permit military commissions for American citizens -- only for alien combatants. Consequently, when Senator Paul exhorts us to abandon the law-of-war approach and go back to civilian trials, we must understand that the main beneficiary of such a change would be alien terrorists. His protestations to the contrary notwithstanding, Senator Paul’s argument was necessarily a call for alien combatants to be given the constitutional protections.

#page#But don’t take my word for it. Here’s another excerpt from his speech, worth quoting at length:

The first and flawed premise#...#is that our pre-911 police powers were insufficient to combat international terrorism. This is simply not borne out by the facts. Congress long ago made it a crime to provide, or to conspire to provide, material assistance to al-Qaeda or other listed foreign terrorist organizations. Material assistance includes virtually anything of value -- including legal or political advice, education, books, newspapers, lodging or otherwise. The Supreme Court sustained the constitutionality of the sweeping prohibition. And this is not simply about catching terrorists after the fact, as others may insinuate. The material assistance law is in fact forward-looking and preventive, not backward-looking and reactive.

Al-Qaeda adherents [Note that Sen. Paul is talking about all al-Qaeda adherents, not just those few who are American citizens] may be detained, prosecuted, and convicted for conspiring to violate the material-assistance prohibition before any injury to an American. Jose Padilla, for instance, was convicted and sentenced to 17 years in prison for conspiring to provide material assistance to al-Qaeda. The criminal law does not require dead bodies on the sidewalk before it strikes at international terrorism. Indeed, conspiracy law and prosecutions in civilian courts have been routinely invoked after 9/11, to thwart embryonic international terrorism.

#ad#

Michael Chertoff, then head of the Justice Department’s Criminal Division and later Secretary of the Department of Homeland Security, testified shortly after 9/11#...#that “the history of this government in prosecuting terrorists in domestic courts has been one of unmitigated success and one in which the judges have done a superb job of managing the courtroom and not compromising our concerns about security and our concerns about classified information.”

Moreover, there is no evidence that criminal-justice procedures have frustrated intelligence collection about international terrorism. Suspected terrorists have repeatedly waived both the right to an attorney and the right to silence. Additionally, Miranda warnings are not required at all when the purpose of interrogation is public safety.

To be sure, Senator Paul’s comments are rife with inaccuracies (I’ll come to those momentarily). For present purposes, though, the salient point is that he was advocating that we reject the entire post-9/11 law-of-war paradigm -- indefinite detention, military commissions, interrogations conducted outside the court-created Miranda rule and its exceptions, etc. Senator Paul was arguing that the criminal-justice system is perfectly adequate to safeguard our security. Such an argument is not solely -- or even primarily -- about the treatment of American citizens. It is an argument that all al-Qaeda operatives, aliens and Americans, should be handled as criminal defendants, not war enemies (unless they’ve been captured on a traditional battlefield).

Again, Senator Paul’s list of claims about the virtues of civilian justice in wartime are wrong. To take his points one by one:

#page##*# Far from being an “unmitigated success,” the pre-9/11 Clintonian strategy -- national-security-by-criminal-prosecution -- was a catastrophic failure: A few dozen guilty verdicts cannot erase the civilian legal system’s utter incapacity to reach thousands of jihadists in their overseas safe havens (including, to name just two, Osama bin Laden and Khalid Sheikh Mohammed -- who operated with impunity under civilian indictments for a combined two decades before finally being neutralized by law-of-war protocols).

#*# While Jose Padilla, an American citizen, was convicted in civilian court, Senator Paul conveniently neglects to mention that he could not be tried in that forum for the conduct that was the rationale for detaining him as an enemy combatant: his al-Qaeda plot to attack American cities. Civilian due-process standards would have required the disclosure of virtually everything the government knew about al-Qaeda, as well as the sources of that intelligence. Had the Justice Department not been fortunate enough to uncover an unrelated offense involving support for terrorism overseas, our stark choice would have been to hold Padilla as an enemy combatant or to release him. Reliance on good luck is not a very promising security strategy.

#ad##*# Criminal prosecution significantly compromises intelligence. This fact owes not only to the disclosures of intelligence that due-process rules mandate, and the revelations of intelligence that are an unavoidable aspect of eliciting trial testimony, but also to impediments that civilian due process imposes on intelligence gathering, such as Miranda. Contrary to Senator Paul’s claims, many terrorists who are given Miranda warnings do, in fact, invoke the rights to remain silent and to assistance of counsel. In fact, in my mid-Nineties prosecution of the Blind Sheikh’s terror cell, not only did nearly all 14 defendants invoke Miranda rights, but our evidence further showed that they were trained to do so in the event of arrest. And even though some terrorists do waive Miranda rights, as Senator Paul asserts, I wonder if he knows that al-Qaeda trains them to do so after delaying until a point when much of what they know is too stale to act on -- and until they have been given lawyers who can bargain for a more lenient plea deal in exchange for information. That is, our enemies actually build our civilian due-process restraints into their calculations; these protections enable arrested terrorists to create the illusion of cooperation. And even if Senator Paul were correct that all terrorists routinely waive Miranda rights -- and, to repeat, he’s wrong -- imposing Miranda on wartime interrogations puts our enemies, rather than our national-security agents, in charge of what we get to learn about the enemy’s operations.

#*# Finally, the jurisprudence of Miranda’s “public safety” exception is unsettled. Some courts hold that public-safety concerns end once the suspect is safely in custody, at which point Miranda warnings must be given. So even if the public-safety exception applies, interrogations will still be cut off by Miranda long before agents can pry all the useful information from an apprehended terrorist.

But let’s put aside Senator Paul’s many misconceptions about terrorism cases and cut to the chase: His plea in favor of returning to pre-9/11 civilian due process for our wartime enemies is not a fringe position. The contention that we should scrap the law of war and go back to endowing all international terrorists with full constitutional protections is drearily conventional among libertarians of the Rand/Ron Paul bent of mind, progressive legal scholars, congressional Democrats, and Obama-administration officials. Yet, having parroted this argument only a week ago, Senator Paul would have you think he never made it. He clearly has no interest in trying to defend it. He prefers to pretend that I made it up out of whole cloth.

#page#Now if, after due consideration, Senator Paul has suddenly realized he’s been wrong all along -- if he now wants to abandon his argument that we should return to “pre-9/11 police powers,” under which alien terrorists were given full constitutional protections -- that is great news. If he now prefers to confine his objections to the law-of-war treatment of American citizens only, that is a welcome development. I hope he’ll announce with clarity that he no longer thinks we should go back to the pre-9/11 approach; that he now realizes that strategy was inadequate to protect the country from alien terrorists; and that he now supports indefinite detention and military-commission trials for alien members of al-Qaeda and the Taliban, no matter where they are captured -- whether on a traditional battlefield; in a covert capture operation in some Asian, European, or African hideout; or on an American street. If he is really concerned only about U.S. citizens, as he now insists, his remarks last week do not bear that out. He ought to be happy to clarify them.

#ad#As for the senator’s latest objections to law-of-war detention for enemy combatants who happen to be American citizens, they are as unconvincing in the retelling as they were when they were decisively rejected in the Senate last week. I will address them in a subsequent column.

— Andrew C. McCarthy, a senior fellow at the National Review Institute, is the author, most recently, of  The Grand Jihad: How Islam and the Left Sabotage America .

Holy Land Foundation Hamas Support Convictions Affirmed

Given the lengths to which the current administration goes to portray the Muslim Brotherhood -- inside and outside the United States -- as a "moderate," "largely secular" organization, it's nice to see any part of government recognize it for what it is: an Islamist conglomerate dedicated to the destruction of Israel and committed to raising millions of dollars to support accomplishing that end through a jihadist war.

In Texas today, the U.S. Court of Appeals for Fifth Circuit has upheld the convictions of five jihadists behind the Holy Land Foundation, the piggy bank set up by the Brotherhood in the U.S., under the guise of "charity," to fund Hamas to the tune of tens of millions of dollars during the deadly intifada.

The three-judge panel's unanimous 170-page opinion recounts that Hamas was created by Brotherhood operatives in 1987 as the Brotherhood's "Palestinian branch." Thereafter, "the Muslim Brotherhood directed its world-wide chapters to establish so-called 'Palestinian Committees' to support Hamas from abroad." In the U.S., the "Palestine Committee" was led by Mousa Abu Marzook (who, for a time in the early Nineties, actually ran Hamas from his home in Virginia). The Palestine Committee created not only the Holy Land Foundation but a number of other Islamist entities in the U.S. The leaders of one of those entities, the Islamic Association for Palestine, subsequently created CAIR -- the Council on American-Islamic Relations, which was cited as an unindicted co-conspirator in the case.

As the Fifth Circuit further explains, after the Oslo Accords were signed, Brotherhood operatives in the Hamas support network met in Philadelphia to try to figure out how they could "derail the peace process." The meeting featured "an aura of deception and an intent to hide a connection to Hamas" -- manifested by a decision to refer to Hamas only as "Sister Samah" (Hamas spelled backwards). Subsequently, documents recovered by the FBI at the home of a Brotherhood operative established the Brotherhood's overarching role in the Hamas support scheme, including bylaws showing that the "Brotherhood had directed the collection of 'donations for the Islamic Resistance Movement [i.e., Hamas].'"

Also recovered at that time was the internal memorandum in which the Brotherhood's American leadership asserted:

The Ikhwan [i.e., the Brotherhood] must understand that their work in America is a kind of grand jihad in eliminating and destroying the Western civilization from within and 'sabotaging' its miserable house by their hands and the hands of the believers, so that it is eliminated and God's religion is made victorious over all other religions.

That is why I called my book about the Muslim Brotherhood's war on the West The Grand Jihad. It is what the Brotherhood and its affiliated organizations are about wherever in the world they operate. When you cite the undeniable facts out here in journalism world, they call it "Islamophobia." Fortunately, in American courtrooms, it is still possible to see it for what it is: overwhelming evidence.

It's Trump that Gets Us Whipped Up?

I am at a loss to understand the sudden outrage on the Right, shared by my colleagues in this morning's editorial, over the fact that Donald Trump is slated to moderate a GOP candidates' debate, to be held for an audience of about eleven people (i.e., two days after Christmas on an obscure cable station).

I carry no brief for Mr. Trump, who is something of a carnival act, and I join the editors in commending Ron Paul, Jon Huntsman, and whoever else among the candidates has the good sense to send his or her regrets. But just to recap, here is a list of just some of the left-leaning moderator/sponsors of the debates -- those that have occurred to date, and others scheduled to occur between now and March 19, 2012: CNN (7 times), NBC News (including CNBC and MSNBC) (5 times), Politico (2 times), Bloomberg, the Washington Post, CBS News, the National Journal (2 times), ABC News (2 times), the Des Moines Register, PBS Newshour (2 times), Google, the St. Petersburg Times, and NPR. 

Moreover, by my quick scan of a Wikipedia entry, it appears that about 22 of the 50 states will have primaries or caucuses that are "open" to some degree -- meaning registered Democrats and self-proclaimed independents will be invited to help choose the Republican candidate. Given that President Obama is unopposed, so there is no reason to vote in the Democratic primaries, there will be many more of these voters than usual in the GOP primaries. Most of them will be working against the GOP in the general election. Therefore, their obvious incentive as primary voters will be to elect not the most worthy GOP candidate but the candidate Obama would be most likely to beat.

So to sum up, we are having debate after debate moderated by left-wing media organizations that, under the guise of objective journalism, actively promote Obama's policies and are, for all practical purposes, an adjunct of the president's reelection campaign. Their charade is more damaging by leaps and bounds than anything Donald Trump could dream of pulling off. Trump, who has been pretty vigorously anti-Obama, at least in the last two years, is an eccentric whose antics are laughed off by most people. In contrast, the reach of these mainstream-media outlets is prime-time limitless, and we are giving them a license not merely to promote themselves but to destroy our candidates even as they suppress meaningful inquiry into Obama's background and sympathetically spin his record as president. Then, once the media get through softening up the GOP contestants, the very close race will be substantially influenced by non-Republican voters who seek the nomination of the candidate most likely to lose to Obama.

The Trump thing is a sideshow. What should appall us is the fact that the overall process is designed to produce a weak (or at least weakened) candidate. I wish we were as whipped up about that as we are over a sure-to-be insignificant debate moderated by Donald Trump -- as opposed to a series of prime-time, nationally televised debates moderated by, say, Democratic strategist George Stephanopoulos or the same CBS News division that fabricated the Bush Air National Guard documents.

Rand Paul, Libertarian Extremist

The Tea Party’s limited-government, constitutional heart is in the right place. But it needs much better guidance about how the Constitution works in wartime.

The defense-authorization bill currently under congressional consideration contains some unremarkable, largely redundant provisions about the treatment of enemy combatants. Naturally, the now-familiar alliance of leftists and libertarian extremists -- self-proclaimed “constitutionalists” all -- attacked with their signature “sky is falling” equanimity. On Wednesday, my column addressed some of the more hysterical arguments posited by Fox News analyst Andrew Napolitano. The real action, however, was taking place on the Senate floor, where Tea Party favorite Rand Paul (R., Ky.) squared off against John McCain (R., Ariz.), leader of the Republican party’s transnational-progressive wing. Sen. McCain, along with another tranzy, Sen. Carl Levin (D., Mich.), sponsored the detention provisions -- which are thus collectively known as the McCain-Levin amendment.

#ad#Now, the fact that two progressives propose a bill does not necessarily make it wrong, but it can make their defense of it inscrutable. Video footage hyped by Reason magazine shows the folly of giving Senator McCain the laboring oar. He is a populist, out of his depth arguing constitutional issues. Perhaps more important, he is an enthusiastic believer in the alchemic power of “democracy” (or, at least, democratic processes such as elections and constitution-writing) to tame the most virulently anti-Western Islamic backwaters -- no doubt owing to the fact that he seems less versed in Islamist ideology than he is in constitutional law.

In my humble opinion (okay, okay, not so humble -- but one I’ve spent years developing), historians will look back on the democracy project as the most damaging national-security development in the post-9/11 era. For one thing, it will be seen as the policy that vested such dangerously misplaced Tea Party credibility in libertarian extremists such as Senator Paul and Judge Napolitano, who, under the Orwellian guise of “constitutionalism,” seek to vest our wartime enemies with the rights and privileges of American citizens (to the full peacetime extent of those rights and privileges).

The quest to quell Islamists by democratic processes has only empowered them. It has done nothing to enhance our security against terrorism. It has wasted hundreds of billions of dollars during a time of economic strife. It has actually provoked our enemies, whose ideology -- which partisans such as McCain urge us to ignore -- calls for waging violent jihad against Western forces that try to implant Western principles in Islamic lands. It has enabled rabidly anti-American Islamists throughout the Middle East to market themselves as “moderate political parties” and bask in the legitimacy the “international community” confers on electoral success -- no matter how fraudulently achieved. It has cheapened true Western democracy by accommodating it to authoritarian sharia.

Worst of all, the Islamic-democracy project has sapped the political will of the American people to take actions that are actually necessary to our defense. Democracy fetishists have worn threadbare the public’s patience. Why confront Iranian aggression or Pakistani duplicity, they wonder, if the price-tag is endless years of nation-building masquerading as warfare? Why bother if our troops are hamstrung in combat, put at risk by rules of engagement that prioritize the safety of ungrateful populations? Why mortgage our children’s future if the pot of gold at the end of the rainbow is a sharia state that despises America?

#page#In their disaffection over the gargantuan waste that has been passed off as vital national-security spending, many Americans -- in particular, many well-meaning tea-party groups dedicated to restoring our nation’s limited-government moorings -- have erroneously lumped authentic national-security needs into their otherwise well-founded indictment of the monstrously expensive and expanding federal usurpation of individual liberty and state sovereignty. The Big Government pendulum is swinging back with a vengeance: Americans are increasingly sympathetic to the argument that any exercise of central government power -- even in legitimate pursuit of national defense, the primary mission for which the framers formed the national government -- is part and parcel of the progressive project to undermine freedom. They now lend an open ear to anti-constitutional claims by the likes of Paul and Napolitano -- and convince themselves that these characters are scoring points because respondents like McCain are inept.

#ad#Well, here are some basic constitutional facts: The United States Constitution is a compact between the American people and the government they created. It endows Americans with protections against U.S.-government overreach. It does not extend to the rest of the world. The central government was created, in large measure, to protect Americans from hostile foreign actors. The Constitution does not grant aliens outside the United States -- especially alien combatants who levy war against the American people -- the protections American citizens enjoy against U.S.-government infringement on their lives, liberties, and property.

Furthermore, the framers understood that international relations -- and particularly relations between the United States and hostile foreign actors -- were political in nature, not legal. These relations, and decisions about the degree to which security made demands on the liberty of American citizens, were to be the province of the political branches -- the government officials who were accountable to the American people and who could be removed if they abused their power or exercised poor judgment. The federal judiciary, which was intentionally insulated from politics, was to have no role in matters related to international relations, national security against foreign threats, or the conduct of war.

Claiming the “constitutionalist” mantle, Senator Paul is currently crusading against the concept of indefinite detention for enemy combatants under the laws of war. It is a deprivation, he claims, of the Constitution’s guarantee of due process. And once the government succeeds in rolling back such guarantees, he insists, they are never restored.

As a matter of constitutional law and of history, this is nonsense on stilts. The framers would have been appalled by Paul’s premise that the Constitution endows alien enemy combatants with the due-process rights of American citizens, particularly combatants who are detained outside the United States, where the writ of neither federal nor state judges runs. The only thing the framers might have found more appalling is the notion that the Constitution licenses lawfare -- i.e., that it permits the American people’s courts (which, other than the Supreme Court, are creatures of statute not required by the Constitution) to be used by foreign enemies to put on trial the armed forces of the American people over the manner in which they conduct wartime combat operations that have been authorized by the American people’s representatives (indeed, overwhelmingly authorized, because after almost 3,000 of us were slaughtered on 9/11, the public broadly demanded that the enemy be subdued).

Paul is attacking the McCain-Levin amendment as if it broke new ground. But the amendment only reaffirms what the Constitution has always provided: Congress has the power to authorize combat operations against foreign enemies, and when it does so, the law of war governs those operations -- except to the extent Congress modifies that venerable corpus. Under the law of war, enemy combatants may be detained indefinitely, which is to say, until either (a) hostilities have concluded, or (b) Congress withdraws the authorization of military force, effectively returning us to peacetime conditions.

#page#Paul’s counterclaims are utterly meritless. He argues that our current hostilities against al-Qaeda and its allies are unique in that there is no end in sight. But no war in history has come with an expiration date. The United States has thus detained without trial millions of alien prisoners -- not just alien combatants but nationals of the enemy state, held solely because their citizenship implied fealty to our foes.

To be sure, a war against transnational terrorists who systematically violate the laws of war by failing to identify themselves as combatants and by targeting civilian populations is different -- and in many ways more difficult to prosecute -- than war against a traditional nation-state. Still, as noted above, the Constitution empowers Congress to account for this by adjusting the law of war to the peculiarities of a given conflict.

#ad#Thus, in the current war, for the first time in our history, Congress has given enemy combatants systematic access to the courts of the United States to challenge their designation as enemy combatants and their trial by military commission -- a traditional law-of-war trial forum that Congress has expressly authorized. Furthermore, the legislative and executive branches have acquiesced in the judiciary’s usurpation of additional powers to review and determine the validity of enemy detention and trial. Consequently, enemy combatants in the ongoing conflict have been given greater legal protections than any enemy combatants in the history of American warfare -- and, quite likely, in the history of the world. To assert, as Senator Paul does, that the indefinite duration of the war equates to a diminution of fundamental due process is just absurd.

But the absurdity does not end there. Senator Paul contends that this purported loss of liberty is permanent. He reasons that once government rolls back due process rights the status quo ante is never restored. But history proves him wrong again and again -- even in the examples he cites.

For instance, Paul is fond of pointing to Lincoln’s unilateral suspension of habeas corpus during the Civil War. What he never gets around to mentioning, however, is that (a) the constitutional prerequisite for suspension of the writ, rebellion, had clearly occurred, and therefore the only legal question concerned which political branch, the president or Congress, had the authority to order suspension; (b) when it returned to session, Congress endorsed Lincoln’s suspension of the writ; (c) after the war, the Supreme Court rejected the executive’s unilateral suspension, thereby refuting Paul’s claim that executive power is never rolled back; (d) after the wartime crisis ended, peacetime norms returned, as they have after every war, again refuting Paul’s contrary claim; and (e) habeas corpus protections have now been granted to the enemy, thanks to the political branches’ acquiescence in the Supreme Court’s Boumediene decision -- in truth, the due-process rights of wartime detainees have substantially increased over time, not ineluctably decreased as Paul maintains they unfailingly do.

The same phenomenon is evident in the exercise of the full range of war powers. Military commissions have been a staple of executive war power since Gen. George Washington resorted to them in the Revolutionary War. Yet, under current law, they must now be authorized by Congress; their due-process components are nearly as robust as civilian trial protections; they feature extensive post-trial appeals including review by the civilian courts; and, by statute, they may be used only against aliens -- the Military Commission Act tribunals have no jurisdiction to try American citizens. The history of commissions has been one of dramatic enhancement of legal protections for aliens and citizens.

The same can be said of surveillance. Until the early 1970s, there were no meaningful protections from physical searches and electronic eavesdropping done for national-security purposes rather than criminal investigation -- the executive branch had unfettered authority. But then the Supreme Court broke new ground by requiring judicial warrants for intelligence gathering against domestic seditionists. The Congress followed in 1978 with the sweeping Foreign Intelligence Surveillance Act, imposing a requirement of judicial review and approval for surveillance operations against agents of foreign powers. Over time, the Justice Department and the newly created FISA court added layers of paralyzing regulation, motivated by hypothetical and irrational fears that national-security powers would be pretextually used to build criminal cases. None of this was called for by the Constitution. To the contrary, the Constitution is designed to maximize government’s power to repel national-security threats. The result of the Justice Department’s gratuitous self-strangulation was its inability to detect and share intelligence that might well have enabled it to prevent the 9/11 atrocities.

#page#Remarkably, Paul and his acolytes point to the 9/11 attacks as the purported evidence that a lavishly funded government security apparatus does not give us any real security. This is a specious assertion, belied by -- to name just one thing -- the many post-9/11 plots that have been thwarted by vigilant surveillance, aggressive interrogation, and military strikes that keep terrorists too worried about their own lives to be very effective at ending ours. To be sure, this does not argue for wasting a fortune on boondoggles that do not advance our security. But it does call for recognizing the real threat to national defense: the unprecedented rights that Paul & Co., in their anti-government extremism, seek to grant America’s enemies. Leviathan is too bloated and performs many domestic functions that ought to be returned to the states and the people. But terrorist plots do not succeed because government is too big and sprawling and inefficient; they succeed because libertarian extremists frustrate government’s ability to perform even those few functions for which we actually need a central government.

#ad#Among the least persuasive of Senator Paul’s many gossamer claims is that the McCain-Levin amendment turns all the world into a battlefield and therefore exposes American citizens to a high risk of arbitrary arrest and detention without trial on the commander-in-chief’s mere claim that the citizens are colluding with the enemy.

The battlefield objection misconstrues the ongoing war in rudimentary ways. We are dealing with a war of aggression by al-Qaeda and its affiliates. We did not seek the war; we were attacked, repeatedly. To see the matter otherwise is to accept as truth the calumnious tropes posited by Rep. Ron Paul (R., Texas), the senator’s father, that we have brought jihadist wrath on ourselves.

In point of fact, the 9/11 attacks, the culmination of Osama bin Laden’s determination to take the jihad global after the Soviets were driven from Afghanistan, were a straightforward application of Islamist ideology in its most ferocious interpretation -- which calls for offensive war until non-Muslim powers are subdued and a worldwide caliphate is established. It is fair enough to say that we ought not meddle in the affairs of Islamic countries unless our vital interests are threatened, and that the effort to reconstruct those countries into Western democracies is -- besides being a fool’s errand -- a profound provocation under Islamist doctrine. But to claim that mass-murder attacks are a foreseeable and seemingly understandable response, and thus that we have only ourselves to blame for Islamist barbarity, is lunatic effrontery.

Al-Qaeda declared war on us. We tried for years to treat their offensive operations as mere crimes fit for civilian prosecution. The result of this strategy -- which was guaranteed to fail because it had no hope of neutralizing the main offenders, ensconced in their overseas safe havens -- was to encourage more attacks. In conducting its war, al-Qaeda eschews any geographical limitations or constraints based on the notion of a traditional battlefield. All Americans, American installations, American interests, and American allies are in their sights -- anywhere, at any time, without any sense of proportion or discrimination between military and civilian targets.

They have made the globe the battlefield. We must respond in kind to effectuate our natural, constitutional, and international rights of self-defense. Were we to declare certain precincts off-limits while they reserved the right to attack, we would be committing suicide. As it is, we are adhering to the laws of war and materially restraining the degree of force our troops may use to vanquish the enemy and defend themselves. If our ruthless enemies respect no boundaries, the federal government cannot fulfill its first responsibility to protect the nation by limiting itself to traditional battlefields -- whatever the term “battlefield” means in a modern age of sneak attacks and mass-destruction weapons. There is nothing in the Constitution or the thinking of the framers that suggests otherwise. In fact, the framers understood, as Hamilton put it, that “security can only be regulated by the means and danger of attack.” Your rules of engagement must address and overcome the enemy’s methods.

#page#This has little or nothing to do with the McCain-Levin amendment. The war has been fought under these understandings for a decade. Under legislation that has long been in effect -- beginning with the 2001 authorization for the use of military force (AUMF), and added to by the Detainee Treatment Act and the Military Commissions Act -- the question of whether a person qualifies as an enemy combatant is controlled by whether he (a) participated in the 9/11 attacks or (b) abetted al-Qaeda, the Taliban, or their affiliates. There have been no geographical, temporal, or nationality limits; and while being captured on a battlefield would be relevant evidence if a person contested his designation as a combatant, it has never been a requirement -- Khalid Sheikh Mohammed would be an enemy combatant regardless of whether he had been captured in Pakistan, in Poughkeepsie, or on Pluto.

In the aforementioned video, Senator Paul pointedly asked Senator McCain whether McCain-Levin would permit the president to designate an American citizen as an enemy combatant and ship him to Gitmo for indefinite detention. The Arizonan wouldn’t (couldn’t?) answer the question, mumbling something about public opinion. But the question deserves an answer.

#ad#Ever since Congress authorized combat operations in 2001, the president has been permitted to treat American citizens as enemy combatants. Such treatment has been exceedingly rare, affecting only four Americans over the course of ten years: Yasser Hamdi, who was captured in Afghanistan; Jose Padilla, who was captured in Chicago; and Anwar al-Awlaki and Samir Khan, who were killed two months ago in a drone strike in Yemen. This paltry number owes to the fact that, contrary to demagogic suggestions by Paul and Napolitano, the president is not free, willy-nilly, to designate just anyone, including political adversaries, as an enemy combatant. Instead, the designation may be applied only to citizens who satisfy the aforementioned statutory definition of an enemy combatant: participation in 9/11 or abetting the alien enemy factions (al-Qaeda, the Taliban, and their affiliates) expressly targeted by Congress.

Could a president abuse such power? Of course -- all power can be abused. McCain-Levin, however, does not make such abuse any more likely than it was before McCain-Levin. More to the point, presidents are highly unlikely to abuse this particular power given that (a) they take an oath to uphold the law, (b) the political downside of intentionally using war powers to abuse Americans, an impeachable offense, would be devastating, and (c) detainees have lavish due-process rights to challenge their designation, so an abusive designation would inevitably result in a court order vacating the designation and directing the prisoner’s release.

Paul’s fretting over American enemy combatants’ potentially being shipped off to Gitmo is also misplaced. The whole point of choosing Gitmo as a detention site was to thwart any argument that federal courts had jurisdiction to intrude. The detention camp is intended for alien enemy combatants only. The degree to which American citizens maintain their constitutional protections outside U.S. territory is an open question, and thus detaining Americans at Gitmo would invite the courts to do exactly what the executive branch wants to forefend: interfere in wartime detention matters. That is why Yasser Hamdi was instantly transferred out of Gitmo when it was learned that he was an American citizen. And it is noteworthy that, while Gitmo was fitted with courtrooms for the conduct of military-commission trials, our law does not authorize such trials for American citizens -- it was assumed that citizens would not be detained or tried at Gitmo.

It might come as news to Senator Paul that this has hardly been a boon for citizen combatants. Gitmo, the most scrutinized prison on the planet, is a model of humane treatment, solicitous to a fault in providing for our enemies’ eccentric dietary, spiritual, recreational, and litigation needs. American combatants Hamdi and Padilla, by contrast, were held in more ascetic domestic military brigs. If they'd had a vote in the matter, they’d very likely have preferred Gitmo -- as, in fact, the actual Gitmo detainees were found to prefer their current straits when the Obama administration raised the possibility of transferring them to the less agreeable climes of suburban Chicago.

#page#In any event, the detention of American citizens as enemy combatants is supported by history and precedent. As Prof. John Yoo points out, Lincoln’s theory of the Civil War was that the secession of the Southern states was invalid; therefore, all citizens of those states remained Americans. Thousands were detained without trial and, as noted above, those detentions were unquestionably lawful once Congress endorsed the suspension of habeas corpus.

This gives rise to the contention -- advanced not by Senator Paul but by Justices Antonin Scalia and John Paul Stevens in the 2004 Hamdi case -- that American citizens may not be detained in wartime, even if they are suspected of fighting for the enemy, absent a formal congressional suspension of habeas corpus. As I observed at the time, there is much to admire in this position. But it is not the only fair reading of the Constitution’s original meaning -- after all, in the same case, Justice Clarence Thomas, himself a staunch originalist, reasoned that the courts had no business interfering with the commander-in-chief’s handling of enemy prisoners in a war authorized by Congress.

#ad#At the end of the day, the Supreme Court has long construed the Constitution to empower the executive branch, in wartime, to detain American citizens indefinitely as enemy combatants. The justices so held in the World War II Quirin case, when an American citizen, Hans Haupt, was among the Nazi saboteurs captured in Florida and Long Island (and not on a battlefield) after being dispatched here by the Führer to conduct terrorist attacks against our homeland. This Quirin rationale was reaffirmed 62 years later in Hamdi: The justices upheld the principle of indefinite wartime detention for American citizens who join the enemy, leaving unresolved the question of how much due process they were entitled to in challenging the executive’s determination that they were enemy combatants (although intimating that this would be significantly less due process than they would receive at a civilian trial during peacetime).

Following Quirin and Hamdi, the Fourth Circuit upheld Padilla’s detention without trial -- a case that was mooted before the Supreme Court could consider it when the Bush administration transferred Padilla to the civilian justice system (where he was convicted#...#albeit not on the conduct that justified his combatant designation). And last December, a federal district court threw out a lawsuit brought by Awlaki’s parents, reasoning that the judiciary lacked the competence to determine whether an American citizen providing operational support to our wartime enemies posed a security threat sufficient to justify the use of lethal force.

In sum, Senator Paul is wrong in every salient particular: Even if there were no McCain-Levin amendment, wartime detention would be constitutionally permissible for enemy combatants; American citizens may be subjected to such detention if they fit the definition of the enemy as Congress has prescribed it; that definition does not make combatant status hinge on whether a person is captured on a battlefield; it is al-Qaeda, not Congress, that has turned the globe into a battlefield; due-process protections for enemy combatants have significantly increased over the course of American history; and it is patently untrue to claim that once the executive branch succeeds in asserting new war powers that have the effect of eroding liberty, those powers are never rolled back -- in point of fact, as conflicts ebb and end, liberty is routinely restored, and often with more safeguards than it previously enjoyed. And contrary to Senator Paul’s constitutionalist pretensions, to call for endowing our alien enemies with constitutional protections and for additional judicial intrusions into war-fighting is a perversion of our founding law.

If Senator Paul really wants to be a constitutionalist, there is a straightforward way to go about it: Propose the repeal of the 2001 AUMF. We are not engaged in a lawless war. The law of war has been invoked under the direction of Congress. One need not concur with Professor Yoo that Congress’s constitutional power to declare war is only about fixing the legal rights and privileges of belligerents in order to agree that fixing those rights and privileges is an essential aspect of Congress’s war power. The actions we take in wartime -- invading enemy sanctuaries, killing and capturing enemy combatants, trying by military commission combatants who’ve committed provable war crimes -- would be illegitimate in peacetime. They are permissible only because Congress has authorized the use of military force against specified enemies.

#page#If Senator Paul does not believe we should be taking these actions, if he does not believe we are really at war, then the constitutional course is to seek withdrawal of the war authorization -- not to leave the AUMF undisturbed while undermining the nation’s capability to fight the war successfully.

It is not like Paul does not have an argument to make. In short order, U.S. forces will withdraw from Afghanistan just as they are almost fully withdrawn from Iraq. If Senator Paul believes that these pull-outs, coupled with the killing of thousands of al-Qaeda operatives including bin Laden himself, have reduced the jihadist threat to a manageable law-enforcement problem, then he should argue that we are no longer in a crisis that warrants combat operations. If military force were not authorized, there would be no grounds for military detention. Because we have made no effort to construct a new legal paradigm for addressing international terrorism, we would return to the pre-9/11 state of affairs: detention and trial only in the civilian justice system. If that’s what Paul believes is the best course, he should say so.

#ad#He would lose that argument. The public knows our enemies have not been defeated, and we’ve seen the terrible wages of fecklessly trying to indict them into submission. Until we come up with a better alternative between war and crime, we need to be on a law-of-war footing to secure the nation. The criminal-justice system has an important role to play, but it cannot protect us.

Were he to focus his argument on war, rather than tinkering around the edges, Senator Paul would move the country toward his direction. Our debt-laden nation has no appetite for more expensive misadventures in sharia-lite democracy building. The public is also very open to the Ron/Rand Paul gospel on reassessing our foreign entanglements. Yes, Americans tend to have a more expansive view than the Pauls of what America’s vital interests are, of the bond between the U.S. and Israel, and of the essential nexus between American prosperity and the global projection of American military might. They are receptive, though, to proposals that we sharply limit our involvement in Islamic countries; that we dramatically reduce the funding and arming of countries that despise us; and that a counterterrorism strategy premised on our capability to gather intelligence and conduct rapid, surgical attacks is preferable to a counterinsurgency strategy that leaves us with very little to show for prohibitively costly years of struggling to win Muslim hearts and minds.

That is where the Tea Party ought to be focusing. That is an agenda that is comfortably within the constitutional framework -- not a farce that pretends the Constitution authorizes the use of force but then ensures that we lose.

— Andrew C. McCarthy, a senior fellow at the National Review Institute, is the author, most recently, of  The Grand Jihad: How Islam and the Left Sabotage America .

A Very Nice Man, but a Constitutional Quack

I have written harsh things over the years about Fox News legal analyst Andrew Napolitano, a former New Jersey state court judge. I've not liked doing so because he is about as charming and gracious a guy as you'll meet. But his commentary on the Constitution -- the subject Fox markets him as an expert on -- is frequently ill-informed, and his meanderings on the combatant-detainee custody provisions (the McCain-Levin amendment) in the defense authorization bill have been irresponsible.

Some of this is addressed in my column from a few days ago, and in my upcoming weekend column, I'll have a lot more to say about the position staked out by Judge Napolitano, more significantly, Sen. Rand Paul. For the moment, though, having just endured more Napolitano malpractice (on Fox & Friends this morning), I'm compelled again to address his constitutional quackery. He claims that McCain-Levin empowers the president to unleash the U.S. armed forces on our homeland and round up American citizens on mere executive say-so. This is just not true. A few counterpoints: 

1. Napolitano either can't read or doesn't understand the difference between arrest and detention. McCain-Levin does not address the power to apprehend someone. It addresses how persons apprehended by the authorities are thereafter to be detained if they fit the statutory definition of "covered persons" (i.e., unlawful enemy combatants). Posse comitatus -- the doctrine that restricts military operations inside the United States -- is not changed at all by the amendment. Domestic investigations and arrests are still to be handled by the FBI and other law-enforcement authorities; the military still limits itself to combat ops overseas. This is exactly how things worked pre-McCain-Levin: In 1942, American citizen combatant Hans Haupt was captured by the FBI inside the U.S. and ordered detained as an enemy combatant by FDR. In 2002, American citizen combatant Jose Padilla was captured by the FBI inside the U.S. and ordered detained as an enemy combatant by Bush 43. The fact that they were detained as enemy combatants under the law of war did not mean the military would have been authorized to capture them in the first place.

2. As the Haupt and Padilla examples demonstrate, the president already has authority (in the ongoing war, under the 2001 authorization for the use of military force (AUMF)), to detain American citizens as enemy combatants. McCain-Levin does nothing to change that, and even if the McCain-Levin did not pass, the president would still have this authority.

3. Napolitano said that, under McCain-Levin, the president gets to detain without trial any American citizen he decides is a terrorist. This is not true. The president can only order the military detention of individuals who fit the definition of "covered person" (i.e., enemy combatant) prescribed by Congress. This excludes not only the overwhelming majority of Americans but even most terrorists. To be a covered person, an individual must either have (a) participated in the 9/11 attacks ten years ago, or (b) be part of, or have meaningfully abetted, not just any terrorist organization but, specifically, al Qaeda, the Taliban, or one of their affiliates who has aligned with them in waging their ongoing war against the U.S. Even if you are a terrorist plotting to blow up an American city, you are not an enemy combatant if you're not operationally connected to al Qaeda and you had nothing to do with 9/11 (which is the situation of most "homegrown" terrorists arrested in the U.S. in the last decade). That is why, out of 310 million American citizens, the number of those designated enemy combatants in the last 10 years is ... four.

4. McCain-Levin says that alien enemy combatants captured overseas must be detained by the military indefinitely, under the laws of war (i.e., they can't be transferred to the U.S. justice system for trial). But it does not require the president to detain either American citizens or lawful resident aliens as enemy combatants -- the president may do so, but he may also send them to the civilian justice system. This is exactly the way things have worked for the last ten years: e.g., President Bush first decided to designate Padilla as an enemy combatant, then later decided to transfer him to the civilian system. McCain-Levin changes nothing in this regard.

5. Napolitano claims that by allowing the president unilaterally to designate even American citizens as enemy combatants, McCain-Levin radically departs from the constitutional norms. This is patently false. The radical departure from the Constitution is the notion that courts get to decide who is an enemy combatant. Somehow, Napolitano never tells viewers that (a) the commander-in-chief and the military have always been supreme among the branches in determining who is an enemy (within the parameters of congressional definitions of the enemy under authorizations of military force); and (b) the Supreme Court in the Quirin (1942) and Hamdi (2004) cases held that the president has constitutional power to designate and detain even American citizens as enemy combatants during wartime.

6. Napolitano finally suggests to viewers that the president's power to designate enemy combatants is unfettered under McCain-Levin. That, too, is patently false. As noted above, the president may not detain just anyone -- even an arrested terrorist must fit the definition of "covered persons" (participation in 9/11 or meaningful operational support of al Qaeda and its allies). Moreover, there is extensive due process attendant to the designation: it is vetted thoroughly in hearings in the military justice system, after which -- based on the Detainee Treatment Act of 2005, the Military Commissions Act of 2006 (as amended in 2009), and the Supreme Court's 2008 Boumediene case -- the detainee may appeal his designation to the U.S. district court, the U.S. Court of Appeals, and finally the U.S. Supreme Court.

Other than that, the Judge really knows his stuff.

Of Course Sharia Is Compatible with Western Democracy!

From here at the hysterical, irrational Islamophobe corner of the Corner, I pass along this cheery AP report from the sharia "democracy" we are building in Afghanistan, governed by a constitution that the State Department helped write:

Afghan president pardons imprisoned rape victim

KABUL, Afghanistan (AP) — Afghan President Hamid Karzai on Thursday pardoned an Afghan woman serving a 12-year prison sentence for having sex out of wedlock after she was raped by a relative.

Karzai's office said in a statement that the woman and her attacker have agreed to marry. That would reverse an earlier decision by the 19-year-old woman, who had previously refused a judge's offer of freedom if she agreed to marry the rapist.

Her plight was highlighted in a documentary that the European Union blocked because it feared the women featured in the film would be in danger if it were shown.

More than 5,000 people recently signed a petition urging Karzai to release the woman. She had the man's child while in prison and raised her daughter behind bars, which is common among women imprisoned in Afghanistan. [ACM - A woman doesn't have to be in a prison to be "imprisoned in Afghanistan."]

... The woman told The Associated Press in an interview last month that she had hoped that attention generated by the EU film might help her get released. With the film blocked, she said that she was losing hope and considering marrying her rapist as a way out. She said her attacker was pressuring her to stop giving interviews.

About half of the 300 to 400 women jailed in Afghanistan are imprisoned for so-called "moral crimes" such as sex outside marriage, or running away from their husbands, according to reports by the United Nations and research organizations. Fleeing husbands isn't considered a crime in Afghanistan.

The EU welcomed the woman's release. 

[Thanks to Andy Bostom.]

Democracy Project Triumph: Islamists Surge Ahead in Egyptian Elections

It would be hard to overstate what a catastrophe the Egyptian elections are shaping into. Reports about stage one of the long process show not only that the Muslim Brotherhood may be getting over 50 percent of the vote; an even more extreme Islamist party -- called "Nour" -- is apparently getting between 10 and 15 percent.

In a bit of sleight-of-hand I've noted before, the media describes as "Salafists" the elements that are even more extreme Islamists than the MB. This is a device to help the Obama administration's assiduous campaign to airbrush the Brotherhood into a "moderate" organization -- one that National Intelligence Director James Clapper so memorably (and ludicrously) described as "largely secular."

Do not be deceived. The MB is itself a Salafist organization. Salafism is a retro-refom movement that seeks to return Muslims to what is seen as the pure Islam of the founding generations (the Salafiyyah -- the "righteous companions" of Mohammed). MB founder Hassan al-Banna was a Salafist. So was Sayyid Qutb -- the most important MB theorist of the second half of the 20th Century. So is the MB's leading sharia jurist in modern times, Sheikh Yusuf Qaradawi (despite efforts by his delusional Western fans to portray him as a modernizing reformer). The difference between MB Salafists and more extreme Salafists (like the difference between the MB and al-Qaeda) is much more about methodology than ideology). It is akin to the difference between Saul Alinksy organizers and the New Left radicals of the ’60s and ’70s. The MB has always believed in working with (and penetrating) government, and boring into society's institutions, in order to Islamize society gradually. More extreme Salafists reject secular society and refuse to interact with its government -- on the theory that such interaction corrupts them while legitimizing the secular government. But the goal of both sides is precisely the same: to install sharia law as the foundation for Islamizing the society.

The fact that Islamists even more extreme than the MB are not only participating but winning substantial seats in the election is a disaster on at least three counts. First, it demonstrates yet again the weakness of the secular democrats who have been portrayed, fraudulently, as the dynamic force of the "Arab Spring." Second, it will push the dominant MB into an even more aggressively Islamist posture. Third, it will have the perverse effect of helping the Obama administration and Western Islamophiles continue to portray the MB as comparatively moderate. Of course, the Brothers are only ostensibly moderate in comparison to Nour (with whom they'll be delighted to collaborate) -- objectively speaking, they are virulently anti-American, anti-Western, and anti-Israeli (indeed, anti-Semitic).

The Islamist ascendancy in Egypt, enabled by the West's democracy fetishists and its Leftist allies of the MB, will have immediate disastrous consequences -- in the imminent drafting of the new Egyptian constitution; in the eventual Egyptian presidential election next year; in overcoming the Egyptian military's half-hearted attempts to stem the Islamist tide; in the deteriorating security of 8 million Coptic Christians (about 10 percent of the population); in a radically new and more threatening Islamist threat to Israel on a long border it has not had to worry about for the last 30 years; and in ensuring (in cahoots with Islamist Turkey's Prime Minister Recep Erdogan, a longtime MB intimate) that the Brotherhood will take over Syria when Assad falls -- probably sooner rather than later.

Who could have predicted such a grand jihad?