Tuesday, June 12, 2007
Judicial Legerdemain
The majority in a recent split panel of the 4th Circuit Court of Appeals in the case of Al-Marri v. Wright reached the wrong conclusion regarding the ability of the President to conduct war against the enemies of the United States and did it in a underhanded way. Andrew McCarthy has similar complaints about the decision over at NRO. He's a great writer. I'm just another right wing blogger. Still, let me elaborate.
You have to start with the Authorization for Use of Military Force ("AUFM") from September 18, 2001, which reads in pertinent part:...the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.
(Emphasis added).
As the dissent pointed out on page 80 of the less than concise opinion, the majority treats the AUMF as if it only applied to the Taliban and Afghanistan. It obviously contained no such limitations. Indeed, the organization responsible for the September 11, 2001 attacks we now know was al Qaeda. Here's the money quote for how the majority gave a foreign national, a sleeper agent for al Qaeda, constitutional rights as if he were a citizen and declared him a civilian and not an illegal combatant (or spy or saboteur) and finessed the clear grant of the already held constitutional power of the President as commander-in-chief contained in the AUMF: For unlike Hamdi and Padilla [both U.S. citizens], al-Marri is not alleged to have been part of a Taliban unit, not alleged to have stood along side the Taliban, or the armed forces of any other nation, not alleged to have been on the battlefield during the war in Afghanistan, not alleged to have been in Afghanistan during the armed conflict there, and not alleged to have engaged in combat with United States forces anywhere in the world.
Who cares if he wasn't a Taliban fighter? He's an al Qaeda sleeper agent sent here to do us harm. The Taliban didn't commit the 9/11 terrorist acts, al Qaeda did (although the Taliban harbored al Qaeda and is thus subject to the AUMF as well as al Qaeda.
In short, two members of the panel have not been keeping up with current events. War is not being waged against us by the armed forces of a nation state but by a powerful and pervasive organization to which the laws of warfare do not apply. The members of al Qaeda coming here to kill us are not part of a civilian, criminal organization nor are they the equivalent to the Unabomber or Timothy McVeigh, et al. (Although the panel compares al-Marri to those criminals by name on page 71). It's a new dawn, it's a new day, it's a new war and the judiciary needs to butt the heck out. This is the President's exclusive roll.
Isn't al Qaeda like the Barbary Pirates President Jefferson sent our armed forces to capture and kill? No declaration of war needed; no judicial determination of the status of the pirates needed.
You have to start with the Authorization for Use of Military Force ("AUFM") from September 18, 2001, which reads in pertinent part:...the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.
(Emphasis added).
As the dissent pointed out on page 80 of the less than concise opinion, the majority treats the AUMF as if it only applied to the Taliban and Afghanistan. It obviously contained no such limitations. Indeed, the organization responsible for the September 11, 2001 attacks we now know was al Qaeda. Here's the money quote for how the majority gave a foreign national, a sleeper agent for al Qaeda, constitutional rights as if he were a citizen and declared him a civilian and not an illegal combatant (or spy or saboteur) and finessed the clear grant of the already held constitutional power of the President as commander-in-chief contained in the AUMF: For unlike Hamdi and Padilla [both U.S. citizens], al-Marri is not alleged to have been part of a Taliban unit, not alleged to have stood along side the Taliban, or the armed forces of any other nation, not alleged to have been on the battlefield during the war in Afghanistan, not alleged to have been in Afghanistan during the armed conflict there, and not alleged to have engaged in combat with United States forces anywhere in the world.
Who cares if he wasn't a Taliban fighter? He's an al Qaeda sleeper agent sent here to do us harm. The Taliban didn't commit the 9/11 terrorist acts, al Qaeda did (although the Taliban harbored al Qaeda and is thus subject to the AUMF as well as al Qaeda.
In short, two members of the panel have not been keeping up with current events. War is not being waged against us by the armed forces of a nation state but by a powerful and pervasive organization to which the laws of warfare do not apply. The members of al Qaeda coming here to kill us are not part of a civilian, criminal organization nor are they the equivalent to the Unabomber or Timothy McVeigh, et al. (Although the panel compares al-Marri to those criminals by name on page 71). It's a new dawn, it's a new day, it's a new war and the judiciary needs to butt the heck out. This is the President's exclusive roll.
Isn't al Qaeda like the Barbary Pirates President Jefferson sent our armed forces to capture and kill? No declaration of war needed; no judicial determination of the status of the pirates needed.
Labels: Judiciary Mucking up War Effort
# posted by Roger Fraley @ 8:01 PM 
