A Lesson for the Wall Street Journal on the NDAA

Section 1021 of the 2012 National Defense Authorization Act (NDAA) purports to authorize the President to designate all persons — including U.S. Citizens found within the U.S — as enemy combatants, subject to the Law of War, including; Indefinite detention without trial or charge, transfer to foreign jurisdictions or entities (commonly known as extraordinary rendition), and military tribunals. Essentially, the NDAA seeks to designate the United States as an active war zone in regards to allegations of terrorism, or support of terrorism, wherein our most cherished and basic Constitutional Rights are subject to the President’s discretion.

The fundamental issues raised by the NDAA deserve better from the Wall Street Journal’s editorial board than that which appeared on April 30, 2012, entitled; “The Tea Party’s Inner ACLU.”  The editorial conducts a cursory and incomplete statutory and Constitutional analysis, and improperly blurs the lines between the rights of persons captured outside the U.S. and citizens within the U.S., to incorrectly conclude that: 1) the NDAA only applies to “terrorists,” 2) the president has the Constitutional authority to designate U.S. citizens within the U.S. as enemy combatants subject to the Law of War, 3) detainees have sufficient Habeas Corpus rights, 4) that the new Virginia law directs all state officials to not cooperate with Federal detainments of citizen terrorism suspects, and 5) that the Virginia law is unconstitutional.

Unfortunately, the Journal’s hasty analysis endorsing the Constitutionality of the NDAA’s enemy combatant status for U.S. citizens captured within the U.S., and objecting to state refusal to cooperate with Federal detainments pursuant to the NDAA, leaves readers with a misunderstanding the U.S. Constitution, the NDAA, and the current nation-wide NDAA nullification movement spearheaded by our organizations; the Tenth Amendment Center and the Rhode Island Liberty Coalition.

The Journal first lauds the bipartisan NDAA as an “achievement” by this Congress that affirmed the:

“long-standing distinction between civilian justice and the rules of war by letting the President detain terrorists (including U.S. citizens) captured anywhere and question them as long as necessary.”

While the Journal is correct that the NDAA purportedly applies to U.S. citizens within the U.S., the contention that it only subjects “terrorists” to the Law of War is glaringly inaccurate. Section 1021 of the NDAA authorizes enemy combatant status not just for “terrorists,” but also for the broad and undefined; those who “substantially support Al-Qaeda, the Taliban or Associated Forces that are engaged in hostilities against the United States or its coalition partners.” Those covered by section 1021 are unclear and subject to abuse because it is not limited to individuals directly responsible for terrorism or belligerent acts; it applies to vague ‘substantial support’ for undefined ‘associated forces.’ The NDAA leaves these key terms undefined; and up to the President’s discretion.

Perhaps most troubling is that the section 1021 does not have a “knowing and willful” requirement for this “substantial support” standard. Conceivably, the Florida flight school trainer of the 9/11 hijackers, a fertilizer dealer whose fertilizer is used in a terrorist’s bomb, and someone who donates money to a charity which funnels that money to a terrorist organization, could now all be designated enemy combatants subject to the Law of War under the NDAA. Clearly, these individuals are not “Terrorists,” yet they are still subject to the NDAA.

The Journal’s conclusory and limited analysis simply does not reveal the NDAA’s true broad and chilling scope. If the Journal is unable to even ascertain those actually covered by the NDAA, all further analysis is greatly suspect.

The Journal’s incomplete and misleading analysis continues with its contention that settled law renders it Constitutional for U.S. citizens within the U.S. to be designated as enemy combatants subject to the Law of War pursuant to the 2001 AUMF. This fundamental question is, in fact, unresolved, and Supreme Court case law actually indicates that the President does not possess such powers. In addition to the above quote, the Journal states:

“In 1942, a military court ordered the execution of six Nazis, including an American citizen, who were captured after having come ashore from submarines off the U.S. East Coast. Yet some tea partiers want to let today’s version of infiltrating Nazis get the same rights as burglars.”

The Journal refers to the Ex Parte Quirin case where the Supreme Court allowed the Roosevelt administration to try German saboteurs by military tribunal. The saboteurs in Quirin were invaders who had been dropped off by German submarines. They were hardly the typical U.S. citizen residing in the U.S. that the NDAA now seeks to be covered by the President’s War Powers. Another key distinction today is that we have not had a Congressional declaration of War that was in effect during WWII. Today, Congress has only provided the President authority pursuant to the 2001 AUMF War Powers Resolution to respond to the 9/11 attacks in order to prevent any future acts of international terrorism.

Our founders certainly would never have permitted Presidential war powers over the U.S. homeland without a declaration of war, if at all. Indeed, the Civil War case of Ex Parte Mulligan affirmed that it is antithetical to our Constitutional Republic for the President to possess war powers over the U.S. homeland, and citizens therein, where there has not been a congressional declaration of war, the United States is not an active battlefield, there has not been a suspension of Habeas Corpus by Congress, and where the civilian courts are open for business. The Journal’s protestation otherwise evidences a misunderstanding of U.S. law on this critical subject.

More recent Supreme Court case law strongly indicates that the President does not have domestic war powers over citizens pursuant to the 2001 AUMF. Justice O’Conner’s plurality decision in the Hamdi case cited by the Journal is very clear that it is specifically limited to U.S citizens captured abroad on a foreign battlefield. Justice’s Scalia’s Hamdi dissent, joined by Justice Stevens, was poignant and will likely form the basis of a subsequent plurality decision concerning the President’s war powers over citizens in the U.S.: citizens within the jurisdiction of the U.S. must be prosecuted under normal criminal law – specifically for treason in Hamdi’s case — unless Congress suspends the right to habeas corpus. Indeed, the only crime specifically limited by the Constitution, both substantively and procedurally, is Treason. The founders were well aware of executive war power abuses and specifically enshrined protections for the accused; Constitutional protections the NDAA now subverts.

The Journal is correct that the Fourth Circuit Court of Appeals permitted Jose Padilla – a U.S. citizen detained within the U.S.– to be designated an enemy combatant subject to indefinite detention under the law of war. Analogizing to Hamdi and Ex Parte Quirin, the Padilla court made clear that its decision rested on the fact that Padilla was trained on a foreign battlefield and was captured upon entry into the U.S. Again, Padilla was hardly the U.S. citizens residing in the U.S. that the NDAA now seeks to encompass.

Moreover, the Padilla case certainly appears at odds with the Supreme Court justices’ reasoning in Hamdi. The Hamdi decision strongly indicates that the 2001 AUMF does not imbue  the President with domestic war powers over U.S. citizens captured within the U.S.. Of particular note is that the Bush Administration transferred Padilla from military to civilian jurisdiction on the eve of Supreme Court judicial review. It certainly appears the Bush Administration knew it did not have the votes at the Supreme Court and sought to avoid its review. Regrettably, the Supreme Court entertained the Bush Administration’s jurisdictional hop-scotch and ruled that Padillas’ appeal –concerning whether a U.S. citizen captured within the U.S. may be designated an enemy combatant subject to the Law of War under the 2001 AUMF – was then moot. Three Supreme Court justices issued a sharp dissent from the decision not to hear Padilla’s appeal on the grounds that military detention of Padilla was a harm capable of repetition and should be decided; a very rare type of dissent indeed.

The Journal’s declaration that settled law permits enemy combatant status for U.S. citizens captured within the U.S. is simply not true, and the Journal’s entire argument falls apart upon a proper legal analysis. Unfortunately, the remainder of the Journal editorial is also rife with inaccuracies and mistruths.

Moving on, the Journal grossly misinforms its readers that U.S. citizens captured within the U.S. would have adequate Habeas Corpus rights if designated as enemy combatants subject to the Law of War. On the Contrary, due process and judicial review is dreadfully inadequate compared to the Constitutional requirements in normal criminal proceedings; denying our fundamental 5^th and 6^th amendment rights. The Journal states:

“A President can decide to try them in either military or civilian courts, and the right of habeas corpus to challenge detention in court, established by the Supreme Court’s 2004 Hamdi decision, is unchanged.”

In Hamdi, Court did rule that Hamdi – a U.S. citizen captured on a foreign battlefield – possessed the right to a meaningful opportunity to challenge his enemy combatant status before a neutral military decision-maker. The Supreme Court affirmed the Hamdi principles in Boumediene and granted alleged enemy combatants the right of civilian Habeas review of the neutral decision-marker. However, the Hamdi and Boumediene procedure and standard of proof for Habeas petitions is shockingly lacking and inadequate compared normal criminal proceedings. You don’t have your 6th Amendment Jury right. Hearsay is freely admissible, i.e. you don’t have the 6th Amendment right to confront right to face your accusers. The burden of proof is not beyond a reasonable doubt, not clear and convincing evidence, but a mere preponderance of the evidence. That is more likely than not based on hearsay that you “substantially supported” a terrorist organization. Again, there is no “knowing and willful” requirement to one’s “substantial support” in order to be designated an enemy combatant under the NDAA. These limited Habeas rights for U.S. citizens captured within the U.S certainly deny fundamental 5th amendment due process requirements and render any Habeas petition pursuant to this standard a farce. How could the Journal be so naïve?

Moreover, what the Journal, and many commentators, fail to discuss is that the NDAA also authorizes the transfer to foreign jurisdictions or foreign entities of alleged enemy combatants — we call that extraordinary rendition — in order to avoid the inadequate Habeas rights recognized in Hamdi and Boumediene. An accused’s limited due process and Habeas rights are only applicable when the prisoner is within the Jurisdiction of the Courts. Thus, under the NDAA, the President can transfer a U.S. citizen outside of the United States to some foreign country, entity, or military base, where our courts have absolutely no jurisdiction. The detained would have no ability to compel a hearing to determine his enemy combatant status or seek Habeas relief from the Courts. Justice Scalia noted this quandary in his Hamdi dissent.

How can the Journal not see the terrible, frightening prospects, of a Federal Government whisking its citizens out of the Country in order to deny any administrative or judicial review of their designation as an enemy combatant? It is also particularly noteworthy that the Journal does not even reference any of the numerous Constitutional rights denied by this despotic treatment. Our essential rights under the Constitution are not even entitled to lip-service by the Journal’s editorial board?

Finally, the Journal grossly distorts the current nation-wide state and local NDAA nullification movement, particularly that of the first state to enact a measure to protect its citizens, the great state of Virginia:

“The paranoia is showing up in state legislatures, and this month Virginia became the first to forbid state employees from “assisting” the feds “in the conduct of the investigation, prosecution, or detention of any citizen” under the provisions of the NDAA. Rather than veto, however, Mr. McDonnell merely proposed a word change. State employees won’t be allowed to “knowingly” help the U.S. government detain terror suspects. . . . The Virginia law violates the U.S. Constitution’s Supremacy Clause by directly interfering with federal war powers.”

Regrettably, the Journal’s analysis of the Virginia law is both factually and legally inaccurate. First and foremost, the Virginia law does not prevent state officials from knowingly assisting all Federal detainments under the NDAA as asserted by the Journal. Rather, the Virginia law prevents state and local officials from aiding Federal Agents in the detention of a citizen if such aid would knowingly place such official in violation of the U.S. Constitution, or the Virginia Constitution, law or regulation. Contrary to the Journal’s assertion, Virginia officials are still able to assist the Feds detain citizens, just not where that official knows such detainment would violate a citizen’s rights. While all states surely want to fully cooperate with Federal detainments of terrorism suspects, they must not do so if their assistance will deny our most fundamental rights.

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The Journal’s last contention that the Virginia law is unconstitutional is simply false and demonstrates a rank misunderstanding of our Federal system of Government. The simple and short answer, one that has been reaffirmed by numerous Supreme Court decisions, is that the Federal government has no authority to force state and local officials to affirmatively act. In this case, the Federal government cannot require state and local assistance to detain U.S. citizens, or anyone for that matter, no matter how disruptive that is to alleged federal “war powers.”

Regrettably, the Journal evidences a profound misunderstanding of the NDAA and the Constitution, and endorses giving up our most fundamental liberties for perceived security. Does the Journal, and Federal Government for that matter, so easily forget our Founder’s admonition that if we give up liberty for security we deserve, and will have, neither? Unfortunately, many Federal leaders and mainstream journalists endorse such folly. The ultimate truth is that if we allow our liberties to be taken, the terrorists have won. Accordingly, States are duty-bound to stand up and NULLIFY unconstitutional acts of a Federal Government that has lost its way, and Virginia has righteously done so.