Tag Archives: terrorists

Virginia detainee law is dangerously unconstitutional

(Published in The Washington Post, April 27, 2012)

The United States has just lost a key ally in the fight against al-Qaeda terrorists: the residents of Virginia, and state employees in particular.

Virginia’s legislature recently passed a bill that forbids state employees, including police and members of the National Guard, from participating in the investigation, surveillance, detention or arrest of any suspected member of al-Qaeda or its affiliates, if that suspect is a U.S. citizen.

The bill, which Gov. Robert F. McDonnell (R) signed Wednesday, is unconstitutional. It trenches on the federal government’s war powers and violates conditions under which Virginia and other states have received billions of dollars of federal funding. It has dangerous symbolic and practical consequences and undermines the cooperation necessary to disrupt and defeat al-Qaeda plots on our shores.

The basis of this legislation in Virginia and 11 other states (Arizona, Kansas, Maine, Maryland, Missouri, Oklahoma, Rhode Island, Tennessee, Utah, Washington and West Virginia) is a gross misunderstanding or intentional misreading of the detainee provisions in the 2011 National Defense Authorization Act (NDAA).

Some members of the tea party and the Tenth Amendment Center, a conservative group devoted to states’ rights, have joined with the American Civil Liberties Union to monger fear over federal detention authority. Under their contorted reading of the act, federal law requires all U.S. citizens suspected of terrorism to be held in military custody and strips them of all constitutional rights.

But although the NDAA describes military custody as the primary policy option for dealing with captured enemy combatants, the president retains, as is constitutionally proper, discretion to utilize the civilian justice and penal systems. In fact, the NDAA did not change settled law at all. It says that “nothing in this section shall be construed to affect existing law” related to the detention of U.S. citizens captured or arrested in the United States. Furthermore, under the Supreme Court’s post-Sept. 11 rulings, especially Hamdi v. Rumsfeld andBoumediene v. Bush , enemy combatants (regardless of citizenship) may be held for the duration of the hostilities, but anyone in military custody, whether in the United States or Guantanamo, is able to exercise habeas corpus rights to challenge the detention.

Despite these facts, some continue to fight what they see as a federal leviathan that acts extra-constitutionally all the time. But the federal government has the primary role in national security. Although comprehensive detention legislation has proved elusive, the language in the NDAA reflects the considered and constitutionally binding judgment of Congress and the president on an issue over which the federal government properly holds sway.

Since Sept. 11, 2001, al-Qaeda and its affiliates have recruited terrorists in the United States. Under the law of armed conflict — which predates the 2001 attacks — enemy combatants, regardless of citizenship, may be detained for the duration of the hostilities.

Virginia’s new law sends mixed messages to state employees, especially law enforcement officials. Imagine a state trooper pulling over a speeder and finding out through an ID check that the FBI has an alert for the driver as a suspected al-Qaeda operative. What should the trooper do if he knows or suspects the driver is a U.S. citizen? Do his duty and detain the suspect, which violates Virginia law? Or simply write the speeding ticket and send the driver on his way, not telling the FBI or the military, consequences be damned?

Although the federal government has no inherent constitutional right to compel state officials to help in combating al-Qaeda, since 9/11 it has funneled billions of dollars to all states that require fulsome cooperation from state law enforcement authorities. Meanwhile, state National Guard forces, when deployed overseas, are subject to federal control. For these reasons, Virginia’s legislation violates the federal law.

Beyond these practical concerns, Virginia’s legislation, especially if followed by more states, sends a powerful message that delegitimizes not just the military detention of captured enemy combatants but also the entire laws-of-war architecture. Legitimacy of government policies matters a great deal in our democracy. Unfortunately, it already was heavily battered, primarily by the left, during the George W. Bush administration.

The tea party members who are pushing for these state actions may not know that the Obama administration has, after some initial equivocation, endorsed the laws-of-war paradigm and has retained most of the Bush administration’s policies. This extremely positive development provides much-needed bipartisanship in this key area of national policy.

The Virginia legislation, and similar legislation in other states, violate the U.S. Constitution. It has nothing to do with states’ rights. It is a dangerous mistake, perpetrated by groups and people who misunderstand detainee law, including the NDAA, or who, since Sept. 11, have viscerally opposed the laws-of-war paradigm. Whatever their motivations, they are wrong, and their efforts should be strongly opposed.

Virginia’s new law sends mixed messages to state employees, especially law enforcement officials. Imagine a state trooper pulling over a speeder and finding out through an ID check that the FBI has an alert for the driver as a suspected al-Qaeda operative. What should the trooper do if he knows or suspects the driver is a U.S. citizen? Do his duty and detain the suspect, which violates Virginia law? Or simply write the speeding ticket and send the driver on his way, not telling the FBI or the military, consequences be damned?

Although the federal government has no inherent constitutional right to compel state officials to help in combating al-Qaeda, since 9/11 it has funneled billions of dollars to all states that require fulsome cooperation from state law enforcement authorities. Meanwhile, state National Guard forces, when deployed overseas, are subject to federal control. For these reasons, Virginia’s legislation violates the federal law.

Beyond these practical concerns, Virginia’s legislation, especially if followed by more states, sends a powerful message that delegitimizes not just the military detention of captured enemy combatants but also the entire laws-of-war architecture. Legitimacy of government policies matters a great deal in our democracy. Unfortunately, it already was heavily battered, primarily by the left, during the George W. Bush administration.

The tea party members who are pushing for these state actions may not know that the Obama administration has, after some initial equivocation, endorsed the laws-of-war paradigm and has retained most of the Bush administration’s policies. This extremely positive development provides much-needed bipartisanship in this key area of national policy.

The Virginia legislation, and similar legislation in other states, violate the U.S. Constitution. It has nothing to do with states’ rights. It is a dangerous mistake, perpetrated by groups and people who misunderstand detainee law, including the NDAA, or who, since Sept. 11, have viscerally opposed the laws-of-war paradigm. Whatever their motivations, they are wrong, and their efforts should be strongly opposed.

David B. Rivkin Jr. is co-chairman of the Center for Law and Counterterrorism at the Foundation for Defense of Democracies and a partner at Baker Hostetler. He served in the Justice Department during the Reagan and George H.W. Bush administrations and has represented the 26 states that have challenged the constitutionality of the 2010 Affordable Care Act. Charles D. Stimson, senior legal fellow at the Heritage Foundation, was a deputy assistant secretary for detainee affairs at the Defense Department during the George W. Bush administration.

Source: http://www.washingtonpost.com/opinions/virginia-detainee-law-is-dangerously-unconstitutional/2012/04/26/gIQANb8zjT_story.html

Trying terrorists in New York means we’re not at war

by David Rivkin and Lee Casey

From WashingtonExaminer.com

Published November 27, 2009

Attorney General Eric Holder’s decision to prosecute five al Qaeda terrorists, most notably Khalid Sheikh Mohammed, in federal civilian court is a mistake on many levels. The prospect is bad enough that, because these men — captured enemy combatants — were not given the rights of civilian criminal suspects, one or more may be acquitted.

By undermining the legal architecture supporting the use of military force against al Qaeda and its allies, this decision carries further profound implications for the United States’ ability to defend itself in the future.

Even as it jettisoned the term “war against terror,” the Obama administration has confirmed that the United States is engaged in an “armed conflict” — an international law term for “war” — with al Qaeda, the Taliban and their allies. President Obama has not withdrawn the United states armed forces from Afghanistan and even plans to increase them.

Characterizing the struggle against al Qaeda as an armed conflict is critical because it is the law of armed conflict that permits the United States to use military force in Afghanistan and elsewhere. If the law of war does not apply here, if al Qaeda and Taliban operatives are not enemy combatants but civilian criminal suspects, then armed attacks by American soldiers against them are illegal.

Such attacks would be war crimes leading to potential criminal liability not only for the individual U.S. servicemen involved, but all the way up the chain of command to the president himself.

These are not merely technical distinctions. Rules governing law enforcement and the use of deadly force differ profoundly from parallel rules during armed conflict. For example, police (or soldiers acting as police) cannot simply attack criminal suspects with deadly force. They must first attempt to effect an arrest and, depending on the circumstances, may even need an arrest warrant.

Moreover, civilian police must permit a suspect to escape if his capture would create any significant risk of injuries to the surrounding population. Under the law of war, while soldiers must also consider such risks, they may go forward so long as likely injuries to civilians (or civilian objects) are not disproportionate to the soldiers’ military objectives.

Above all, if the “law of war” architecture is undermined here, U.S. forces and civilian officials will be exposed to criminal liability for their use of force. Unfortunately, this is exactly what trying terrorists in federal District Court does.

It suggests that even the United States does not believe that it is engaged in a legally cognizable armed conflict, but rather in a widespread law enforcement initiative. This has, in fact, been our European allies’ view since 9/11 itself.

Of course, the Bush administration also tried certain al Qaeda operatives in the civilian courts — including Zacarias Moussaoui (often identified as the “20th” 9/11 hijacker), Jose Padilla (the “dirty bomber”) and John Walker Lindh (the “American Taliban”). However, the decision to try Lindh in federal court was made very early in the conflict, and the other two “defendants” originally were detained in the United States by law enforcement personnel.

That is not the case here. Mohammed and his compatriots were captured overseas and directly involved in active hostilities. These terrorists planned the 9/11 attacks. They are properly subject to military law in military courts.

Whether Mr. Holder’s decision was designed to bolster the president’s base, at a time when Obama is poised to increase U.S. troops levels in Afghanistan, or was a less politically cynical but still misguided effort to enhance our standing with the war-skeptical Europeans, it is a very bad deal for the country.

David Rivkin and Lee A. Casey are partners in the Washington office of Baker & Hostetler LLP and served in the Justice Department during the presidencies of Ronald Reagan and George H.W. Bush.


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