The War Is Over
Federal courts have just surrendered in the war against radical Islam.

By Andrew C. McCarthy

The war is over. Our peerless armed forces took Tora Bora and, when we finally let them, Fallujah. But al-Qaeda won in Washington, and that has made all the difference.

The War on Terror has radically altered the compact between the American people and their government by dramatically changing the nature of the U.S. courts. Until this new, unaccountable monster is caged, it will continue to devour our political community’s capacity to wage war and to defend itself.

And that caging had better happen soon, because the word “war” in this context refers only to our nation’s forcible military response after the 9/11 attacks finally made the atrocities of radical Islam impossible to ignore any longer. Our response did not start the war. That war, radical Islam’s jihad against the United States and the West, continues — and ever more perilously. As we hollow ourselves out by the day, we become a much softer target.

Last Friday, the U.S. Court of Appeals for the D.C. Circuit dealt a crushing blow to national defense. The three-judge panel’s ruling in al Odah v. United States has gotten scarce media attention. Perhaps that’s understandable: It’s a mind-numbing technical dispute over “discovery” in litigation, vying for attention against the socializing of our economy and the consequent collapse of the stock market. But the discovery in question is the most vital kind, namely, that of classified national-defense information. What is in dispute is how much sensitive intelligence we must share with enemies bent on annihilating Americans — enemies against whom the people’s representatives have authorized, by overwhelming margins, the use of force. That is, these “petitioners” are the militants who — along with al-Qaeda’s hierarchy and affiliates — use the intelligence we give them against the soldiers we have dispatched to fight the battles Congress has authorized, under the direction of a president whose first duty is the prosecution of the war.

Most significantly, the issuing court has declared an end to the war. No formal armistice has been announced, of course. Instead, as T. S. Eliot would have it, the judges are ending the war not with a bang, but a whimper. They are declaring it over by failing to acknowledge that it is, or ever was, on. It isn’t even background noise.

BOUMEDIENE AND THE REMAKING OF FEDERAL COURTS
Some background, though, is in order. Last June, in its cataclysmic Boumediene decision, the U.S. Supreme Court ruled — against the weight of precedent, tradition, and common sense — that non-U.S. nationals, held by the military outside sovereign American territory (i.e., beyond the writ of American judges) as prisoners captured in a war authorized by Congress, are nevertheless vested with a constitutional right to challenge their detention as enemy combatants in our courts. The decision was a calamity on many levels, but two merit our immediate attention.

First, the 5–4 majority dramatically and dangerously revolutionized the separation-of-powers doctrine that is the cornerstone of our liberty. For more than two centuries, we proceeded under the assumption that a self-determining people makes its most significant decisions through the political process, with policymakers answerable to voters and therefore removable if they fail either to protect our security or to respect our freedom. Courts were insulated from the political process, but only because it was understood that they respected their limited role (safeguarding the individual rights of Americans) and refrained from entering the political sphere — especially the formulation of national-security policy, which involves the most important decisions a political community makes, decisions for which the courts have no institutional competence.


Boumediene cast all of that aside. It did not merely vest constitutional rights in hostile aliens with no claim on them. It supplanted Congress and the commander-in-chief in prescribing the entitlements of enemy prisoners, a function hitherto understood to be military and diplomatic — not legal. And worse still, the Court refused to concede its duty to defer to the supremacy of the political branches in their realms of constitutional responsibility, or, indeed, that there are any areas in which politically insulated judges are institutionally incompetent. Rather, in the breathtaking decree of Justice Anthony Kennedy, the “Executive’s powers as Commander in Chief” are “vindicated” when they are “confirmed by the Judicial Branch” — that those powers are assigned by the Constitution to the executive rather than the judiciary apparently is irrelevant.

The courts no longer see themselves as part of the U.S. government. The U.S. government, like the American people, is at war — or at least it has been. The courts are not part of that effort. They are spectator turned critic turned detached manager. Their self-perception is that of a shadow outside and above the U.S. government, serving not a Constitution of limited powers but “the law” — an ever-evolving, all-encompassing corpus of cosmic justice. The courts are not a forum to which Americans come to vindicate their rights against government; they are an overlord available to humanity to lodge its grievances against the American people and their government.

The second Boumediene calamity was its commitment to federal judges of the task of designing procedures for the vindication of our enemies’ new constitutional rights. Prescribing procedures for court proceedings is the job of Congress, which can weigh national-security needs against due-process concerns. The job of courts — which have no national-security responsibilities and are hardwired to maximize due-process protections against the U.S. government — is to conduct proceedings in accordance with the rules Congress fashions. Allowing courts to make up their own rules regarding enemy-combatant proceedings inevitably means that the defense of the United States will be subordinated to “justice” for the detainees.

That is precisely what has happened in al Odah. At issue was: In a challenge to the military’s designation of someone as an enemy combatant, what disclosures of classified information must the government make to the combatant about its basis for concluding that he is one of the enemy? The Justice Department took a position that, accounting for the fact that we are at war, was generous: The detainee is entitled to learn enough information to support the conclusion that he is an enemy combatant. As for other information in the government’s possession, the detainee is entitled only to that which is actually exculpatory — i.e., information that shows he is not an enemy combatant. Beyond that, he does not have a need to know. We are at war, and it endangers both the public and our troops in harm’s way to give our enemies unnecessary insights about what we know and how we know it.

The government, moreover, reserved to itself the power to determine what information in its files was exculpatory. This was consonant with criminal procedure, where the stakes for our security are not remotely as high. A criminal suspect, for example, has no right to force the government to present any exculpatory evidence to a grand jury, and the government is not required to produce all the information in its file at any stage — it must merely produce enough to establish probable cause at the indictment stage, and guilt beyond a reasonable doubt at trial. Further, the prosecutor is not required to hand over his file so the judge may independently determine what is discoverable and what is not. The prosecutor is trusted, in fidelity to his oath, to disclose that which the law mandates and to withhold the rest.

ANYTHING TO HELP THE ENEMY
For the D.C. Circuit, however, these standards, though good enough for American citizens accused of crime, are somehow not good enough for alien enemy combatants trying to kill American citizens. The panel found the government’s “mere ‘certification’” that information was immaterial, and should not be disclosed, to be insufficient. Allowing such a “naked declaration,” the judges harrumphed, would turn courts into mere “rubber-stamps.” Therefore, they said, “it is the court’s responsibility to make the materiality determination itself.”

More alarming is the judges’ understanding of what constitutes materiality — and what informs, and more significantly does not inform, that understanding. The court never takes into account that the nation is under siege, that we are in a state of war against people trying to destroy our way of life, and that this war has been ordained by our citizens through the procedures laid out in our Constitution — with the executive dispatching troops and taking prisoners under the sweeping authorization and continued funding support of Congress. One might think that would make the war’s prosecution the highest priority of our political community. It is one thing, and quite a bad thing, to force the executive to defend our nation in court against our enemies. It is quite another thing, though, to suggest our enemies are entitled to a shred of information beyond the minimum necessary to demonstrate that their designation as enemy combatants is rational.


Not, alas, according to this court. The judges believe the highest national priority is not winning a war but vindicating the Boumediene injunction to conduct “meaningful” judicial review of the military’s detention decisions. Therefore, it holds, the government must surrender anything in its file that might be helpful to an individual combatant’s case.

It makes no difference that the information is not exculpatory. The judges reason that information that is not “actually inculpatory” (emphasis in original) could be helpful to the detainee. After all, they speculate, withheld information might shed light on the reliability of the government’s sources (those would be the intelligence sources we are trying to conceal from al-Qaeda because they help us only at great danger to themselves). In fact, the judges go so far as to say: “Information that is not exculpatory on its face may also be material if it contains the names of witnesses who can provide helpful information” — such as names of detainees alleged to have trained in al-Qaeda camps. That we’d have sound intelligence reasons not to reveal to our enemies what we know about their training programs, who attended them, and how we might have come about that knowledge is apparently beside the point.

While the judges fret over the biases of our informants, Americans ought to be aghast at the biases of our judges. Throughout the opinion, there is a sense that the good faith of those fighting the war and defending it in court is always in question — the judges take umbrage at any suggestion that they should simply “accept the government’s own designation.” But they do not extend that same skepticism to the defense lawyers, human-rights activists, and anti-American agitators, such as the Center for Constitutional Rights, who have volunteered their services to those captured making war on our country. These thoughtful folks, we must implicitly trust, are just trying to do their job. Whatever helps them helps the court — and what could possibly be more important than that?

Tellingly, the panel repeatedly observes that both sides agree these detention hearings are “analogous” to criminal proceedings. The judges seem to miss, however, that an analogy is a comparison between things that are similar, not a finding that things are equivalent. They treat wartime detention as if it were no different from criminal detention — as if the commander-in-chief were owed no special deference, as if the standards for holding Khalid Sheikh Mohammed shouldn’t be materially different from those determining whether the garden-variety drug dealer gets bail. Except that here, KSM is actually treated better. In sum, this court has given alien enemy combatants — who have no constitutional entitlement to the due-process protections accorded to American citizens at trial — discovery rights superior to those the Supreme Court requires in the domestic criminal context.

This gravely damages the ability of the United States to fight wars successfully. The primary reason enemy combatants may be detained under the laws of war is to prevent their return to the battlefield. The depletion of enemy assets brings the war to a more rapid, more humanitarian conclusion. American courts now stand this principle on its head. Henceforth, the price of detaining an enemy operative will be the coerced disclosure of intelligence that may be more valuable to the enemy than is the combatant himself. Factor in the enormous resource drain the litigation requires, and holding prisoners becomes a net loss for the war effort. And the war effort becomes a waste of time unless you only kill rather than capture — which is al-Qaeda’s way of doing things, but not ours.

This outcome has always been the fondest dream of the anti-war Left. That is why the Democrat-dominated Congress turned a deaf ear when, after Boumediene, the Bush administration (especially Attorney General Michael Mukasey) implored lawmakers to fashion rules and procedures for combatant-detention hearings. “We don’t have to pass anything,” Rep. Jerrold Nadler told Newsweek. “Let the courts deal with it.” Democrats knew that, if they sat on their hands, the courts would do their dirty work for them. And so it has come to pass. The war is over, at least until the next 9/11 — we can make ourselves defenseless, but radical Islam is not calling off the jihad.

Andrew C. McCarthy is a senior fellow at the National Review Institute and the author of Willful Blindness: A Memoir of the Jihad (Encounter Books, 2008).


— National Review’s Andrew C. McCarthy is the author of Willful Blindness: A Memoir of the Jihad (Encounter Books, 2008).

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