Adam Liptak at the Times has this insightful analysis
of the al-Marri decision.
Here's the most striking thing for me. Liptak does a good job of articulating the fallacy inherent in the administration's "third way" argument (that is, terrorists do not fit into a criminal or martial paradigm, and thus must occupy an intermediate category that, oh, by the way, allows us to lock them up without charges forever). Here's the relevant pullout:
â€œThe Colombian drug cartel has airplanes and bombs and boats, and it shoots down American airplanes,â€ Professor Freedman [at Hofstra law] said. â€œTheyâ€™re criminals. You canâ€™t go to war against the Colombian drug cartel. If you could, then when they shot down an American military airplane, they wouldnâ€™t be guilty of anything. Theyâ€™d have combat immunity.â€
Supporters of the administration say that analogies like that are not only naÃ¯ve but also prove the need for a third category. On one hand, they say, terrorists cannot be considered civilians because they could not then be singled out for military attack or assassination or held for intelligence gathering. On the other, they are not entitled to the protections granted to soldiers because they do not fight on behalf of nations or follow the laws of war.
Critics of the administration say that reasoning is convenient, as it gives the government essentially complete discretion to seize and hold anyone it wants without recourse to the courts.
That's exactly right. But, there's more.
Most legal experts claim this new approach is entirely novel. Indeed, that's at the heart of the John Yoo school of due process for terrorists. This is a new type of war, they say, requiring heretofore untried tactics---tactics that otherwise would offend our delicate sensibilities. Bring on the torture, indefinite detention, no due process, no civilian court review, etc.
Consider this, however. The government has made this "new war, new paradigm" argument over and over and over again, throughout American history. When the law proves inconvenient, just ignore it and pull a Richard Nixon: if the president does it, it can't be illegal.
Let me count off a few choice "new war, new paradigm" moments of glory: Japanese internment, Iran-Contra, covert operations in Latin America, the illegal arming and logistical support of the Armee (there's an accent in there somewhere) Clandestine in Laos, and, of course, all our extra-legal shenanigans during the Cold War.
This is nothing new folks and, just as before, we gotta take a deep breath and trust that our shared commitment to the rule of law, limited government and constitutional supremacy (not to mention our $40-50 billion per annum intelligence budget) will keep us both safe and free.
Let me compare and contrast two passages. The first is Professor Yoo from the Liptak article:
John Yoo, an early architect of the administrationâ€™s legal position, said the Sept. 11 attacks required a new paradigm, one the judges in the Fourth Circuit majority failed to appreciate.
The judges, Mr. Yoo said, see the terrorists as ambitious criminals. But Mr. Yoo argues that they are in fact dangerous combatants whom the government should be free to hold without the constraints of the criminal justice system.
The second is the seminal bit from the 1954 Doolittle Report on covert operations, commissioned by President Eisenhower and prepared by the famous World War II pilot (quoted from John Hart Ely's War & Responsibility).
Another important requirement is an aggressive covert psychological, political and paramilitary organization more effective, more unique, and if necessary, more ruthless than that employed by the enemy.... There are no rules in such a game. Hitherto norms of human conduct do not apply. If the U.S. is to survive, longstanding American concepts of "fair play" must be reconsidered.
Deja vu, indeed.