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The telegenic Andrew Napolitano – billed as Fox News’ "Senior Judicial Analyst," and respectfully addressed as "judge" by his colleagues at the network because he once sat as a trial judge in New Jersey, – recently wrote an Op Ed piece for The Los Angeles Times about our War on Terrorism’s latest "enemy combatant," one Ali Saleh Kahlah Al-Marri ("Ali").

If the "Senior Judicial Analyst’s" commentary was merely erroneous, as is much of his pontification on television, that would be bad enough. But this time, he was dead wrong about a crucially important issue central to our War on Terrorism. And worse, he was dead wrong in print, which has a longer shelf life than words spoken on television.

In essence, Mr. Napolitano uses Ali’s recent designation as an "enemy combatant," and the similar designations of Yaser Esam Hamdi and Jose Padilla – each of the latter, unlike Ali, American citizens – to complain that the government is making an end run around the Constitution.

The ex-trial court judge rails that Ali was "whisked" from a federal lock-up "under cover of darkness" to a Navy brig; that he "could languish there for the rest of his life"; that the president, using standards known only to him, and never approved by any court, claims "the right to incarcerate enemy combatants until the war on terrorism is over."

How is all this possible, according to Fox’s Senior Judicial Analyst? "In all three of these cases, the government relies for support on a misunderstood U.S. Supreme Court decision in the World War II Quirin case. The court allowed President Roosevelt to arrest, charge and try before a military tribunal eight German soldiers who made to our shores. The eight were, the court declared, enemy combatants because they were uniformed soldiers of a foreign government on which the U.S. had declared war. Nowhere in the Quirin opinion did the court say the president had blanket authority to declare anyone an enemy combatant at the request of the attorney general. Nowhere did the court say the president could indefinitely lock up anyone who didn’t cooperate with the Justice Department." (Emphasis added).

I don’t know who else misunderstands the Court’s holding in Ex parte Quirin, but Mr. Napolitano certainly does. His fundamental misunderstanding is believing that Quirin has much to do with Ali’s case.

In Quirin, eight German would-be saboteurs – all of whom but one were not American citizens – were launched from occupied France in two submarines. Four landed on Long Island, the other four in Florida. When they were captured, all wore civilian clothes. Although the judge makes it appear that the eight saboteurs were mere "soldiers" who somehow wandered away from their units on the Continent, somehow found their way onto German subs, and somehow washed up on our shores, the indisputable facts, as stated by the Supreme Court of the United States in its Quirin decision are that the eight were trained enemy agents sent here to destroy war industries.

Tried before a Military Tribunal created by a presidential Executive Order, eventually the case of the eight saboteurs reached the Supreme Court of the United States. There, the Court made the distinction between "lawful combatants" and "unlawful combatants." (Sometimes in the Court’s opinion the word "belligerent" is used in place of "combatant.")

          "Lawful combatants are subject to capture and detention as prisoners of war . . . . Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful. (Emphasis added).  What, then, is the difference between "lawful" and "unlawful" combatants?  The spy who secretly and without uniform passes the military  lines of a belligerent in time of war, seeking to gather militar information and communicate it to the enemy, or an enemy combatant who without uniform comes secretly through the linesfor the purpose of waging war by destruction of life or property, are familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoners of war." [Emphasis added].

The Court added:

          "Our government, by thus defining lawful belligerents entitledto be treated as prisoners of war, has recognized that there is a class of unlawful belligerents not entitled to that privilege, including [emphasis added] those who though combatants do not wear "fixed and distinctive emblems" [uniforms].

This distinction drawn by the Quirin Court – applicable to both citizens (e.g. Herbert Hans Haupt) and non-citizens (e.g., the other seven saboteurs) is obvious: An enemy fighter captured on the field of battle in uniform is a lawful combatant/prisoner of war; an enemy fighter captured not on the field of battle not in uniform is an unlawful combatant. This analysis and decision makes Ali an "unlawful combatant." Extrapolating from Quirin, this means that Ali can be tried before a Military Tribunal and even put to death if found guilty of any of the crimes cognizable by that court.

Thus, when Mr. Napolitano writes that "[n]owhere in the Quirin opinion did the court say the president had blanket authority to declare anyone an enemy combatant at the request of the attorney general. Nowhere did the court say the president could indefinitely lock up anyone who didn’t cooperate with the Justice Department," he is mistaken. The Quirin Court made it very clear that an unlawful combatant, cooperating or not cooperating with the Justice Department, can be both "detained" and put to death.

Instead of contributing to the supposed misunderstanding of Ex parte Quirin, Mr. Napolitano would have done much better to discuss a case much closer to the issues in Ali: Yaser Esam Hamdi.

Yaser Esam Hamdi is an American citizen by birth. He served in Afghanistan with the Taliban/al-Qaeda, was captured by the Northern Alliance, and turned over to United States forces. From Afghanistan, Hamdi was taken to Guantanamo Bay, and then transferred to the Norfolk Naval Station Brig in April 2002, where he has remained ever since.

Given that Hamdi is an American citizen, and thus that his Petition for a Writ of Habeas Corpus raised serious constitutional questions, the trial judge referred the following question to the United States Court of Appeals for the Fourth Circuit: "Whether a declaration by a Special Advisor to the Under Secretary of Defense for Policy setting forth what the government contends were the circumstances of Hamdi’s capture was sufficient by itself to justify his detention."

The Court of Appeals unanimously (3-0) held:

Because it is undisputed that Hamdi was captured in a zone of active combat in a foreign theater of conflict, we hold that the submitted declaration [by a Special Advisor to the Under Secretary of Defense for Policy] is a sufficient basis on which to conclude that the Commander in Chief has constitutionally detained Hamdi pursuant to the war powers entrusted to him by the United States Constitution. No further factual inquiry is necessary or proper, and we remand the case [to the trial court] with directions to dismiss the petition [for the writ of habeas corpus]." (Emphasis added).

More important, still, is why the Court of Appeals reached that conclusion in the Hamdi case. In its answer to this question – if the rationale of the Fourth Circuit is adopted by other federal circuit courts, and eventually the Supreme Court – we can see both the role of the judiciary in the war against terrorism, and the predictable fate of other American citizens who take up arms against the United States.

As the court acknowledged, "Yaser Esam Hamdi is apparently an American citizen. He was also captured by allied forces in Afghanistan, a zone of active military operations. This dual status – that of American citizen and that of alleged enemy combatant – raises important questions about the role of the courts in times of war."

Here’s how the Court of Appeals answered those questions.

First, the court recognized the venerable constitutional principle that there ought to be, always has been, and is now, deference, not abdication, by the judicial branch to the political branches – the President and Congress – in wartime, especially regarding matters of foreign policy, national security, and military affairs. Scores of Supreme Court cases have supported this principle. The deference is rooted in the express grants of constitutional power to Congress in Article I and to the President in Article II, and thus in the fundamental constitutional principle of separation of powers. Contrary to what most liberals and Leftists think, not every governmental decision in our Republic is, or ought to be, subjected to judicial review – especially those concerned with foreign policy, national security, and military matters. (The court also noted that even though our presence in Afghanistan might not fit the conventional description of "war," nonetheless "the nature of the present conflict [does not] render respect for the judgments of the political branches any less appropriate. We have noted that the political branches are best positioned to comprehend this global war in its full context . . . and neither the absence of set-piece battles nor the intervals of calm between terrorist assaults suffice to nullify the warmaking authority entrusted to the executive branches.")

Recognizing a limited judicial role in Hamdi’s attempt, as an American citizen, to employ the Great Writ of habeas corpus to test the legality of his detention, the court addressed Hamdi’s two arguments:

Title 18 U.S.C. § 4001 regulates the detention of United States citizens:

(a) No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.

(b)(1) The control and management of Federal penal and correctional institutions, except military or naval institutions, shall be vested in the Attorney General, who shall promulgate rules for the government thereof, and appoint all necessary officers and employees in accordance with the civil-service laws, the Classification Act, as amended[,] and the applicable regulations.

(2) The Attorney General may establish and conduct industries, proper government, discipline, treatment, care, rehabilitation, and reformation.

On the basis of this statute, Hamdi and his Leftist sympathizers argued that no Act of Congress specifically authorizes his detention in the Navy brig. Finding "this contention unpersuasive," the Court of Appeals provided three reasons:

(1) In the wake of September 11th , Congress did authorize the President to "use all necessary and appropriate force against those nations, organizations, or persons he determined planned, authorized, committed, or aided the terrorist attacks" or "harbored such organizations or persons:"; (2) Congress did authorize funds for "the maintenance, pay, and allowances of prisoners of war [and] other persons in the custody of the [military] whose status is determined . . . to be similar to prisoners of war"; and (3) "There is no indication that Section 4001 was intended to overrule the longstanding rule that an armed and hostile American citizen captured on the battlefield during wartime may be treated like the enemy combatant that he is."

The second legal argument proffered by Hamdi’s legion of Leftists was that Article 5 of the Geneva Convention requires a threshold determination of his status as an enemy combatant by "a competent tribunal." The Court of Appeals gave short shrift to this specious contention by simply pointing out, correctly, that the Geneva Convention generally, and Article 5 in particular, provided no private right of action but rather left disputes under it to be resolved by political and diplomatic means.

Thus, Hamdi had no case that his detention was unlawful – if he was an "enemy combatant."

The remaining question was whether Hamdi could challenge this designation. In a normal criminal proceeding seeking a writ of habeas corpus, the petitioner can challenge the factual basis of his detention. In the Hamdi case, this would be his opportunity to rebut the factual assertions supporting the government’s "enemy combatant" designation. However, the Court of Appeals ruled "that no evidentiary hearing or factual inquiry . . . is necessary or proper, because it is undisputed that Hamdi was captured in a zone of active combat operations in a foreign country and because any inquiry must be circumscribed to avoid encroachment into the military affairs entrusted to the executive branch."

In sum, the President and Congress possess "war" powers, included in which is the power to designate certain persons as "enemy combatants." In Hamdi’s case – because he was captured in Afghanistan as a member of the Taliban/alQaeda – he was so designated, and incarcerated. As an American citizen, Hamdi had a right to petition for a writ of habeas corpus challenging his detention. Under the Constitution, the courts had a duty to consider that petition. But because Hamdi’s incarceration was pursuant to war powers, under our separation of powers doctrine the courts possessed only a limited review role. That role consisted of ascertaining that the government had made a prima facie showing of facts sufficient to support its "enemy combatant" designation. Or, in the Court of Appeals own words:

One who takes up arms against the United States in a foreign theater of war, regardless of his citizenship, may properly be designated an enemy combatant and treated as such. The privilege of citizenship entitles Hamdi to a limited judicial inquiry into his detention, but only to determine its legality under the war powers of the political branches. At least where it is undisputed that he was present in a zone of active combat operations, we are satisfied that the Constitution does not entitle him to a searching review of the factual determinations underlying his seizure there.

Accordingly, said the court,

We hold that, despite his status as an American citizen currently detained on American soil, Hamdi is not entitled to challenge the facts presented in the [Special Advisor’s declaration]. Where, as here, a habeas petitioner has been designated an enemy combatant and it is undisputed that he was captured in a zone of active combat operations abroad, further judicial inquiry is unwarranted when the government has responded to the petition by setting forth factual assertions which would establish a legally valid basis for the petitioner’s detention.

Although Leftists and other anti-Americanistas – from peaceniks to the usual array of Carter-like useful idiots – would deny the United States every opportunity to defend herself and are now complaining bitterly about the Hamdi decision, they are on no firmer ground than were Hamdi and his legal minions. The Court of Appeals merely applied settled law (note the unanimous decision). Under the fundamental constitutional doctrine of separation of powers, the judiciary must defer to the political branches in matters of foreign policy, national security and military affairs. Nothing new about that.

Nor is there anything new about an American citizen having the right to petition for a writ of habeas corpus. If the writ is sought in a "deference" situation, the court’s factual inquiry does not – should not – nitpick details. If there is anything new in the Hamdi case, it is the application of these longstanding principles in its factual context: The government’s unquestioned proof that Hamdi was captured in Afghanistan under arms against the United States was a sufficient showing to invoke deference, to justify characterizing Hamdi as an enemy combatant, and to allow him to be held indefinitely without further recourse to civilian courts.

This decision by the United States Court of Appeals for the Fourth Circuit disposes of Mr. Hamdi in particular, and – more important – all future Hamdis: American citizens who are captured on foreign battlefields while fighting against their country. These people will, properly, be designated enemy combatants.

 If Hamdi – and American citizen – could be treated that way, a fortiorari that Ali can.