U.S. sets new rules in favor of terrorists who operate at home

The Editors at the Wall Street Journal are betting that the Fourth Circuit Court of Appeals ruling, that al Qaeda agent al-Marri cannot be detained as an enemy combatant because he wasn't nabbed on any foreign battle field will be overturned on appeal because, well, it's ridiculous.

As the Editors summarize the ruling:

Judges Diane Motz and Roger Gregory, both Bill Clinton nominees, ruled that a person like al-Marri does not qualify as an enemy combatant, because the U.S. cannot be "at war" with a private group like al Qaeda.

For the "enemy combatant" moniker to apply, the court said, a terrorist must have set foot in the soil "alongside" the forces of an enemy state -- i.e., Iraq or Afghanistan. This is odd in itself, since by definition al Qaeda is a transnational organization. In some respects this makes it more of a security threat because there is no government the U.S. can hold responsible for its actions. . .

Judges Motz and Gregory duck these precedents by ruling that al-Marri belongs in a different category, having never taken up arms on a foreign battlefield. He was merely trying to kill us here at home. Al-Marri came to the U.S. on a student visa as part of an al Qaeda "sleeper cell," looking for new opportunities to disrupt the U.S. financial system after September 11. Working for 9/11 honcho Khalid Sheikh Mohammed, he posed as a student at Bradley University while plotting. He was arrested for credit card fraud, and as his case worked through the court system, evidence of his al Qaeda affiliation built and he was transferred to a military brig in South Carolina.

As the Editors continue, this is what this ruling implies for terrorists:

If you join al Qaeda today, and get your training outside a wartime-environment, any violent acts you commit against the U.S. cannot qualify you as an enemy combatant or subject you to the system of military interrogation. You will instead be prosecuted in the U.S. criminal justice system, which would make any al Qaeda operative's day.

A case against a terrorist suspect would require a level of transparency that could compromise intelligence gathering and possibly the nation's security. Through the discovery process, the terrorist "defendant" would be privy to the sources that compromised him -- sources that would thereby be made obsolete. And don't forget the domestic criminal rules of evidence. You think a lot of cases are dismissed on "technicalities" now?

What the Al-Marri v. Wright decision really implies

James Taranto of the Wall Street Journal's Best of the Web sums up wha the Fourth U.S. Circuit court just decided in the Al-Marri v. Wright appeal:

The [court] held yesterday [Monday] that the U.S. lacks the authority to detain as an enemy combatant one Ali Saleh Kahlah al-Marri, a Qatari national and U.S. resident alien who was captured in Peoria, Ill., and found to be "engaged in conduct that constituted hostile and war-like acts, including conduct in preparation for acts of international terrorism."

The U.S. Supreme Court has previously held that U.S. citizens can be held as enemy combatants, including one--Abdullah al-Muhajir, né Jose Padilla--who had been captured in the U.S.

As to why the court decided that Al-Marri's case was different, as Judge Diana Motz wrote:

Al-Marri is not alleged to have been part of a Taliban unit, not alleged to have stood alongside the Taliban or the armed forces of any other enemy nation, not alleged to have been on the battlefield during the war in Afghanistan, not alleged to have even been in Afghanistan during the armed conflict there, and not alleged to have engaged in combat with United States forces anywhere in the world.

In other words, as Taranto points out, he was deemed to be a civilian, entitled to his constitutional protections. But as Taranto goes on to report, not all the Circuit Judges agreed. As Judge Henry Hudson dissented:

Although al-Marri was not personally engaged in armed conflict with U.S. forces, he is the type of stealth warrior used by al Qaeda to perpetrate terrorist acts against the United States. . . . There is little doubt from the evidence that al-Marri was present in the United States to aid and further the hostile and subversive activities of the organization responsible for the terrorist attacks that occurred on September 11, 2001.

Taranto draws this conclusion:

This makes clear the perversity of the court's reasoning. By its logic, alien terrorists are entitled to all the constitutional rights of civilians provided that they manage to stay out of Afghanistan and do their planning in America. The 9/11 terrorists, had they been caught, would have enjoyed more rights under this scheme than some low-level Taliban foot soldier.

What about the consequences of criminalizing warfare?

David B. Rivkin, Jr. and Lee A. Casey raise a critical question in an op-ed piece in today's Wall Street Journal.

Using the term "lawfare" to describe the "blizzard of litigation initiated in U.S. federal courts on behalf of al Qaeda and Taliban detainees" the former Department of Justice officials refer to the lawsuits that, in their words, "range from habeas corpus petitions...to tort suits seeking monies from U.S. government officials, to challenges regarding the detainees' conditions of confinement."

Along with the litigation, as Rivkin and Casey write, "[then there are the 'progressive'] NGOs [who] routinely demand that irregular enemy combatants like al Qaeda and the Taliban can be treated as POWs or criminal defendants, claim that military force can be applied only to the minimum amounts necessary to neutralize a particular opponent (rather than with a view to achieving ultimate victory), [and who aim] to ban an increasing number of weapons and weapons systems as being 'inherently indiscriminate.'" They argue that:

The effect of this lawfare effort, were it successful, would be to make it exceptionally difficult - if not impossible- for a law-abiding state to wage war in anything like the tradtional manner, bringing the full weight of the national armed forces to bear against an enemy, without prompting charges of war crimes and efforts to intimidate individual officials with prosecutions on ersatz 'war crimes' theories.

While this may be all well and good in theory, it would seem that Messrs. Rivkin and Casey raise a point point worth considering: Exactly what alternative method do those who would criminalize war suggest should be used to "[ensure] the welfare and security of the civilian populations that the armed forces of states, and of the U.S. in particular, are raised and maintained to protect"?