A living constitution or a suicide pact?

I’ve been too busy at work to comment (except for a very early morning appearance on Bill Bennett’s radio show) about the Fourth Circuit’s decision in the al-Marri case. The case basically holds that a terrorist lawfully in the U.S. cannot be detained without a trial if he never took the “battlefield” against U.S. forces and if he was not sent here by the government of a nation we’re at war with.
This decision is the latest evidence that our courts can’t be trusted to take a serious interest in the war on terror — a war upon which our national security (and maybe even survival) depends. Judge Motz’s decision is a classic case of exalting form over substance and, indeed, over reality.
According to facts that were undisputed for purpose of the appeal, al-Marri was closely associated with al-Qaeda and indeed trained with that organization at a terrorist camp. In 2001, he met with bin Laden and volunteered for “martyr duty.” Bin Laden duly ordered him to the U.S. (where he had once been a student). He entered on September 10, 2001 for the purpose of operating as a “sleeper agent” to facilitate terrorist activity. His mission also involved figuring out how to disrupt our financial system through computer hacking and obtaining information about poisonous chemicals. His efforts were funded by a known terrorist financier and he communicated with known terrorists by phone and email.
If al-Marri had been dispatched here for these purposes by the military high command of a country with which we were at war, there is no doubt that he would be an enemy combatant and, as such, could be held without trial. Alternatively, under Fourth Circuit jurisprudence, if he had once fought against the U.S. on a formal battlefield, say in Afghanistan, he could also have been detained here when he came to pursue his assigned acts of terrorism. But because neither of these conditions was satisfied, two out of the three judges who heard the case voted in al-Marri’s favor.
But this outcome makes no sense in the context of the war on terror, particularly given Congress’s express grant of power to the president to use all necessary force against those nations and organizations that authorized, committed, or aided in the 9-ll attacks. Why should it matter whether a terrorist is sent here by bin Laden, the head of an organization with which we are at war, or the head of a nation we’re fighting? Why, for that matter, should it matter what prior hostile activities al-Marri had engaged in before coming to the U.S. as a terrorist?
As Congress recognized, our mortal enemy at this point in history is al-Qaeda, which happens not to be a nation. Our front in this war is everywhere, which is not a battleground. And the combatants who are intent on killing Americans are civilians — right up until the moment when they hijack our planes or detonate a dirty nuke on the mall in Washington, D.C.
It’s a pity that so many judges seem oblivious to this reality, insisting that modern circumstances yield facts patterns identical to those that obtained in World War II or even the Civil War, and ruling against the government when, inevitably, they don’t.
It’s also ironic that the same judges who, when it comes to inventing new rights, embrace the concept of a living constitution that evolves to fit the conditions of the day, refuse to look beyond narrow (and in this case, I think, erroneous) interpretations of Civil War and World War II cases when the issue is protecting our national security.
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