Finally, the court completely ignored Supreme Court precedent. During World War II, U.S. citizen Herbert Haupt was captured while trying to blow up bridges, railroads and manufacturing plants for Nazi Germany. The Supreme Court held in its "Ex parte Quirin" decision that Haupt could be tried by military tribunal, and he was subsequently executed. Haupt and Padilla were both United States citizens; both planned acts of destruction on behalf of an enemy of the United States; and both were captured on U.S. soil, oddly enough, in Chicago. Yet the court practically dismissed Quirin out of hand, even stating that "Quirin involved a war that had a definite ending date. The present war on terrorism does not."
Enter Encyclopedia Brown. The boy detective creation of Donald Sobol, Brown could solve any mystery over dinner and before dessert. He once examined a sword that was supposedly inscribed and presented "at the First Battle of Bull Run" in 1861 and immediately classified it a hoax. How so? In 1861, there hadn't yet been a Second Battle of Bull Run, so nobody could know the 1861 battle was the "first," and not simply the only, battle.
So, a question for the judiciary: How did the Supreme Court know in 1942, the year Quirin was decided, that World War II would have "a definite ending date" in 1945? Do presidents in wars with known ending dates have more discretion to fight the enemy than presidents in wars where the conclusion is unknown? What's the matter? You haven't touched your dessert.
Along the way to this excellent concluding point, Billok notes:"Instead, much like a certain presidential candidate, Judge Floyd believes that this is a law enforcement matter, not a military matter."
AHA! We get to the heart of the matter! The fundamental premises underlying this court decision, and indeed, underlying many on the Left who are arguing about the civil liberties of terrorists at Guantanamo or about Abu Ali or Jose Padilla are these: The War on Terror is not a REAL war. Dealing with terrorists is a LEGAL matter, not a MILITARY matter. And finally, a sub-premise: dealing with it in a MILITARY manner threatens our very way of life and the freedoms we enjoy.
We went throught most of this discussion (I thought) during the 2004 presidential campaign. These premises were (if I'm not mistaken) rejected by the American public when it rejected John Kerry. Indeed, a substantial number of Americans supported Kerry and his approach; but even more supported President Bush and his. Yet these fundamental premises have not gone away.
If you understand this premise, then all the behavior and rhetoric as well as the fears and anxieties of the Left fall nicely into place.
Let us examine the three aspects of this premise.
1. The War on Terror is not a REAL war.
In my opinion, the WOT has a ridiculous name--it should be the war on Islamofascism or the war on Islamic Extremists, which would be more to the point. But anyone who doubts that we are in a REAL war, with REAL enemies determined to kill as many Americans and eliminate Freedom from the face of the earth, is simply in complete denial. You are beyond rational discussion, and I cannot help you.
2. Dealing with terrorists is a LEGAL matter, not a MILITARY matter.
In the normal course of events, the President (or anyone else for that matter) has no authority to incarcerate American citizens without due process. Such a thing would be an unspeakable violation of individual rights AND do terrible damage to the very underpinnings of a "free" society--making a mockery of them.
I unreservedly agree with that statement. Reasonable people, however, can and have asserted that there are other factors and situations which must be taken into account. These situations are, fortunately fairly rare, but recognizing them as critical for the survival of the nation itself requires that we discuss them.
In fact, as the above links show, this issue has been rationally debated and assessed before in US history, and that the highest court in the land weighed in on the issue. During wartime, the President, as Commander in Chief of all the military services, does have the constitutional authority to declare someone captured in the course of waging war against us--even an American citizen--an enemy combatant; and can incarcerate that person or persons militarily until the cessation of combat. This is a significant Supreme Court decision relevant to the argument.
And, unless you are prepared to commit national suicide, the reasons for this court decision are clear: during war time our enemies want to kill us in any way they can; and they will use any means they can--including our own confused American citizens--to accomplish that goal. This was true during the Haupt case in World War II. It is even MORE true today, when weapons of mass destruction, able to kill thousands at a time, can fit into a small suitcase.
3. Dealing with it in a MILITARY matter threatens our very way of life and the freedom we enjoy.
Let's think about this one for a moment. It is a reasonable issue to bring up (as I mentioned previously here).
When I was in medical school, I rented a cute little house in Santa Monica, California. Being a trusting soul, I left my back door open all the time, even at night. I stubbornly defended this (in retrospect stupid) behavior to my astounded friends as an issue that was deeply important to me. I needed to believe that I could trust people. I felt I was saying "See, I trust you! You don't want to burgularize my house or attack me, because I believe in you and don't think you would do that!"
OK, I was very young and naiive then. I also felt that this genuinely trusting behavior demonstrated my committment to freedom (no locked doors for me!) and belief in the goodness of my fellow man.
It took three burgularies while I was at school to convince me that this was not a rational approach to dealing with my beliefs and feelings. Of course, I still believe in Freedom--more than just about anything. I also still believe in the basic goodness of people (but that goodnesss and good will too often gets twisted and manipulated from within and without). But I am no longer trusting to the point of idiocy in dealing with these aspects of my view of life.
So, what about you? Do you believe in freedom to the point that you would cheerfully leave the doors of your home unlocked (as I once did), so as not to impede the "freedom" of the murderer or burgular? Do you think freedom is so absolute a concept that, having entered your home, you would then happily assist the burgular in finding your treasures; and threatening your family with harm? Are you willing to let him kill you or your loved ones to make this point?
Let's take this one step further. I might be inclined--since I am still a trusting sort--to leave my doors unlocked most of the time, especially if I lived in a quiet town or neighborhood where there wasn't much crime and where such things are rare or even unheard of occurrance. I might consider it a reasonable and even occasionally a practical thing to do, as an expression of my rights as a citizen.
But what if the local police put out a bulletin informing me and other householders that they had reliable information that led them to believe there was a vicious murderer on the loose in my town or neighborhood; and that the m.o. of this murderer was to enter his vicitm's home to commit his murders.
Would it be reasonable and prudent under those circumstances to continue to blithely keep my doors unlocked, claiming that my "freedom" to keep it open would be violated were I to lock it; and wouldn't I, in a way, be almost challenging this vicious murderer to enter my home and do his worse?
Would it not be the height of folly to do such a thing? I may be a trusting soul, but I am no longer an irrational, completely emotional one. Under the circumstances where I knew there was a murderer out there, I would bolt my door until this person were apprehended and the danger to my home and the lives of my loved ones had passed.
It is not a betrayal of the concept of a free society to batten down the hatches during a storm. It is not an offense to the goodness within mankind to recognize that there is evil out there, and that evil chiefly depends on these very values of the good to achieve its purposes. One of my favorite quotes is by the statesman Edmund Burke (on the sidebar of this blog): "The only thing necessary for the triumph of evil is for good men to do nothing."
One of the most reasonable things we can do --at a minimum, I would think--is not to make it so damn easy for evil to kill us.
UPDATE: Andrew McCarthy weighs in on the Padilla case.