Last month I worried about Attorney General Eric Holder's declaration at his confirmation hearing that "we are at war" with terrorists, noting that such language has often been used to justify legal shortcuts and abridgements of civil liberties. Holder's full exchange with Sen. Lindsey Graham (R-S.C.) provides further grounds for concern:
Graham: Mr. Holder, is it fair to say that we're at war, in your opinion?
Holder: I don't think there's any question but that we are at war. And I think, to be honest, I think our nation didn't realize that we were at war when, in fact, we were.
When I look back at the '90s and the Tanzanian—the embassy bombings, the bombing of the Cole, I think we as a nation should have realized that, at that point, we were at war. We should not have waited until September the 11th of 2001 to make that determination.
Graham: I'm almost ready to vote for you right now. (LAUGHTER) I'll stop. I agree with you. We're at war. And the enemy that we're at war with, would you agree, is an unconventional enemy?
Holder: No question about that. There is not going to be a surrender signing on the battleship Missouri. This war is not going to end in that way.
Graham: And the people who are fighting, they don't wear uniforms.
Holder: They do not, which…
Graham: They operate outside the law of armed conflict.
Holder: They do….
Graham: Where is the battlefield in this war?…
Holder: The battlefield—there are physical battlefields, certainly, in Afghanistan. But there are battlefields, potentially, you know, in our nation. There are cyber battlefields…where we're going to have to engage.
But there's also—and this sounds a little trite, but I think it's real—there's a battlefield, if you want to call it that, with regard to the hearts and minds of the people in the Islamic world….
Graham: Now, when you talk about the physical battlefield, if our intelligence agencies should capture someone in the Philippines that is suspected of financing Al Qaeda worldwide, would you consider that person part of the battlefield, even though we're in the Philippines, if they were involved in an Al Qaeda activity?
Holder: Yes, I would.
In Holder's view, then, we are engaged in a war that started years before we noticed it and may never end, at least not in any definitive way. The enemy is not simply the guy who shoots at you on the battlefield, who can be readily identified; he can be anyone, anywhere who helps anti-American terrorists. He could be a guy captured in the Philippines suspected of funneling money to Al Qaeda, or (presumably) he could be the employee of an Islamic charity in the U.S. that is accused of sending money to Hezbollah. Given Holder's invocation of cyber and mental battlefields, the enemy could even be someone accused of fomenting terrorism through incendiary online criticism of the U.S. government. The implication is that any of these people could be held in military custody without trial until the cessation of hostilities, i.e., indefinitely.
At her confirmation hearing last week, Elena Kagan, President Obama's nominee for solicitor general, agreed that someone like the suspected Al Qaeda financier captured in the Philippines could be subject to indefinite military detention. She also agreed with Lindsey that "America needs to get ready for this proposition that some people are going to be detained as enemy combatants, not criminals, and there will be a process to determine whether or not they should be let go based on the view that we're at war, and it would be foolish to release somebody from captivity that's a committed warrior to our nation's destruction." While the status of someone captured in an ordinary war can be based on "a battlefield determination by a single officer," Lindsey added, such a classification in "a war without end" requires "more due process." He said that process must be "transparent" and include "an independent judiciary involved in making that decision beyond the executive branch." Kagan again concurred.
It should be acknowledged that what Lindsey and Kagan seem to have in mind is an improvement over the Bush administration's original detention policy, major aspects of which have been rejected by the courts. Bush asserted that he had the unilateral authority to lock up anyone he accused of links to terrorism, including citizens and legal residents, whether captured on or off a battlefield, inside or outside of the United States. Bush's lawyers maintained that such a prisoner had no right to counsel or judicial review of any sort. In practice, such powers would make every American's freedom completely subject to the president's whim.
Obama is not asserting that kind of authority. But he does seem to be preparing the ground for a military detention system that will hold the sort of suspects who could be (and have been) successfully tried in ordinary criminal courts for participating in or abetting terrorism. Such suspects need not even be tried by military tribunals; they could simply be identified as "unlawful enemy combatants" through a process that is yet to be determined but that will certainly be much less rigorous than a full-blown trial. What will be the basis for deciding which suspects get full due process and which get something far less, which receive determinate prison sentences and which are held indefinitely? If the option is available, it will always be tempting to take the easier route, which could mean that every case related to terrorism will be militarized. Then anyone accused of aiding terrorism can forget about justice as it is usually understood.