Enemy Combatants, Part III: Hamdi and the Power of the Executive in Wartime

We argued late last month that, contrary to the way it was portrayed in the MSM, the Supreme Court’s decision in Hamdi v. Rumsfeld was actually a substantial victory for the Presidency in general and the Bush Administration in particular. Specifically, we noted that reports that terrorists held by the U.S. would now get access to the U.S. court system were seriously mistaken.

Rather, what the Court held was that those held as enemy combatants would have an opportunity to present evidence that they were being wrongly labeled, but that such tribunals could be military bodies, i.e. creatures of the executive branch and not the judiciary.

We noted that the court held that:

There remains the possibility that the standards we have articulated could be met by an appropriately authorized and properly constituted military tribunal. Indeed, it is notable that military regulations already provide for such process in related instances, dictating that tribunals be made available to determine the status of enemy detainees who assert prisoner-of-war status under the Geneva Convention. In the absence of such process, however, a court that receives a petition for a writ of habeas corpus from an alleged enemy combatant must itself ensure that the minimum requirements of due process are achieved.

Today, Yahoo News passes along a report from the A.P. that provides solid evidence that our reading of Hamdi was correct. In its report, the A.P. wrote:

A detainee who allegedly fought for the ousted Taliban regime appeared Wednesday before a U.S. military hearing in Guantanamo Bay to determine whether he still poses a threat or has intelligence value.

The 28-year-old was accused of receiving weapons training in Pakistan and fighting against the Northern Alliance in Afghanistan, said Navy Lt. Terry Green, a spokesman for the Administrative Review Boards.

His name was also found on files seized during raids on suspected al-Qaida safehouses in Pakistan, Green said.

Green said the detainee had been in Guantanamo since 2002 but could not say where he was initially captured. His name and nationality were not disclosed.

His case was the 60th to go before the review boards, which are meant to determine whether almost 550 prisoners at the U.S. Naval base in Cuba still pose a threat to the United States and its allies or have intelligence value, Green said. Those who do not could be freed.

Although the panels began in December, the military did not open them to the media or provide details until this week. It was not immediately possible to determine what the prisoner said at his hearing. No transcript of his testimony was released. (Emphasis added)

This report makes it clear that the detainees are being heard by military courts, with appropriate secrecy and safeguards and, further, that the regular civilian U.S. court system is not involved in the least. Furthermore, as Hamdi makes crystal clear, no such civilian court could intervene in such board hearings so long as the Executive was able to demonstrate that certain minimal due process procedures and rights were being provided and respected.

In short, Hamdi affirmed what the President has been saying all along: as President he has the duty and the authority to detain those who would wage war against the United States and that this authority does not implicate the procedures or the mechanisms of the criminal law in the least, even if the detainee is a U.S. citizen.

Once again, as if more proof were needed, we see that those who looked down their noses, sneered and insulted the intelligence of the President were themselves wrong, wrong, wrong.

Karen Hughes Has No Overseas Experience

We recently heard a high-ranking member of the State Department announce to a group of assembled junior FSOs that whoever the President picks as the next Under Secretary for Public Diplomacy and Public Affairs will be a strong indicator of the direction the President intends to take not only this crucial component of our Department, but the Department itself.

What that means is that the President's appointment of Karen Hughes to that position has effectively ended the mini-debate about whether Condoleeza Rice's appointment could mean either that the President intended to engage the foreign affairs establishment or shake it up. The appointment of Hughes can only mean that the President intends to shape and bend the bureaucracy of the Department to suit his needs.

Too many of our colleagues seem to be unaware that they are not charged with saving the world and are, instead, commissioned officers of the President of the United States.

If this keeps up, we'll be forced to implement the foreign policy of the United States.

You can tell how good an appointment is by the number of howls that go up from the establishment, and right now they're howling. It appears that Ms. Hughes has no overseas or foreign experience. She may not have ever even approved a visa or been on a prison visit. The moaning and sneering reveals a complete lack of understanding about the difference between career appointments and political appointments.

Political appointees aren't supposed to be experts; they're supposed to provide policy leadership based on the will of the Executive, who has been elected and entrusted to the job by the American people. Experts execute policy, politicians direct it. And we suspect that PD is about to get an advance preview of the kinds of changes the Department can probably expect none too soon.

And, by the way, Franklin Delano Roosevelt didn't have any military command experience.

A Street Gang and the Coming Constitutional Crisis

Word reached us today that our colleagues at Immigration and Customs Enforcement have stuck a blow against the vicious Salvadorian gang Mara Salvatrucha, better known as MS-13. As reported early this morning by CNN, ICE officers arrested over the past weeks around 103 known MS-13 gang members on criminal and immigration charges in a nation-wide operation that included strikes in New York, Washington, Los Angeles, Baltimore, Newark, Miami and Dallas.

MS-13 is notable among gangs for a bloodthirsty mindlessness that distinguishes it in poor company, making the old crack-fuelled gang wars of the 1980’s seem positively tame by comparison. From its roots in Los Angeles (our hometown), MS-13 has grown not only to become a serious national organized crime problem, but an international one as well. As a gang expert and Orange County (Calif.) District Attorney Investigator Al Valdez has written:

Since its inception in California and Washington, DC, Mara Salvatrucha has expanded into Oregon, Alaska, Texas, Nevada, Utah, Oklahoma, Illinois, Michigan, New York, Maryland, Virginia, Georgia, Florida, Canada, and Mexico. MS is unique in that, unlike traditional U.S. street gangs, it maintains active ties with MS members and factions in El Salvador. Mara Salvatrucha is truly an international gang.

Mara Salvatrucha gang members maintain contact between groups in the United States and El Salvador for several specific reasons. In El Salvador, a hand grenade sells for $1.00-$2.00 U.S. currency and an M-16 rifle will sell for approximately $200.00-$220.00 U.S. dollars. This communication and alliance provides a mechanism for MS gang members to access military-style munitions and also establishes a network to traffic illegal firearms into the United States.

Although military weapons seem to be readily available to this gang, street intelligence indicates they often have difficulty obtaining handguns, which are not readily available in El Salvador. This creates a demand for small arms by MS members in the U.S. and El Salvador. This demand is so high that MS members will often take handguns as payment for drug transactions. The guns are then sent back to El Salvador, or used in the United States.

MS is also involved in exporting stolen U.S. cars to South America. The cars are often traded for drugs when dealing with cartels. It is estimated that 80% of the cars driven in El Salvador were stolen in the United States. Car theft is a lucrative business for MS.

The Mara Salvatrucha gang is involved in a variety of criminal enterprises. As with members of other gangs, MS members seem willing to commit almost any crime, but MS gang members tend to have a higher level of criminal involvement than other gang members. MS members have been involved in burglaries, auto thefts, narcotic sales, home invasion robberies, weapons smuggling, car jacking, extortion, murder, rape, witness intimidation, illegal firearm sales, car theft and aggravated assaults. In terms of drug trafficking activities, common drugs sold by MS members include cocaine, marijuana, heroin, and methamphetamine. Mara Salvatrucha gang members have even placed a “tax” on prostitutes and non-gang member drug dealers who are working in MS "turf." Failure to pay up will most likely result in violence.

The common liberal, anti-law-enforcement line put out by academics and other sociological experts is that due to our harsh immigration law we unwisely deported L.A. gang members to El Salvador, thus internationalizing both a gang and a uniquely American gang culture. In this way, you see, Republicans are actually responsible for this travesty.

This story is nice and neat in that, in typical liberal racist fashion, people with brown skin are never responsible for their actions and, what is more, to the extent there is any responsibility to be had it lies with the all-controlling white folks who can determine minority people’s every move, emotion and thought through mere public policy stances.

The reality is quite different. The disastrous civil war in El Salvador left a legacy of deep brutalization of the population that, when mixed with our notoriously porous borders, has allowed a pathological strain to mix with a related cousin in our own indigenous gang culture. The result is a gang of almost unbelievable cruelty. From mass murders, to the execution of federal agents to the rape of deaf and disabled teenage girls, the fine members of MS-13 provide yet more proof that that Nazis were anything but an aberration and that civilization must always be fought for.

As of right now, MS-13 presents a serious, if surmountable, law enforcement challenge. But what if that was to change?

As was reported in the Boston Herald in January of this year, and as has been circulating in the rumor mills ever since, there have been stories to the effect that someone, somewhere has some evidence of an Al-Qaeda connected individual meeting with high-level members of MS-13 in San Salvador. (NOTE: As we have explained many times, we do not comment and never write about subjects on which our jobs have exposed us to classified materials; we have no way of knowing if what the Herald reported and the rumors have been saying is true). Apparently, this individual was inquiring about the possibility of Al-Qaeda or its sympathizers using the extensive smuggling network of MS-13 to enter and/or leave the United States undetected.

As we wrote about extensively at the end of February, the Supreme Court recently re-affirmed that the President has the authority to detain enemy combatants during the War on Terror, at least so long as hostilities are active and on-going. As a legal matter, it does not matter a bit if enemy combatants are U.S. citizens, legal permanent residents or aliens. Nor does it matter in an enemy combatant case that the President either cannot or does not want to pursue the matter through the criminal justice system. To recap the central holding of last year’s Hamdi v. Rumsfeld decision, the Supreme Court ruled that:

The capture and detention of lawful combatants and the capture, detention, and trial of unlawful combatants, by "universal agreement and practice," are "important incident[s] of war." Ex parte Quirin. The purpose of detention is to prevent captured individuals from returning to the field of battle and taking up arms once again.
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There is no bar to this Nation's holding one of its own citizens as an enemy combatant. In Quirin, one of the detainees, Haupt, alleged that he was a naturalized United States citizen. We held that "[c]itizens who associate themselves with the military arm of the enemy government, and with its aid, guidance and direction enter this country bent on hostile acts, are enemy belligerents within the meaning of ... the law of war." While Haupt was tried for violations of the law of war, nothing in Quirin suggests that his citizenship would have precluded his mere detention for the duration of the relevant hostilities. Nor can we see any reason for drawing such a line here. A citizen, no less than an alien, can be "part of or supporting forces hostile to the United States or coalition partners" and "engaged in an armed conflict against the United States,"; such a citizen, if released, would pose the same threat of returning to the front during the ongoing conflict. (Emphasis added, citations removed).

Under this holding, if these rumors hold true and the President comes into possession of actionable intelligence indicating that Al-Qaeda or some other terrorist group allied with it has entered into an alliance with MS-13, overnight the matter would convert from a regular criminal matter into a front of war. That being so, and under the authority the Court has so recently affirmed he was correct in claiming he possessed, the President of the United States could order the detention of all known or suspected MS-13 members. Under the additional procedural protections granted by Hamdi, such detainees would be afforded a chance to present evidence that they are not enemy combatants, but not necessarily in the civilian Federal court system.

This scenario is interesting because it illustrates in a dramatic way how the fact that we are at war and the fact of the Executive’s broad authority to prosecute that war could lead us quickly into a novel situation that would touch off a ferocious debate both here and abroad.

Based on our reading of the law, the President would be well in his rights to proceed as we have described. It is even possible that the few rumblings to this effect that are rumored to have issued from some White House personnel scuttled the deal brewing between Al-Qaeda and MS-13.

Whatever the true facts are, though, it appears to us that sooner rather than later that segment of the population that (wrongly) believes that we are neither at war nor that the President possesses a huge amount of power to win that war will be presented with, if not this one, a similar scenario. The resulting crisis could, in its own way, present as serious a threat to the United States as the enemy.

Yet another compelling reason for the President and his supporters to continue to educate, advocate and explain both what we are doing and why.

The Liberal Marketplace of Ideas: You're Illegal

During the Presidential campaign of last year first Howard Dean and then John Kerry let is slip on more than one occasion that the first thing they would do as President of the United States would be to “investigate” Fox News, Rupert Murdoch and other elements of conservative media. What, exactly, they would be investigated for was never made quite clear, though the suggestion was enough to whip their minions (Memo to Chairman of Washington State Democratic Party: not a type of steak) into a self-righteous frenzy.

Since our time at the University of California we’ve noticed a constant among liberals everywhere: they simply cannot stand free speech unless they’re the only ones who get to speak. The rise of Fox News, conservative talk radio and the Blogosphere assaults the modern liberal’s sensibilities on so many levels, we are actually starting to believe it is literally driving them crazy.

Take John Kerry’s recent appearance at the John F. Kennedy Presidential Library, for example. As reported by P.J. O’Rourke, Kerry had a number of monstrously stupid observations to make about conservative media, and, in so doing, revealed both his contempt for the marketplace of ideas and just how badly he and his ilk are being beaten in it.

Dusting off the standard liberal playbook, Kerry first trotted out a long-discredited “survey” that revealed that a large number of people who rely on Fox News for their news believed both that WMD had been found in Iraq and that Saddam Hussein was responsible for 9/11 to prove that Americans are, well, stupid:

Addressing the audience of tame Democrats, Kerry explained his defeat. "There has been," he said, "a profound and negative change in the relationship of America's media with the American people. . . . If 77 percent of the people who voted for George Bush on Election Day believed weapons of mass destruction had been found in Iraq--as they did--and 77 percent of the people who voted for him believed that Saddam Hussein was responsible for 9/11--as they did--then something has happened in the way in which we are talking to each other and who is arbitrating the truth in American politics. . . . When fear is dominating the discussion and when there are false choices presented and there is no arbitrator, we have a problem."

And guess who is to be the arbitrator? The people who are going to make sure that Americans don’t get such stupid ideas in their heads and think only good thoughts about people like Senator Kerry?

"We learned," Kerry continued, "that the mainstream media, over the course of the last year, did a pretty good job of discerning. But there's a subculture and a sub-media that talks and keeps things going for entertainment purposes rather than for the flow of information. And that has a profound impact and undermines what we call the mainstream media of the country. And so the decision-making ability of the American electorate has been profoundly impacted as a consequence of that. The question is, what are we going to do about it?"

You may be surprised to hear that the MSM “did a pretty good job of discerning” over the last year, given that the New York Times, CBS and the BBC all had to fire lead personnel over the fact that they just damn well made stuff up out of whole cloth in service to an obviously partisan political agenda. But then, if you’re reading this, your part of a dangerous sub-culture, aren't you?

And what, Senator, are we going to do about these dangerous people that keep disagreeing with the MSM and have the nasty habit of not keeping their ill-informed, non-making-stuff-up mouths shut? Here we see the cold iron of the liberal’s tendency to want to shut their opponents up that lies behind the calm façade and the Birkenstocks.

[Meeting host and Boston Globe columnist Thomas] Oliphant responded, in a responsible mainstream media way, saying, "Going back to the economics of it, though, isn't this why God created the Sherman and Clayton acts?"
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"That's something," Kerry said, "that a president with a veto pen and with the right of proposal can achieve.”

Who in the world is acting in restraint of trade, given the intense competition in the world of journalism generally and the cable news networks specifically? One wonders what Oliphant and Kerry are thinking about here, though it's probably not liberal papers like the San Francisco Chronicle that run under trade-restraining agreements with their competitors to share the lucrative Sunday paper market. At the very least, their comments make it clear that, had they the power, they would now be using the full force and weight of the United States Department of Justice to shut you and us the hell up.

From campus speech codes, to stacked Sunday morning “news” shows to the smothering social pressure created by liberal racial politics and political correctness, liberals have shown that they cannot handle the free marketplace of ideas. Instead of dusting themselves off and throwing themselves back into the argument, they grasp for ways of declaring those they disagree with illegal.

O’Rourke concluded that the night he spoke this words, Kerry had, in effect, gone beyond the pale in what is acceptable in American political discourse:

It's hard for an American politician to come up with an ideological position that is permanently unforgivable. Henry Wallace never quite managed, or George Wallace either. But Kerry's done it. American free speech needs to be submitted to arbitration because Americans aren't smart enough to have a First Amendment, and you can tell this is so, because Americans weren't smart enough to vote for John Kerry.

We take comfort in knowing that liberals lack both the means and the ability to effect their desires, given their current electoral position and the slight problem of the Constitution of the United States. Further, as we have remarked before, conservatives continue to win the arguments of the day because, as a system of ideas, conservatism continues to explain the reality around us and cause and effect much, much more effectively than modern liberalism.

But that comfort is hindered by the knowledge that the old problem continues: conservatives merely think that liberals are wrong, while liberals think—really, actually think—that conservatives are evil.

And, hey, you’d do anything you could to stop evil, right?

Even if it means threatening their candidates, shooting up their campaign headquarters, lying to millions to discredit them or trying to steal elections.

The Cedar Revolution Advances

Totally outdoing Hezbollah's "We Love To Be Occupied" rally last week, the Lebanese people have again taken to the streets in their hundreds of thousands to demand independence, freedom and sovereignty.

Again, a free Lebanon is not likely to be an ally of the United States or even agree with us on many things. That is not the point. Neither does free Sweden nor free France. The point is that the new space the President's policy is opening up in the Middle East will allow other interests other than that of Islamic Fascism a real voice in Middle Eastern politics and that real voice will moderate and modernize those nations in steps.

From CNN:

BEIRUT, Lebanon (CNN) -- Hundreds of thousands of people gathered in Beirut Monday for a massive opposition rally four weeks to the day since Lebanon's former Prime Minister Rafik Hariri was assassinated.

Flag-waving crowds from across Lebanon flooded into Martyrs' Square in central Beirut, just meters (yards) from Hariri's grave.

They are demanding an international inquiry into his February 14 killing, the resignation of Lebanese security chiefs and a total Syrian withdrawal.

"This is a tremendously large crowd, the size of which is unprecedented in Lebanon's modern history," said CNN's Brent Sadler in Beirut. "It is truly massive and cannot be ignored."

Organizers are aiming to draw 1 million protesters, which would double the estimated 500,000 turnout for a massive pro-Syria demonstration organized by Hezbollah last week. Wire services estimated Monday's turnout at around 800,000.

The winds of freedom and democracy are blowing, thanks to our brave President who stuck to his principles and his guns in the face of an unprecedented attack on both his integrity and his intelligence by an ever-increasingly out of touch and frantic MSM.