The Constitution and trials for terrorists

Excerpts: America’s War On Islamist Terror . . . Or Is It?
By Andrew C. McCarthy

When the life of the state is imperiled, that is, the Constitution does not become suspended; it adapts. In times of armed conflict, it imposes the laws and customs of war, which—under those circumstances—are as consistent with the rule of law as judicial processes are in peacetime.

On this point, it is worth pausing to recall why we have a Constitution.

After achieving independence, our country proved unsuccessful in governing itself under the Articles of Confederation. Paramount among the reasons for this was the attempt under the Articles to provide national security by committee— something that proved utterly ineffective in dealing with threats from England, Spain, and the Barbary Pirates. The Constitution remedied this potentially fatal weakness by placing all executive power, including the power of commander-in-chief, in a single elected official—the president—who could act with great energy and dispatch. The Framers of the Constitution understood that the rights we cherish would be little more than parchment promises unless we could defend ourselves and defeat our enemies. Moreover, they understood that—given human nature—we would always have enemies.

Unlike opponents of the war against Islamist terror today, they did not believe that we would be able to define our enemies out of existence by not uttering their names—or rationalize them out of existence by insisting that their hostility
is somehow our own fault. Nor did the Framers believe that we would be able to indict our enemies into submission in our civilian courts. They believed that we would have to defeat them, which means being able to enforce the protocols necessary to wage war successfully.

These protocols are the laws of war, and they are older than the U.S. itself. They include requiring combatants to wear uniforms, to carry their weapons openly, to be part of a regular armed force, and, most importantly, to refrain from intentionally targeting civilians. They also define wartime powers and privileges. Enemy combatants, for example, may be captured and detained until the conclusion of hostilities. Fighters who adhere to the laws of war are entitled to various protections upon capture. By contrast, fighters who flout the laws of war—such as non-uniformed terrorists who target civilians—are unlawful combatants and may be prosecuted by a military commission for war crimes.

This is not a judicial system, and it is not intended to be. But it is every bit a legal system. And throughout our history— at least until recently—this has been well understood. Since 9/11, however, anti-war lawyers have challenged the idea of a separate legal status for unlawful combatants. Here they are up against not only common sense but history.

“Reprinted by permission from Imprimis, a publication of Hillsdale College.”