Several years ago, after Congress passed the National Defense Authorization Act of 2011, some states (at the urging of the Tenth Amendment Center), along with ill-informed conservatives, the ACLU, and others, considered enacting legislation that would make it a crime for state employees to participate in the investigation, detention, or arrest of any suspected member of al-Qaeda or its affiliates.
Yes, you read that correctly.
The hook was, it applied only if those suspected terrorists were American citizens.
Virginia passed such a law, as did a handful of other states. As I wrote in a Washington Post op-ed co-authored with attorney David Rivkin, the Virginia law “trenches on the federal government’s war powers and violates conditions under which Virginia and other states have received billions of dollars of federal funding.”
Furthermore, that law has “dangerous symbolic and practical consequences and undermines the cooperation necessary to disrupt and defeat al-Qaeda plots on our shores.”
In March of this year, the Colorado State Senate was considering a similar state law.
In my testimony before the Senate Committee in Colorado, I made two points about the pending legislation:
- It is deeply flawed because it is premised on an erroneous statutory construction of the National Defense Authorization Act.
- It trenches on the federal government’s plenary war powers and—like Virginia’s law—violates conditions under which Colorado has received millions of dollars of federal funding.
After hearing the facts, the Committee voted against the legislation.
To date, how many states have used these laws to prosecute state employees for participating in the arrest, detention, or interrogation of an American al-Qaeda, ISIS, or affiliated terrorist?
Now comes the misnamed “Due Process Guarantee Act” from two U.S. senators.
It would prohibit the federal government, during wartime, from military detention of al-Qaeda, ISIS, or their affiliates if captured inside the United States. Rather than applying the law of war, and giving the suspected terrorist the process he or she is due under that body of law, the Due Process Guarantee Act would require the suspected al-Qaeda, ISIS, or associated person to be charged and tried in a court of law.
And the hook?
The act applies only to U.S. citizens and lawful permanent residents.
In other words, if passed, the act would prohibit the federal government from detaining al-Qaeda, ISIS, or associated forces captured inside the United States and holding them, even temporarily, under the law of war for the express purpose of interrogating them for intelligence purposes.
Instead, those suspected terrorists would receive Miranda warnings and, if the government can marshal sufficient criminal evidence against them, a trial.
That is not a criticism of our federal court system, which has an impressive record in securing convictions of hundreds of terrorists.
Rather, the act completely ignores the reality that our country is at war, and we should use, as I have written elsewhere, all lawful tools to incapacitate the enemy.
The law of war, which authorizes the use of military force, includes military detention, and lawful interrogation is one of those vital tools.
Also, since 9/11, there has been one—that’s right: one—al-Qaeda-trained operative who was arrested in the United States who fits the criteria under the Due Process Guarantee Act.
Jose Padilla was involved in a plan to detonate a dirty bomb in the United States. He was arrested at O’Hare Airport in Chicago in 2002 and placed into military custody. He challenged his detention, and the Fourth Circuit Court of Appeals concluded that Padilla had been lawfully detained under the reasoning of the Supreme Court’s decision in Hamdi v. Rumsfeld.
Eventually, the federal government prosecuted him in federal court for material support to terrorism and convicted him. He received a 21-year sentence.
A lot has changed since 2002. ISIS, which did not exist at the time, is now on the march and has actively recruited Westerners, including Americans, to its cause.
In February 2015, FBI Director James Comey testified that the FBI is investigating suspected supporters of ISIS in all 50 states. Hundreds of Americans have traveled to Syria and elsewhere to get trained by ISIS. Thousands of Western Europeans have done the same.
So at a time when the evolving enemy is successfully recruiting Americans and Western Europeans to join their cause and take up arms against the United States and the West, a handful of U.S. senators want to funnel American al-Qaeda, ISIS, and associated forces captured inside the United States into federal court at the expense of lawfully interrogating them and holding them—even temporarily—under the law of war inside the United States.
The act guarantees one type of due process, but it ignores another vital distinguished body of law: the law of armed conflict at a time when our country is at war.
It should be called the “Only One Process Guarantee Act.”