Matt K. Lewis, a writer whom I greatly admire, has a post up at the Daily Caller criticizing my Washington Post column on Gov. Bob McDonnell’s failure to fight legislation passed by the Virginia general assembly disassociating the commonwealth from the military detention of al Qaeda terrorists who happen to be U.S. citizens.
As I point out, the bill, HB 1160, would effectively bar Virginia state troopers from arresting a terrorist like Anwar al-Awlaki if they knew he would be put in military detention. Lewis writes:
[T]his is much more complex than the Manichean view presented by Thiessen. Al-Awlaki was an American. He was killed in Yemen, but had he been arrested in America, would his rights as a citizen have been dismissed? This, of course, raises all sorts of ethical questions — even among hawks who generally agree that being tough on terrorism is correct. For example, do we want the state to have the power to indefinitely detain American citizens?
… Civil liberties activists have made a huge deal of the provisions within the NDAA that permit indefinite detention of American citizens. Thiessen, apparently, thinks habeas corpus (the right enshrined in Article 1 of our Constitution) can be suspended indefinitely by just declaring our nation to be in a state of permanent war.
Maybe terrorism is different? But if Thiessen thinks that’s the case, he’s free to encourage an amendment to our Constitution. Until that point, it’s quite clear that McDonnell should be praised, not excoriated, for Virginia’s leadership among the states in defending our Constitution.
Well, no. The Supreme Court has ruled that the state does indeed have the power to indefinitely detain American citizens who join the enemy. In Hamdi v. Rumsfeld, the Court found that the U.S. could hold citizens who join al Qaeda as enemy combatants:
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. … 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” …
As to habeas, the court ruled that:
…a citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government’s factual assertions before a neutral decision maker.
In other words, so long as he has the right to challenge their designation as an enemy combatant before a neutral decision maker, an American citizen who joins al Qaeda can be held indefinitely for the duration of hostilities. No need to amend the Constitution, Matt!
And, incidentally, Gov. McDonnell agrees with me. As I point out in my column:
McDonnell spokesman Tucker Martin told me the governor believes “that terrorist acts against our nation by enemy groups and combatants should be dealt with for what they are — acts of war,” and that an American citizen can be held as an enemy combatant, provided he can challenge his detention in court. But once the bill had been approved by such overwhelming margins, his office says, McDonnell had only three options: veto it (and see his veto overridden) sign it, or amend it. He decided to go along with the bill and amend it with provisions to protect Virginia’s ability to cooperate in law enforcement efforts in the war on terror.
Regardless of where you come out on the constitutional question, one thing is clear: McDonnell didn’t show “Virginia’s leadership among the states in defending our Constitution.”