At NRO, Andy McCarthy goes after Senator Rand Paul, to some extent on originalist grounds, on the constitutionality of the National Defense Authorization Act (NDAA) recently passed by the Senate. Senator Paul responds here, and comes off best, in my view.
The issue is the President’s ability to detain without trial U.S. citizens suspected of supporting terrorism. Under the Senate version of the NDAA, as I understand it, U.S. citizens can be detained if the President finds they are engaged in terrorism or “abetting” terrorism. (Analysis at Lawfare by Benjamin Wittes here and Robert Chesney here.) Senator Paul opposes the NDAA on constitutional grounds; McCarthy thinks the Senator "needs much better guidance about how the Constitution works in wartime."
The due process clause of the Fifth Amendment requires that no person be deprived of “liberty … without due process of law.” Under ordinary circumstances, I think no one would contend that extrajudicial executive detention, even if authorized by Congress, qualifies as due process of law. To be sure, as an original matter that protection likely does not extend to aliens abroad (see here), and it possibly does not extend to U.S. citizens fighting for the enemy and captured on the battlefield (that was the conclusion of the 2004 Hamdi v. Rumsfeld case, although Justice Scalia dissented, and any serious originalist would need to contend with the substance of his dissent before accepting Hamdi as rightly decided).
But as Senator Paul explains, the Senate version of the NDAA allows extrajudicial executive detention of U.S. citizens (a) not captured on the battlefield and (b) not claimed to be enemy combatants. The latter point arises from the “abetting” language: a non-combatant can “abet” terrorism by, at minimum, providing material support intending to further terrorist goals, even though that support might be only in the form of money or other non-lethal assistance. McCarthy does not show any originalist evidence for the proposition that (alleged) non-combatant support for the enemy allows extrajudicial executive detention.
Indeed, another provision of the Constitution strongly suggests otherwise. Article III, Section 3, provides that “Treason against the United States, shall consist only of levying war against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt act, or on Confession in open Court.”
The plain import of the treason clause is that the charge of “adhering to [the U.S.’s] enemies, giving them aid and Comfort” (which equates to “abetting” those enemies) must be proven in court, under constitutionally specified procedures. To allow the President extrajudicially to imprison persons suspected of such an offense is to end-run the treason clause. (And, as Justice Scalia explains in his Hamdi dissent, the framers were especially concerned about extrajudicial executive detention).
Against this, McCarthy invokes not originalist sources (I believe he has none) but three modern court decisions: Hamdi (manifestly not relevant to non-battlefield detentions), In re Quirin, and the court of appeals decision regarding Jose Padilla. Quirin is the World War II Nazi saboteurs case, allowing a military commission (rather than a court) to proceed against a U.S. citizen who had enlisted in the German army and sneaked into the U.S. to commit acts of sabotage. It may well have been wrongly decided (the Supreme Court of the World War II era wasn’t great at enforcing the Constitution against the national government), but in any event it (like Hamdi) doesn’t encompass people who aren’t combatants. Similarly, the Padilla decision is questionable on originalist grounds and involved a person at least accused of being a combatant. Again, the most constitutionally egregious part of the NDAA is that it allows executive detention of U.S. citizen non-combatants. Thus the better precedent (if precedent rather than originalist analysis is preferred) is the Civil War-era decision Ex Parte Milligan, which required judicial process for non-combatants captured outside the battlefield and accused of assisting the enemy in wartime.
These are difficult issues. But McCarthy’s bluster (“Rand Paul: Libertarian Extremist”) seems wholly inappropriate. Unless McCarthy has strong originalist evidence, which isn’t provided in his lengthy article, I think one must regard his case as, at best, unproved. The Constitution’s general rule, apparent in the Fifth Amendment and the treason clause, is that judicial process is required in the case of U.S. citizens accused of assisting the enemy. Originalists should be open to arguments for exceptions based on 18th-century practice, but I’m not aware of any. Senator Paul's constitutional concerns about the NDAA thus seem well grounded.
Posted at 7:00 AM