An Amicus Brief Attorney General Holder Is Probably Wishing He Hadn’t Filed

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On Saturday, Andrew McCarthy posted an article at the National Review on an amicus brief  filed by Attorney General Eric Holder in 2004 on behalf of Jose Padilla.  Jose Padilla was charged with plotting a dirty bomb attack and convicted of aiding terrorists.

The article reports on the brief filed by Attorney General Holder:

“It is a comprehensive attack on Bush counterterrorism, an enthusiastic endorsement of the law-enforcement approach in vogue during the Clinton era (when Holder was deputy attorney general under Janet Reno, who also signed on to the Padilla brief). This might explain why Holder sometimes has difficulty answering seemingly easy questions. That’s what happened this week, when the Senate Judiciary Committee quizzed the attorney general on the lawfulness of the U.S. military’s targeted killing of bin Laden.”

On September 18, 2001, Congress passed the Authorization for Using Military For (AUMF).  According to the website findlaw.com this law states:

SEC. 2. AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES.

    (a) IN GENERAL- That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

    (b) War Powers Resolution Requirements-
      (1) SPECIFIC STATUTORY AUTHORIZATION- Consistent with section 8(a)(1) of the War Powers Resolution, the Congress declares that this section is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution.
      (2) APPLICABILITY OF OTHER REQUIREMENTS- Nothing in this resolution supercedes any requirement of the War Powers Resolution.

Approved September 18, 2001.

This law seems more clear than most of the laws Congress passes.

The article further disagrees with AG Holder’s statement that Padillo’s arrest was not on a battlefield, he is forgetting that the war on terror has an infinite battlefield:

“Holder was dangerously wrong. Put aside that no war comes with an expiration date. It was not the Bush administration that extended the battlefield “throughout the world.” The standards in question were set by al-Qaeda. That is no doubt why Congress prudently did not attempt to circumscribe the commander-in-chief’s discretion to determine what the battlefield is. We don’t want terrorists to have any sanctuaries.

“This is also precisely why President Obama has “imported wholesale” into his command the traditional concept that a battlefield can be any location where the enemy can conduct operations — which, in al-Qaeda’s case, is any place where its operatives are found. That is the risk a terrorist runs — being an unlawful combatant who flouts laws of war designed to protect civilians, the terrorist must be denied the privileges that reward lawful combatants for conducting warfare honorably.”

If we are going to fight a war on terror, we need to revisit our concept of war.  Hopefully, the Obama administration is beginning to do this.