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Questionable Legal Analysis from the Times

Keep the little old lady out of it.

8:12 AM, Mar 30, 2010 • By ADAM J. WHITE
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Charlie Savage's byline is familiar to those of us who closely follow coverage of legal issues governing and arising from the global war on terror.  His latest New York Times report nominally focuses on the Obama administration's deliberations regarding tough issues of law and war, but its most controversial allegation actually pertains to the Bush administration.  According to Savage:

In the years after the 9/11 attacks, Mr. Bush claimed virtually unlimited power as commander in chief to detain those he deemed a threat — a view so boundless that his Justice Department once told a court that it was within the president’s lawful discretion to imprison as an enemy combatant even a “little old lady in Switzerland” who had unwittingly donated to Al Qaeda.

That would have been quite a controversial argument, if the government had made it.  But, in fact, the government did no such thing.

Savage's description mischaracterizes an exchange between then-Principal Deputy Associate Attorney General Brian Boyle and Judge Joyce Hens Green of the U.S. District Court for the District of Columbia, which took place on December 1, 2004.  The transcript is not available in electronic format, but a brief filed by attorneys for Guantanamo detainees in December 2004 sets forth the exchange in full (at pages 9-10).

Judge Green asked the attorney whether a "little old lady in Switzerland" would qualify as an "enemy combatant" if she "writes checks to what she thinks is a charity that helps orphans in Afghanistan but really is a front to finance al-Qaeda activities."  Far from answering that unwitting donations would empower the government (in Savage's words) to "imprison [her] as an enemy combatant," the government attorney responded that the military would determine whether or not to believe her story that she was, in fact, an unwitting supporter of al Qaeda.

The attorney's response, read as a whole, makes clear that he was not arguing in favor of designating innocent European grannies as "enemy combatants."  And even if his responses to Judge Green's persistent questions were unclear, all ambiguity was eliminated the next day, when the same attorney answered the questions of another federal judge in a related case.  This exchange is reprinted in the same part of the aforementioned brief:

What I said was in the fog that is often the case in these situations that it would be up to the military applying its process and in going through its classification function to determine whom to believe. If in fact this woman, there was some reason to believe this woman did know that she was financing a terrorist operation, that would certainly merit a detention both theoretically and practically and certainly the fact as we know that it is basic doctrine of al-Qaeda for its operatives to have plausible cover stories in reserve if they are captured to present their conduct as innocent is all the more reason that that kind of judgment needs to be committed to our military intelligence experts and so forth.

The government also addressed this issue in a brief filed in the same case on October 24, 2004, weeks before the oral arguments. In responding to the the detainees' argument that the applicable definition of "enemy combatant" was too broad (i.e., the issue pressed by Judge Green), the government described "enemy combatants" in terms of persons carrying weapons at the time of capture; saboteurs; carriers of non-traditional weapons of mass destruction; or other persons directly tied to the militant forces, including clerks, laborers, and civilians with "immediate connection" to the forces.  The government's entire discussion of "enemy combatants" was limited to those shown to have directly or intentionally supported militant forces -- not hapless grannies.

In short, the government never argued that a little old lady's unwitting donations to an al Qaeda front group would entitle her to enemy combatant status.  It argued only that if such a case arose where there was actual evidence disputing the donor's account, then the military must have the discretion to take the donor into custody, to determine the truth or falsity of her account, and -- if she was later proven to have lied -- to assign her to appropriate status.  Savage's pithy account may comport with liberal conventional wisdom, but it is utter myth.

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