Skip to main content

Who is our enemy?

By Will Cain, CNN Contributor, and Andrew C. McCarthy, Special to CNN
updated 5:45 AM EDT, Fri April 26, 2013
Bombings at the Boston Marathon on Monday, April 15, followed by a manhunt kept the Boston area reeling until the surviving suspect was captured on Friday, April 19. Pictured, the second explosion goes off near the marathon finish line on Monday while smoke from the first bomb still hangs in the air. Here's a look at how the week unfolded: Bombings at the Boston Marathon on Monday, April 15, followed by a manhunt kept the Boston area reeling until the surviving suspect was captured on Friday, April 19. Pictured, the second explosion goes off near the marathon finish line on Monday while smoke from the first bomb still hangs in the air. Here's a look at how the week unfolded:
HIDE CAPTION
Boston bombings: A week in photos
The week in Boston in photos
The week in Boston in photos
The week in Boston in photos
The week in Boston in photos
The week in Boston in photos
The week in Boston in photos
The week in Boston in photos
The week in Boston in photos
The week in Boston in photos
The week in Boston in photos
The week in Boston in photos
The week in Boston in photos
The week in Boston in photos
The week in Boston in photos
The week in Boston in photos
The week in Boston in photos
The week in Boston in photos
The week in Boston in photos
The week in Boston in photos
The week in Boston in photos
The week in Boston in photos
The week in Boston in photos
<<
<
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
>
>>
STORY HIGHLIGHTS
  • Will Cain and Andrew McCarthy debate who the U.S. is fighting in the war on terror
  • McCarthy: To be an enemy combatant one has to be part of the enemy
  • Cain: Distinction between al Qaeda inspired and al Qaeda connected is becoming murky
  • McCarthy: Military commissions are done to protect our intel files on the enemy

Editor's note: Will Cain is a CNN contributor and co-host of Real News at The Blaze. Andrew C. McCarthy, a former federal prosecutor, is a contributor to National Review and author of "Willful Blindness: Memoir of the Jihad." The following is an e-mail exchange/debate between Cain and McCarthy.

(CNN) -- Will Cain: Andy, who are we fighting in the war on terror? I don't mean to turn this into a freshman Political Science 101 question, but this is a pretty important issue. The answer to that question should protect us not only from terrorists, but also from the government depriving us of constitutional rights.

Sens. Lindsay Graham, John McCain and Kelly Ayotte and Rep. Peter King are all raising hell over the fact that Dzhokhar Tsarnaev -- one the of suspects in the Boston Marathon bombing -- wasn't designated an "enemy combatant" and held in military detention for interrogation. But I see nothing in the Authorization for Use of Military Force or the National Defense Authorization Act that takes away rights afforded to citizens (Dzhokhar is a U.S. citizen) by the Constitution.

Do you disagree?

Andy McCarthy: While I am not ready to go quite that far, designating Dzhokhar Tsarnaev as an enemy combatant would be very problematic. This is why I have repeatedly argued in the past few years that the 2001 AUMF is in need of an overhaul that reflects the current reality of the war on terror.

To be an enemy combatant one has to be part of the enemy. Under the AUMF, the enemy that Congress has authorized combat operations against includes only people, organizations or nations that carried out the 9/11 attacks and those who harbored them. This understates the actual enemy in time and scope, but the laws of war apply only to what Congress has authorized.

The reason I cannot go as far as you do is that we do not know enough yet. Al Qaeda, which is clearly covered by the AUMF, has operational ties to jihadist groups in Chechnya and Dagestan. It is conceivable that the Tsarnaevs -- particularly Tamerlan -- is connected with these groups and that they are complicit in the events in Boston. I am not arguing that this is likely; it is, however, plausible. Thus, I think that in wartime, with Congress having authorized military operations and with the interest in national security outweighing an individual detainee's interest in heightened due process, the executive branch would have been entitled to a short but reasonable period of military detention while it sorted out whether there is a meaningful connection to the enemy Congress has identified. But if there is no such connection, there is no legal authority to designate Dzhokhar Tsarnaev as an enemy combatant.

Become a fan of CNNOpinion
Stay up to date on the latest opinion, analysis and conversations through social media. Join us at Facebook/CNNOpinion and follow us @CNNOpinion on Twitter. We welcome your ideas and comments.



Cain: So, just to clarify. The AUMF authorizes combat operations 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."

The NDAA expanded the enemy list from those involved in 9/11 to include "al Qaeda" and "associated forces." So:

1. We know this can include American citizens. There's a long history of American citizens joining the enemy side from German sabateours in WWII to Yasser Esam Hamdi.

2. It's unclear if it includes American citizens on American soil like Jose Padilla.

No 'enemy combatant' label for suspect
Trying suspect as enemy combatant
Did the Boston suspects have help?
Friends of bombing suspects questioned

3. But this is all predicated on the offender being connected to the "enemy."

You make two interesting points. One, it seems to me that holding people in detention for a "reasonable" amount of time because of "plausible" connections to al Qaeda (the enemy) until we know more is incredibly gray and open-ended. This is exactly what Graham, McCain, King and Ayotte are requesting.

What is a plausible connection? Anyone who has professed hatred of America? Any radical Islamist? Anyone who visits countries with an al Qaeda presence? And what is a reasonable amount of time? I'm not comfortable with these blurry lines when talking about depriving American citizens of Constitutional rights.

McCarthy: If that is what the senators and Rep. King are arguing, I think they're right. Listening to some of the commentary, my understanding was that some are saying it is permissible to designate someone an enemy combatant, irrespective of what Congress has authorized, simply because he has participated in a horrific act of terrorism.

To the contrary, the designation has to fit Congress' authorization. If these members of Congress are acknowledging that, then I'm with them.

By "plausible," I am not talking about six degrees of separation, or that al Qaeda reads in the paper about an attack it had nothing to do with and starts the Allahu Akbar! celebration. I am talking about a meaningful, operational connection -- one that, if you proved it in court, would be enough to show conspiracy or aiding and abetting the enemy. For example, an al Qaeda affiliate provides person A with paramilitary training and sends him back to America with the understanding that he will hook up with person B and they will use the training to commit terrorist acts.

Let's bear something else in mind. It's true that terms like "reasonable" time and "plausible" connection can sound like weasel words that would green-light consigning an American to indefinite detention on gossamer grounds. But there is a context here. Tsarnaev would be represented by counsel who could seek a writ of habeas corpus from the federal courts if what I envision as a reasonably brief period of temporary detention turned into something abusive. These safeguards were in place in the case of Padilla, whom you mention, and I think it provides confidence that the government can be kept honest.

Cain: I think they are asking for military detention as a kind of fact-finding mission to see if there are any connections to al Qaeda. The plausible connections you're talking about would be something discovered after detention, during interrogation. But what's justifying that detention, interrogation and fact finding in this case appears to be admission by Dzhokhar that he and his brother were influenced by radical Islam.

I'm just not comfortable with the government's authority in these gray areas. Which brings me to the second point I wanted to explore. It seems terrorism has evolved into this gray area. The distinction between al Qaeda inspired and al Qaeda connected is becoming less meaningful in the real world. I don't doubt that the war on terror, at its core, is a war on ideology. But I have no idea how you draft a limiting war document on an ideology that still constrains the areas where the state can set aside the constitutional protections. You said you would update the AUMF. How would you do that?

McCarthy: Well, I don't think it's appropriate to do a fact-finding mission just because one is curious. Detaining an American as an enemy combatant, even temporarily as a suspected enemy combatant, is a serious matter. It should not be done unless there are circumstances (e.g., connection of both Tamerlan and al Qaeda to jihadists in Chechnya and Dagestan) that give rise to a plausible suspicion. And, particularly under the AUMF as it exists, a connection to "radical Islamism" is not enough, nor even is a connection to violent jihadism. There has to be an operational connection to the enemy Congress has identified.

The distinction between "inspired" and "connected" is significant. The main reason for doing military commissions instead of civilian trials is to protect from disclosure our intel files on the enemy. If a jihadist is connected to al Qaeda, civilian discovery rules make this a real danger. If a jihadist is merely inspired by al Qaeda, he has no entitlement to such discovery, and thus, the case for consigning him to the military justice system is not nearly as strong.

As for updating the AUMF, it should acknowledge that our enemies are a loosely knit network of violent jihadist groups and their state sponsors, all of whom are animated by Islamic supremacism -- a mainstream interpretation of Islam, but by no means the only interpretation. Congress should specify all the currently known jihadist groups that fit this category and concretely outline the type of collusion with them that would render a person, organization or government part of the enemy.

Cain: So there is the answer to the core questions: Who are we fighting? Who is the enemy?

Your suggestion is to update the AUMF to specifically outline the radical jihadi groups who can be treated as "the enemy" in the war on terror. This, I think, is a step forward in acknowledging our real world threat, but also -- ironically -- limiting the state's power. By simultaneously making a more exhaustive but specific list of enemies, this would hopefully lead us away from the government being able to operate in the "gray areas" that make me nervous.

This would not (from what we know right now) allow al Qaeda inspired terrorists like Tsarnaev or Faisal Shahzad to be designated as "enemy combatants" and denied constitutional protections. I fear these types of terrorists are the new, rising, immediate threat.

Follow us on Twitter @CNNOpinion.

Join us on Facebook/CNNOpinion.

The opinions expressed in this commentary are solely those of Will Cain and Andrew McCarthy.

ADVERTISEMENT
Part of complete coverage on
updated 5:01 PM EDT, Wed October 22, 2014
Paul Callan says the grand jury is the right process to use to decide if charges should be brought against the police officer
updated 12:19 PM EDT, Thu October 23, 2014
Theresa Brown says the Ebola crisis brought nurses into the national conversation on health care. They need to stay there.
updated 6:35 PM EDT, Tue October 21, 2014
Patrick Hornbeck says don't buy the hype: The arguments the Vatican used in its interim report would have virtually guaranteed that same-sex couples remained second class citizens
updated 9:36 AM EDT, Fri October 24, 2014
Paul Begala says Iowa's U.S. Senate candidate, Joni Ernst, told NRA she has right to use gun to defend herself--even from the government. But shooting at officials is not what the Founders had in mind
updated 6:08 PM EDT, Thu October 23, 2014
John Sutter: Why are we so surprised the head of a major international corporation learned another language?
updated 5:54 PM EDT, Thu October 23, 2014
Jason Johnson says Ferguson isn't a downtrodden community rising up against the white oppressor, but it is looking for justice
updated 12:21 PM EDT, Fri October 24, 2014
Sally Kohn says a video of little girls dressed as princesses using the F-word very loudly to condemn sexism is provocative. But is it exploitative?
updated 4:06 PM EDT, Tue October 21, 2014
Timothy Stanley says Lewinsky is shamelessly playing the victim in her affair with Bill Clinton, humiliating Hillary Clinton again and aiding her critics
updated 10:14 AM EDT, Thu October 23, 2014
Imagine being rescued from modern slavery, only to be charged with a crime, writes John Sutter
updated 12:00 PM EDT, Tue October 21, 2014
Tidal flooding used to be a relatively rare occurrence along the East Coast. Not anymore, write Melanie Fitzpatrick and Erika Spanger-Siegfried.
updated 7:35 AM EDT, Tue October 21, 2014
Carol Costello says activists, writers, politicians have begun discussing their abortions. But will that new approach make a difference on an old battleground?
updated 9:12 AM EDT, Tue October 21, 2014
Sigrid Fry-Revere says the National Organ Transplant Act has caused more Americans to die waiting for an organ than died in both World Wars, Korea, Vietnam, Afghanistan and Iraq
updated 2:51 PM EDT, Tue October 21, 2014
Crystal Wright says racist remarks like those made by black Republican actress Stacey Dash do nothing to get blacks to join the GOP
updated 6:07 PM EDT, Tue October 21, 2014
Mel Robbins says by telling her story, Monica Lewinsky offers a lesson in confronting humiliating mistakes while keeping her head held high
updated 9:29 AM EDT, Mon October 20, 2014
Cornell Belcher says the story of the "tea party wave" in 2010 was bogus; it was an election determined by ebbing Democratic turnout
updated 4:12 PM EDT, Mon October 20, 2014
Les Abend says pilots want protocols, preparation and checklists for all contingencies; at the moment, controlling a deadly disease is out of their comfort zone
updated 11:36 PM EDT, Sun October 19, 2014
David Weinberger says an online controversy that snowballed from a misogynist attack by gamers into a culture war is a preview of the way news is handled in a world of hashtag-fueled scandal
updated 8:23 AM EDT, Mon October 20, 2014
Julian Zelizer says Paul Krugman makes some good points in his defense of President Obama but is premature in calling him one of the most successful presidents.
updated 10:21 PM EDT, Sun October 19, 2014
Conservatives can't bash and slash government and then suddenly act surprised if government isn't there when we need it, writes Sally Kohn
updated 8:05 AM EDT, Wed October 22, 2014
ISIS is looking to take over a good chunk of the Middle East -- if not the entire Muslim world, write Peter Bergen and Emily Schneider.
updated 9:00 AM EDT, Mon October 20, 2014
The world's response to Ebola is its own sort of tragedy, writes John Sutter
updated 4:33 PM EDT, Fri October 17, 2014
Hidden away in Russian orphanages are thousands of children with disabilities who aren't orphans, whose harmful treatment has long been hidden from public view, writes Andrea Mazzarino
updated 1:22 PM EDT, Sat October 18, 2014
When you hear "trick or treat" this year, think "nudge," writes John Bare
updated 12:42 AM EDT, Sat October 18, 2014
The more than 200 kidnapped Nigerian schoolgirls have become pawns in a larger drama, writes Richard Joseph.
updated 9:45 AM EDT, Fri October 17, 2014
Peggy Drexler said Amal Alamuddin was accused of buying into the patriarchy when she changed her name to Clooney. But that was her choice.
updated 4:43 PM EDT, Thu October 16, 2014
Ford Vox says the CDC's Thomas Frieden is a good man with a stellar resume who has shown he lacks the unique talents and vision needed to confront the Ebola crisis
updated 4:58 AM EDT, Sat October 18, 2014
How can such a numerically small force as ISIS take control of vast swathes of Syria and Iraq?
updated 9:42 AM EDT, Fri October 17, 2014
How big a threat do foreign fighters in Syria and Iraq pose to the West? It's a question that has been much on the mind of policymakers and commentators.
updated 8:21 AM EDT, Fri October 17, 2014
More than a quarter-million American women served honorably in the Iraq and Afghanistan wars. Now they are home, we have an obligation to help them transition back to civilian life.
updated 4:27 PM EDT, Thu October 16, 2014
Paul Begala says Rick Scott's deeply weird refusal to begin a debate because rival Charlie Crist had a fan under his podium spells disaster for the Florida governor--delighting Crist
updated 12:07 AM EDT, Thu October 16, 2014
The longer we wait to engage on Ebola, the more limited our options will become, says Marco Rubio.
updated 7:53 AM EDT, Wed October 15, 2014
Democratic candidates who run from President Obama in red states where he is unpopular are making a big mistake, says Donna Brazile
updated 12:29 AM EDT, Thu October 16, 2014
At some 7 billion people, the world can sometimes seem like a crowded place. But if the latest estimates are to be believed, then in less than a century it is going to feel even more so -- about 50% more crowded, says Evan Fraser
updated 12:53 PM EDT, Mon October 20, 2014
Paul Callan says the Ebola situation is pointing up the need for better leadership
updated 6:45 PM EDT, Wed October 15, 2014
Nurses are the unsung heroes of the Ebola outbreak. Yet, there are troubling signs we're failing them, says John Sutter
updated 1:00 PM EDT, Wed October 15, 2014
Dean Obeidallah says it's a mistake to give up a business name you've invested energy in, just because of a new terrorist group
updated 7:01 PM EDT, Wed October 15, 2014
Fear of Ebola is contagious, writes Mel Robbins; but it's time to put the disease in perspective
updated 1:44 PM EDT, Tue October 14, 2014
Oliver Kershaw says that if Big Tobacco is given monopoly of e-cigarette products, public health will suffer.
updated 9:35 AM EDT, Sat October 18, 2014
Stop thinking your job will make you happy.
updated 10:08 PM EDT, Tue October 14, 2014
Ruben Navarrette says it's time to deal with another scandal involving the Secret Service — one that leads directly into the White House.
updated 7:25 AM EDT, Tue October 14, 2014
Americans who choose to fight for militant groups or support them are young and likely to be active in jihadist social media, says Peter Bergen
updated 9:03 AM EDT, Mon October 13, 2014
Stephanie Coontz says 11 years ago only one state allowed same sex marriage. Soon, some 60% of Americans will live where gays can marry. How did attitudes change so quickly?
updated 4:04 PM EDT, Tue October 14, 2014
Legalizing assisted suicide seems acceptable when focusing on individuals. But such laws would put many at risk of immense harm, writes Marilyn Golden.
updated 9:07 AM EDT, Mon October 13, 2014
Julian Zelizer says the issues are huge, but both parties are wrestling with problems that alienate voters
updated 6:50 PM EDT, Mon October 13, 2014
Mel Robbins says the town's school chief was right to cancel the season, but that's just the beginning of what needs to be done
updated 11:43 AM EDT, Sat October 11, 2014
He didn't discover that the world was round, David Perry writes. So what did he do?
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT