Skip to main content

Who is our enemy?

By Will Cain, CNN Contributor, and Andrew C. McCarthy, Special to CNN
April 26, 2013 -- Updated 0945 GMT (1745 HKT)
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
July 24, 2014 -- Updated 1349 GMT (2149 HKT)
Patrick Cronin and Kelley Sayler say the world is seeing nonstate groups such as Ukraine's rebels wielding more power to do harm than ever before
July 23, 2014 -- Updated 2205 GMT (0605 HKT)
Ukraine ambassador Olexander Motsyk places blame for the MH17 tragedy squarely at the door of Russia
July 24, 2014 -- Updated 1142 GMT (1942 HKT)
Mark Kramer says Russia and its proxies have a history of shooting down civilian aircraft, often with few repercussions
July 24, 2014 -- Updated 1701 GMT (0101 HKT)
Les Abend says, with rockets flying over Tel Aviv and missiles shooting down MH17 over Ukraine, a commercial pilot's pre-flight checklist just got much more complicated
July 24, 2014 -- Updated 1317 GMT (2117 HKT)
Mark Kramer says Russia and its proxies have a history of shooting down civilian aircraft, often with few repercussions
July 24, 2014 -- Updated 1637 GMT (0037 HKT)
Gerard Jacobs says grieving families and nations need the comfort of traditional rituals to honor the remains of loved ones, particularly in a mass disaster
July 24, 2014 -- Updated 1413 GMT (2213 HKT)
The idea is difficult to stomach, but John Sutter writes that eating dog is morally equivalent to eating pig, another intelligent animal. If Americans oppose it, they should question their own eating habits as well.
July 23, 2014 -- Updated 1630 GMT (0030 HKT)
Bill van Esveld says under the laws of war, civilians who do not join in the fight are always to be protected. An International Criminal Court could rule on whether Israeli airstrikes and Hamas rocketing are war crimes.
July 23, 2014 -- Updated 1205 GMT (2005 HKT)
LZ Granderson says Ronald Reagan went horseback riding and took a vacation after the Korean Air Crash of 1983. So why does the GOP keep airbrushing history to bash Obama?
July 23, 2014 -- Updated 1338 GMT (2138 HKT)
Aaron Miller says Kerry needs the cooperation of Hamas, Israel, Egypt and others if he is to succeed in his peacemaking efforts
July 23, 2014 -- Updated 1251 GMT (2051 HKT)
Errol Louis says the tragic death of Eric Garner at the hands of the NYPD has its roots in the "broken windows" police strategy from the crime-ridden '80s.
July 23, 2014 -- Updated 1408 GMT (2208 HKT)
Gordon Brown says the kidnapped Nigerian girls have been in captivity for 100 days, but the world has not forgotten them.
July 23, 2014 -- Updated 1127 GMT (1927 HKT)
Ruben Navarrette says Texas Gov. Rick Perry is right to immediately send 1,000 National Guard troops to the U.S.-Mexico border in response to the border children crisis.
July 22, 2014 -- Updated 1356 GMT (2156 HKT)
Ukraine's president says the downing of MH17 was a terrorist act, but Richard Barrett says it would be considered terrorism only if it was intentional
July 22, 2014 -- Updated 2015 GMT (0415 HKT)
Robert McIntyre says the loophole that lets firms avoid taxes should be closed
July 22, 2014 -- Updated 1535 GMT (2335 HKT)
Jeronimo Saldana and Malik Burnett say Gov. Perry's plan to send National Guard to the border won't solve the escalating immigration problem.
July 22, 2014 -- Updated 1742 GMT (0142 HKT)
Sally Kohn: The world's fish and waters are polluted and under threat. Be very careful what fish you eat
July 22, 2014 -- Updated 1242 GMT (2042 HKT)
Les Abend says threat information that pilots respond to is only as good as the intelligence from air traffic controllers. And none of it is a match for a radar-guided missile
July 21, 2014 -- Updated 1235 GMT (2035 HKT)
Frida Ghitis: Anger over MH17 is growing against pro-Russia separatists. It's time for the Dutch government to lead, she writes
July 21, 2014 -- Updated 1227 GMT (2027 HKT)
Julian Zelizer says President Obama called inequality the "defining challenge" of our time but hasn't followed through.
July 21, 2014 -- Updated 1157 GMT (1957 HKT)
Gene Seymour says the 'Rockford Files' actor worked the persona of the principled coward, charming audiences on big and small screen for generations
July 21, 2014 -- Updated 1417 GMT (2217 HKT)
Daniel Treisman says that when the Russian leader tied his fate to the Ukraine separatists, he set the stage for his current risky predicament
July 18, 2014 -- Updated 1642 GMT (0042 HKT)
Andrew Kuchins says urgent diplomacy -- not sanctions -- is needed to de-escalate the conflict in Ukraine that helped lead to the downing of an airliner there.
July 19, 2014 -- Updated 0150 GMT (0950 HKT)
Jim Hall and Peter Goelz say there should be an immediate and thorough investigation into what happened to MH17.
July 18, 2014 -- Updated 1507 GMT (2307 HKT)
Pilot Bill Palmer says main defense commercial jets have against missiles is to avoid flying over conflict areas.
July 20, 2014 -- Updated 1755 GMT (0155 HKT)
Valerie Jarrett says that working women should not be discriminated against because they are pregnant.
July 21, 2014 -- Updated 1953 GMT (0353 HKT)
David Wheeler says the next time you get a difficult customer representative, think about recording the call.
July 18, 2014 -- Updated 1933 GMT (0333 HKT)
Newt Gingrich says the more dangerous the world becomes the more Obama hides in a fantasy world.
July 18, 2014 -- Updated 1011 GMT (1811 HKT)
Michael Desch: It's hard to see why anyone, including Russia and its local allies, would have intentionally targeted the Malaysian Airlines flight
July 17, 2014 -- Updated 1914 GMT (0314 HKT)
LZ Granderson says we must remember our visceral horror at the news of children killed in an airstrike on a Gaza beach next time our politicians talk of war
July 17, 2014 -- Updated 1206 GMT (2006 HKT)
Sally Kohn says now the House GOP wants to sue Obama for not implementing a law fast enough, a law they voted down 50 times, all reason has left the room.
July 17, 2014 -- Updated 1214 GMT (2014 HKT)
A street sign for Wall Street
Sens. Elizabeth Warren, John McCain and others want to scale back the "too big to fail" banks that put us at risk of another financial collapse.
July 17, 2014 -- Updated 2016 GMT (0416 HKT)
Newt Gingrich writes an open letter to Robert McDonald, the nominee to head the Veterans Administration.
July 18, 2014 -- Updated 1601 GMT (0001 HKT)
Paul Begala says Dick Cheney has caused an inordinate amount of damage yet continues in a relentless effort to revise the history of his failures.
July 18, 2014 -- Updated 1404 GMT (2204 HKT)
Kids who takes cell phones to bed are not sleeping, says Mel Robbins. Make them park their phones with the parents at night.
July 24, 2014 -- Updated 1625 GMT (0025 HKT)
Buzz Aldrin looked at planet Earth as he stood on talcum-like lunar dust 45 years ago. He thinks the next frontier should be Mars.
July 16, 2014 -- Updated 1804 GMT (0204 HKT)
Mark Zeller never thought my Afghan translator would save his life by killing two Taliban fighters who were about to kill him. The Taliban retaliated by placing him on the top of its kill list.
July 17, 2014 -- Updated 1518 GMT (2318 HKT)
Jeff Yang says an all-white cast of Asian characters in cartoonish costumes is racially offensive.
July 17, 2014 -- Updated 0124 GMT (0924 HKT)
Gary Ginsberg says the late John F. Kennedy Jr.'s reaction to an event in 1995 summed up his character
July 16, 2014 -- Updated 1641 GMT (0041 HKT)
Meg Urry says most falling space debris lands on the planet harmlessly and with no witnesses.
ADVERTISEMENT