Reprinted here, with light revisions, is a blog post of mine from June of 2002 on the legal treatment of Islamic terror suspects.
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There has to be a better way of dealing with suspected and accused terrorists than the graceless and inconsistent method hitherto chosen by the Bush administration. Thus far, the pattern established by the Justice Department does not inspire much confidence, and suggests an ad hoc approach propelled more by a desire for successful prosecution than by a deeper desire for justice. The political atmosphere being what it is, one can perhaps sympathize with this, but consider: Josè Padilla*, the suspected “dirty-bomber,” is an American citizen, yet he is being detained by the military, incommunicado, without being formally accused of a crime; meanwhile, Zacarias Moussaoui**, the accused “twentieth hijacker,” and Richard Reid***, the accused shoe bomber, are both non-citizens, yet they are being tried in public court, with full access to a professional defense. One need not be a committed civil-liberties ideologist to perceive grave peril in the precedents set therein.
I fully understand and endorse the reasoning behind treating “unlawful combatants” in war as something else entirely than regular domestic criminals or prisoners of war — something far more dangerous and less entitled to constitutional rights. But several serious problems present themselves immediately, and cry out for assiduous consideration: (1) There has been no formal declaration of war by Congress, which declaration would have automatically initiated the machinery, available in both the Constitution itself and in legal precedents, to accommodate our judicial institutions, at least in part, to the reality of war. The failure of the administration to ask Congress for such a declaration, which it surely would have received in overwhelming if not unanimous votes, was in my view one of its first mistakes. The declaration need not have included anything specific about the enemy; it need only have observed the obvious: that a state of war exists between America and those who attacked her. That simple if unorthodox legislative statement would have struck a mighty blow for political, moral and legal clarity — a clarity which certainly existed already in substance, but was never authenticated in republican form.
(2) The way in which the administration chose to propound and apply its military tribunal policy went a long way to undermining the legal rationale for the tribunals themselves. First in making a categorical distinction between citizen and non-citizen, and then in recklessly abandoning that very distinction in the first high-profile cases (Moussaoui and John Walker Lind****, the American Taliban), the administration tacitly cultivated the pernicious idea that the tribunals exist primarily, even solely, so as to increase the likelihood of a guilty verdict. In point of principle, the use of tribunals should have precisely nothing to do with prosecutorial success rates; it should have everything to do with security of sensitive evidence, protection of witnesses, etc. The gravest and most insidious charge among the many leveled against military tribunals has undoubtedly been the assumption underlying much of the discussion that they will be inherently more likely to return guilty verdicts; that is, that they will be in some systematic way less conducive to a fair, rigorous defense. This assumption constitutes a complacent slander of the honor of the men and women of the United States military, who will make up these proposed tribunals; and anyone who holds this view has an obligation to explain why it is he thinks that military personnel will be intrinsically less scrupulous and fair in carrying out legal proceedings than civilian judges and juries. Sadly, in its unwillingness to apply the military tribunal to all terrorism, that is, all war-related cases, the administration has implicitly endorsed a calumny against the military, and thereby eroded, perhaps irretrievably, the moral authority of its proposed military tribunals.
(3) Even had it acted more prudently and with greater principled uniformity in propounding a military tribunal policy, I still think the administration’s policy would have proven inadequate. Because, lawful and serviceable though they are, I do not think the military tribunals, so constituted as they are today in legal precedent, represent a sufficiently robust, sophisticated and plenary body of legal doctrine and procedure to encompass what they must in this great conflict into which we were hurled on September 11. The tribunals are a thin, skeletal outline, incapable on their own of bearing the burden of a daunting task of indefinite scope and duration. This is where Congress, acting independently of the executive, must assert itself boldly and unambiguously, as the rightful and supreme legislative authority in America. Thomas Sowell made this point in a characteristically sharp column some weeks ago. If ever a dilemma cried out for legislative action, it is this. What we need is the machinery and institutions, fundamentally unprecedented, for dealing with a criminal conspiracy which transcends national borders, threatens mortally the survival of civilization, and presents irreconcilable problems for the traditional legal system. What we need is a kind of ancillary legal system that secures for defendants the spirit of American jurisprudence but does not simultaneously lay bare in public the capabilities and vulnerabilities of America’s resistance to those who plot her incineration. Difficult and painstaking though it will surely be, Congress is ideal for this kind of work; and indeed it is the only institution possessed of the necessary authority for creating this new organon of jurisprudence.
Unfortunately, Congress has been as yet unequal to the task; has shied from even approaching this solemn responsibility while favoring a host of other deeply partisan and trivial activities; and has generally reflected the impoverishment of our political discourse at a time when richness, subtlety and vigor is required. It should also be noted that this impoverishment is succored immensely by the degraded ideological fatuity of the major human rights and civil liberties lobbies, whose reflexive, intemperate opposition to virtually every effort by the administration to address the unique problematics of international terrorism represents a particularly debilitating triumph of abstraction over practical sobriety. If the American Civil Liberties Union, for example, cannot recognize the plain fact that unabbreviated constitutional rights cannot and should not be extended to those waging war by treachery, with the purpose of overthrowing the society characterized by these rights, and the code of law which secures them; then a great organization has well and truly succumbed to the syndrome of ideology, and its influence must dwindle for our civilization to endure.
* Padilla, after more than three years in limbo as an enemy combatant, was eventually transferred to civilian court, convicted in August 2007 of conspiracy to wage overseas Jihad, and sentenced in 2008 to nearly 20 years in federal prison.
** Moussaoui was convicted in 2006 of a variety of terror charges, including conspiracy to hijack planes, and was sentenced to life in prison with the possibility of parole.
*** Reid pleaded guilty to numerous terror charges, was convicted in 2002, and sentenced in 2003 to life without parole.
**** Lindh pleaded guilty to terror-related crimes, including service in the Taliban army, and was sentenced to 20-years in prison in 2002.