The Obama Administration's decision to try at least some terrorists in federal court as common criminals is controversial. This policy has been applied to Umar Farouk Abdulmutallab, a Nigerian citizen apprehended in the United States, as well as Khalid Sheikh Mohammed and others, non-U.S. citizens captured in foreign countries. Other terrorists have also been tried, successfully, in federal courts during previous administrations. These include Richard Reid, a British citizen apprehended in the U.S.; John Walker Lindh, an American citizen captured in Afghanistan; Omar Abdel-Rahman, an Egyptian citizen apprehended in the U.S.; Jose Padilla, an American citizen apprehended in the U.S.; and others of mixed citizenship and circumstances of capture or apprehension.
There are three alternatives to trial in normal civilian courts. They include trial by military commissions, return of prisoners to their home countries, or simply keeping them locked up without a trial until the war is considered to be over. The last two alternatives can't be taken seriously. The Bush Administration released terrorists to other countries, and in many cases we met them on the battlefield again. That includes prisoners released to Yemen, and the Obama Administration has wisely decided not to release more prisoners to that nation. Keeping them in prison until the war is over is obviously a problem because we can't even agree that we're in a war, and there's little likelihood of it ending any time within the foreseeable future.
Practically, that leaves us with the choices of trying captured or apprehended terrorists either by military commissions or by civilian courts. Military commissions (or tribunals) have been used throughout history with little serious controversy. In recent years, however, they've been under constant attack, and in 2006 the Supreme Court ruled that military commissions, as then constituted, were unconstitutional. Since then, Congress has passed the Military Commissions Act, making them legally acceptable. Of course, the usual suspects still object to military commissions. In any case, only a few terrorist prisoners have been tried by military commissions, including a handful under the current Administration.
At this point, we've twisted ourselves into an absurd, irrational situation in terms of how we deal with terrorists. While it seems obvious to most people that we're in a war, there are still those who think we aren't. Meanwhile, despite the navel-gazing of some on the question of what a war is, we continue to fight against an unrelenting foe who will attack us whenever and wherever possible. We don't have a choice. When we can find and fix a terrorist in Iraq, Afghanistan, Pakistan, probably Yemen, and maybe other nations that tolerate terrorists, we kill them with a missile or otherwise, sometimes taking out innocents near them. No Miranda warnings, no probably cause, no due process, no right to counsel. If we capture them, however, things get weird. A Justice Department official has recently said they should be read their rights on the battlefield. They may be held for years before we can figure out how to deal with them, and then they may be released or tried by a military commission or a federal court, settings that involve significantly different rights, procedures, and risks.
One could be forgiven for concluding that we've lost our collective mind. This untenable situation has been caused by ideological divides within our country. Extremists of the far right would prefer to see them interrogated thoroughly, however it has to be done, then shot. Extremists of the far left would prefer for them to be treated like American citizens who are suspected of having broken a law, entitled to the rights all Americans enjoy. Presumably, if acquitted they would be re-settled in the U.S. at taxpayer expense and put on welfare.
We can't go on like this. We have to ignore extremists on both sides of the question, decide how we're going to proceed, and follow that path consistently. Here's what we should do:
• Continue fighting and killing terrorists in the field. Every effort should be made, as is already the case, to avoid innocent casualties.
• Non-U.S. citizen terrorists captured overseas or apprehended in the U.S. should be declared to be unlawful enemy combatants under the legal and consitutional authority of the President. They are entitled to treatment under Common Article 3 of the Geneva Conventions and should be tried by military commissions. They should be interrogated in a lawful manner without Miranda warnings or the right to counsel.
• U.S. citizens, wherever captured or apprehended, should be handled on a case-by-case basis and either tried by a civilian court or declared to be enemy combatants and tried by a military commission.
• Prisoners who are found not guilty or determined not to be terrorists and not to be a threat otherwise should be returned to the country of their citizenship.
• All of these procedures should be carried out in a predictable and timely manner.
• Finally, the Guantanamo prison should remain open. It already provides prisoners better and more humane treatment than most federal and state prisoners receive in the U.S., and moving the operation to a Guantanamo-like prison in the U.S. makes no substantive difference and simply wastes taxpayer dollars.
All of this may seem obvious, and it is, but during the past two administrations the government hasn't seemed capable of getting its act together. Perhaps I'm just an old soldier with an overly simple view of the world, but here's the way I see it: My country and its citizens are under sustained, long-term attack by a group of people who have declared war against us and sworn to destroy us. That's a war. Those who are attacking us are enemies and combatants, and they're acting unlawfully, given that they aren't part of a duly constituted military force of a legitimate nation. When we capture those who aren't killed, they should be treated as the unlawful enemy combatants they are. Once we wrap our collective mind around those facts, the rest is easy.
For additional information:
Guantanamo inmates no longer "enemy combatants", Reuters
Geneva Convention Common Article 3, CDI
Terrorists Captured on Battlefield Have Constitutional Rights, CNS
Do Illegal Aliens Have Constitutional Rights?, About.com
Enemy Combatants, CFR
Fact Sheet: Military Commissions, DOD
Guantanamo military commission, Wikipedia