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.
Article comments
— go to most recent comments1 - Ruvy
Nice article. Nice idea.
2 - roger nowosielski
"Those who are attacking us are enemies and combatants, and they're acting unlawfully . . ."
That may be so, they are our enemies. But where does the definition of "unlawfulness" come from? From the old paradigm that only "a duly constituted military force of a legitimate nation" counts as lawful. And who makes this decision. The US? Our allies? The international community?
According to the latter, darn it, even according to many of us, even some in Congress, the status of the conflict in Vietnam, our continuous presence in Iraq, even our engagement in Afghanistan, may have been regarded as unlawful? So what makes all these operations and wars lawful? The executive's decision.
It would seem you have nothing else to back up your assumptions and your hard-and-fast definitions other than by saying that might is right.
I'm glad, though, that Ruvy agrees with you on the matter of terrorism while conveniently putting aside what he so often expresses as the illegality of America's interference and meddling in the affairs of other nations. So you should derive some measure of comfort from his support.
3 - Dan(Miller)
In his address to the nation, President Obama reminded us
of the challenge we face in protecting our country against a foe that is bent on our destruction. And while passions and politics can often obscure the hard work before us, let's be clear about what this moment demands: We are at war. We are at war against al Qaeda, a far-reaching network of violence and hatred that attacked us on 9/11, that killed nearly 3,000 innocent people, and that is plotting to strike us again. And we will do whatever it takes to defeat them.
So, evidently we are "at war," whatever that means. Somehow, I can't guite get my mind around the notion that President Obama's concept of "war" coincides with mine or, apparently, that of the author. Perhaps President Obama means something akin to the "wars" on poverty and obesity.
Dan(Miller)
4 - Ruvy
I'm glad, though, that Ruvy agrees with you on the matter of terrorism while conveniently putting aside what he so often expresses as the illegality of America's interference and meddling in the affairs of other nations.
These things do work both ways, of course. If the United States wishes to openly intervene in our affairs with her military, I'll happily send American soldiers their "Miranda" rights in whatever lead-encased message delivery system I can effectively use.... The Americans will have to provide the body bags, though. ;o)
5 - Ruvy
Mire! Mire! Sus derechas! [Boom]
6 - roger nowosielski
Well, that's precisely my point, Ruvy.
What I question is his very concept of legality.
7 - Ruvy
Roger,
In war, might is right. Only the winners get to write history. It took over a century for Dembrowski's Mazurka to become the anthem of a nation, and it is only recently that this nation is even independent. The winners of the battle write the histories, Roger, because, more often than not the losers who would have written it are dead.
That is what we in Israel have to insure here as well - against the will of the world - that we, the winners, write the history.
Tom Carter's proposals are simply common sense.
8 - roger nowosielski
It was only a while ago, Dan Miller, that you were dead-set against what you regarded as US unlawful interference and meddling with the affairs of other nations - Honduras being a case in point. And your objection was only to semi-official statements from the administration concerning that situation.
One would suppose, therefore, that you would definitely object, and much more strongly, about the legality of any potential US action in that country to restore the ousted president to power.
Just wondering.
9 - roger nowosielski
I was only questioning the double standard. Namely, everything US does is legal, everything done by "the enemy" is unlawful.
10 - Dan(Miller)
re Comment #8, and assuming that it must have some smidgen of relevance to this thread, I don't seem to recall that the President of the United States has declared war on Honduras, or that the "de facto" President of Honduras has declared war on the United States. I don't even recall any terrorist attacks on the United States by the President's friends.
I my recollections have faded, I sure would like to learn about such things.
Dan(Miller)
11 - Dan(Miller)
Re comment #9, I have this silly notion that attempts by "the enemy" to slaughter large numbers of civilians in and traveling to Detroit to please al Qaeda and its Allah is, in fact, "awful." Ditto other recent incidents.
Hence, even though I don't know exactly what he means, I agree with President Obama that we are "at war" with al Qaeda.
Dan(Miller)
12 - roger nowosielski
How very convenient of you to be playing both ends against the middle. If it serves the US interests, then the US can do no wrong. If, however, US action is in conflict with what Dan Miller perceives as wrong, then so is the US.
And in case you're suffering from reading comprehension, I never suggested that there was any direct US action in the matter of Honduras. I posed it as a hypothetical.
13 - Ruvy
Dan,
Hence, even though I don't know exactly what he means....
If you are not even sure where the guy is born, how can you possibly be sure what he means? The fudge factor with this guy is really large; he and his flunkies produce an awful lot of smelly "fudge" for the rest of the world to "interpret" and the stink goes from the Potomac all the way to the high hills of Samaria....
[Ruvy closes the windows even though it is a warm January evening - only then does he take the clothespin off of his nose.]
14 - roger nowosielski
But that's a minor point, Ruvy (what you're addressing in #13).
For your info, I posted a similar comment to the one in #2 on another thread (see #75), which addressed the very issue of double standard.
Needless to say, it was conveniently ignored for the most part by conservatives and liberals alike - including such "good souls" as Glenn Contrarian and Silas Kain.
Which does make me wonder how blind most of us are to the very possibility that our shit might stink (too).
15 - Dan(Miller)
Alas Ruvy,
There are so very many things I don't understand, including even some of the comments on this thread.
Since I don't even understand the concept of "war," and as a former Army Jag officer I should, it's obviously time for my nap.
Oh -- I hope the clothespin usage did not constitute self inflicted torture. That's probably prohibited.
Dan(Miller)
16 - Dr Dreadful
"The Bush Administration released terrorists to other countries, and in many cases we met them on the battlefield again."
Um... what's wrong with this sentence...?
17 - roger nowosielski
Do you mean ambiguous reference?
Whom did we meet again on the battlefield? The terrorists who have been released or "other countries"?
18 - Dan(Miller)
Doc, re #16
I'll play. What's wrong with it, aside from a remotely possible ambiguity as to whether "them" refers to the terrorists or to the other countries?
Dan(Miller)
19 - roger nowosielski
Well, at least we agree on English grammar, DM.
20 - Dan(Miller)
Roger,
Damn! I was afraid that something like that might some day happen.
Still, it's such a picky point that I'm sure Doc must have had something more important in mind, which he will eventually deign to reveal.
Dan(Miller)
21 - Dr Dreadful
Yes, Roger, exactly. What would a terrorist be doing on a battlefield?
You're either chasing down terrorists, in which case you're policing, or you're engaging an enemy in battle, in which case you're at war. Some people seem to want to have it both ways.
Changing definitions when it suits us just seems a bit sneaky and more than a bit dishonest.
22 - Dan(Miller)
Doc, It's an interesting semantic distinction but one with which President Obama does not appear to agree. Please see my Comment #3, quoting President Obama as saying, We are at war. We are at war against al Qaeda, a far-reaching network of violence and hatred that attacked us on 9/11, that killed nearly 3,000 innocent people, and that is plotting to strike us again and so forth. He seems to have decided that New York and Detroit have become "battlefields." Whether he plans to go forward with the "war" concept, or fall back on the "policing" concept, only time will tell. In any event, we were not "at war" in Korea back in the 1950's; that was only a police action despite a fairly well defined battlefield. So, the terms are strange.
Dan(Miller)
23 - Tom Carter
Dan, as you know, the complexities of international treaties and customs, plus U.S. law, make it difficult to define terms with precision. Often, there's enough slack in all this for people to come up with just about any definition they want. Therefore, the opponents of a specific military action can find support for their contention that it's illegal, and the supporters can find support for their contention that it's legal.
The Military Commissions Act of 2006 defined the term "unlawful enemy combatant" and re-stated the Presidents authority to declare persons in that status. The very recent Military Commissions Act of 2009 changed part of the 2006 Act, to include changing the terminology to "unprivileged enemy belligerent" and limiting it to aliens (non-U.S. citizens). It also restricted the definition to belligerents associated with al-Qaeda.
And what's a war? A battlefield? I think the duck analogy works pretty well -- if it looks, walks, and quacks like a duck.... When a group of people, whether state or non-state actors, conduct open hostilities against a nation over an extended period of time, then that's a war. That duck quacks for me. Even al-Qaeda has declared that they are at war with us. A battlefield -- broadly, where you meet and fight the enemy. That certainly includes Iraq and Afghanistan, where we've met former Guantanamo detainees. An airliner -- probably not, but so what? We still have to defend ourselves wherever we're attacked.
To state that the Korean War (note the terminology) was not a war but a police action may be supportable in legal terms, but it's sophistry. I've studied the Korean War in depth, and I've discussed it with many veterans of the conflict. I never met one who didn't think he'd been in a war, and I've never studied a conflict that more clearly met the common sense definition of "war."
I really liked President Obama's speech at the Nobel ceremony, and it's worth re-reading. Note this statement from the speech:
I face the world as it is, and cannot stand idle in the face of threats to the American people. For make no mistake: evil does exist in the world. A non-violent movement could not have halted Hitler's armies. Negotiations cannot convince al Qaeda's leaders to lay down their arms. To say that force is sometimes necessary is not a call to cynicism - it is a recognition of history; the imperfections of man and the limits of reason.
24 - Dan(Miller)
Tom, I realize that characterizing the Korean "conflict" as a police action rather than as a war is gross sophistry; that's why I mentioned it. Clearly, it was a war in every sense of the word. There were reasonably well defined battlefields; artillery, tanks, ships and aircraft were used, and lots of soldiers, marines, airmen and sailors were not only involved but killed, wounded or captured. I was too young then, but did spend a lot of time traveling in Korea in the late sixties - very early seventies. The scars were still plainly visible, and not only on bullet ridden structures.
The "war" against al Qaeda is obviously very different; although I am pleased that President Obama so characterized it, I wish I had a better understanding of what he meant; come to think of it, I wish I thought he had a better understanding. Was it sophistry, or does it suggest a degree of determination similar to that evidenced in WWII and in Korea?
As to dealing with captured terrorists, I don't have a great answer. Civilian trials seem a poor venue in any circumstance I have been able to imagine. The recent Fourth Circuit decision in the case of Zacarias Moussaoui suggests substantial entertainment value but little better. Nor am I terribly impressed with the use of military commissions, although I think that, on balance, they are a better alternative. A decision released by the Court of Appeal for the D.C. Circuit on January 5, 2010, al Bihani v. Obama, suggests that indefinite detention "for the duration," with habeas corpus proceedings, may be the best answer in some cases. The judge who wrote the opinion noted,
Habeas review for Guantanamo detainees need not match the procedures developed by Congress and the courts specifically for habeas challenges to criminal convictions. Boumediene’s holding explicitly stated that habeas procedures for detainees "need not resemble a criminal trial," 128 S. Ct. at 2269. It instead invited "innovation" of habeas procedure by lower courts, granting leeway for "[c]ertain accommodations [to] be made to reduce the burden habeas corpus proceedings will place on the military."
Interestingly, Judge Brown, the author of the court's opinion, wrote her own separate concurring opinion, something rather unusual. There, she said, "it is important to ask whether a court-driven process is best suited to protecting both the rights of [GITMO] petitioners and the safety of our nation." Based on the full text of her concurring opinion, it is apparent that she thinks the answer is "no." I agree. An unusually thoughtful analysis of what we lost by deciding to try the underwear bomber in a civilian criminal court is presented here
Dan(Miller)
25 - pablo
Dan Miller 10
Perhaps you ought to break out your pocket constitution Dan, last time I checked only Congress has the consitutional (lawful) ability to declare war, not the President. I am surprised at your ignorance concerning this.