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.