Yesterday a federal appeals panel threw the Jose "Dirty Bomber" Padilla case back in the Administration's face, derailing plans to shift the case from military to criminal court, and to change the charges from attempted radiological bombing to...yadda, yadda....All this because the Administration chose to be incoherent from the outset in handling terrorist captives. It wants to use the criminal justice system plus military justice plus indefinite detention without trial. These go together like mustard, pancakes and Castor oil. This approach has confused the courts, the press, the public and, worst of all, the Administration itself. It was doomed from the start. To be fair to the Administration, it may have done what it did partly to avoid a blow-up with its European allies at the start of the war--which surely would have been amplified by hostile media. It did not need that distraction while planning the Afghan war. But the harm done from such incoherence was merely delayed.
Trials convicting terrorists have at times worked, but only because they were relatively few in number and even then at some risk to compromising "sources and methods" and other investigations. Disclosure at the Sheik Abdel Rahman's trial for the first World Trade Center bombing that the towers were built to withstand the impact of a Boeing 707 sent useful information to al-Qai'da. Putting Zaccharias "20th hijacker" Moussaoui on trial led to a defense call for top al-Qai'da leaders held in custody to be produced at trial; keeping them out could cost the government the case, which remains unfinished more than four years after the arrest. From a standpoint of criminal justice the defense is right: confronting witnesses is a cornerstone of our criminal law. From a standpoint of fighting a war on terror, producing terrorist leaders in court is potentially disastrous; holding them in indefinite incommunicado detention is essential, both for secrecy and for interrogation effectiveness.
LFTC recently explained the tripartite approach that can avoid these pitfalls. Distinguish clearly between three classes of cases: (1) criminals to be prosecuted per the criminal law; (2) lawful combatants to be held for the duration of the conflict, under Geneva Convention rules; (3) unlawful combatants to be held for the duration of the conflict, but without Geneva protection. The purpose of the criminal justice system is to punish and, save for the worst offenders, rehabilitate; its bias in the first instance is to prevent mistaken deprivation of liberty. Wartime detention has two purposes: remove combatants from the battlefield and glean intelligence from detainees. The latter we refrain from doing as to lawful combatants, whose nations follow the Geneva rules. Most captives know little that is useful, and we seek to protect our own from mistreatment. So we fight under Marquis of Queensbury. We did not put POWs on trial in our 19th & 20th century wars. (Nuremburg was a special case for special targets.)
Wars against terrorist groups are those in which we needn't extend Geneva rules, as our adversaries will not reciprocate as required by the Conventions. While we might unilaterally decide to refrain from certain forms of treatment, we do so at risk of failing to glean intelligence about organizations and plans, without other sources to replace them. In an age of WMD terror risk this is a dicey bargain, raising the risk of catastrophic strikes. (We will--properly--refrain from torturing innocent family members; the issue is how much pressure--whether "torture" or not under applicable law--we wish to use against detainees themselves.) Our sole legal concession with unlawful combatants should be a single habeas corpus hearing to make sure we did not pick up the Domino's pizza delivery boy who went to the wrong cave at the wrong time. Even that should be denied known al-Qai'da leaders; for them DNA verification is enough.
All we should need to establish in order to justify holding and questioning a detainee indefinitely is proof that they are members of al-Qai'da or other affiliated terrorist group. Punishment and rehabilitation are simply beside the point--long-term detention solves the punishment problem anyway, even if detention is prophylactic rather than punitive in intent. Moussaoui and Padilla are members of al-Qai'da, so...zssst pffft. Hold them for the war, and learn what you can from them. Leave criminal court for transit union leaders who call illegal strikes.
The result of the Administration's policy and legal incoherence includes the recent flap over domestic surveillance. David Brooks (link below) has a fine piece in today's NY Times on the choices 43 had, and the mess we are in. Congress would not--could not--have amended FISA enough for sufficient flexibility; the process is too cumbersome, and members of Congress from a hostile opposition party will not keep secrets or entrust broad discretion in sensitive areas to a President they despise. Worst of all: At this remove from 9/11, and with four years of incoherence, it is likely impossible to start over and clarify the rules. And thus we will enter 2006 fighting a war with hands tied and blurred vision. Not good. Not good at all.
Washington Post: Court Rebukes Administration in Padilla Case
Brooks: When Big Brother Is You