In fact, Padilla's case demonstrates the opposite [of the argument that our civil courts are capable of trying illegal combatants]. Before yesterday's verdict, war foes were sneering that prosecutors weren't even charging him in the dirty-bomb plot. That is true, but the reason he wasn't charged for that crime is that the case was procedurally deficient: The military didn't read Padilla his Miranda rights or provide him a lawyer when it interrogated him. Padilla was convicted instead of conspiracy to murder, kidnap and maim people overseas. That means that if war opponents had their way, and if Padilla had been guilty only of planning to kill Americans on U.S. soil, he would walk free today.

This problem may be remediable in a similar future case. No doubt the next time a terrorist is picked up at O'Hare International Airport, FBI agents will read him his rights and make sure to honor them. But it is unreasonable to expect soldiers, Marines and intelligence officers on foreign battlefields to follow police procedures at the same time they're dodging bullets and trying to extract information to prevent attacks on Americans back home. The Padilla decision is reassuring in many respects, but it is not a model for the future handling of enemy combatants.
-- Wall Street Journal.

Labels: enemy combatants, intelligence, interrogation, Padilla, tribunals

This week, retired Gen. Wesley Clark and UCLA law professor Kal Raustiala penned what might be the least persuasive op-ed of the new millennium in the New York Times. Clark and Raustiala argue that we shouldn't treat members of al Qaeda as enemy combatants because such a designation is too high a compliment. "Labeling its members as combatants elevates its cause and gives al Qaeda an undeserved status," they argue. Therefore, they conclude, "the more appropriate designation for terrorists is not 'unlawful combatant' but the one long used by the United States: criminal."

They do not address the fact that under our system of law, "criminal" is the most advantageous designation a terrorist can get. It comes with all sorts of rights and rules terrorists can exploit: Miranda, speedy trials, the right to see classified evidence, the benefit of a reasonable doubt, the right to remain silent, etc.

We did not designate al Qaeda "enemy combatants" to elevate their status but to lower it. Under current treaty obligations, if we viewed al Qaeda as actual soldiers, they would be entitled to the protections of the Geneva Conventions even though they reject those conventions themselves.

And if we treated them like criminals under American law, we'd have to launch CSI: Kabul, collecting evidence for every "arrest." Clark and Raustilia say al Qaeda terrorists are more like pirates. But last I checked, Blackbeard wasn't interested in imposing a worldwide theocracy, and his henchmen weren't keen on blowing themselves up to achieve it.

If treating terrorists like any other criminals is such a good idea, why don't they recommend such an enlightened approach to Israel? After all, when Hezbollah rains down rockets on your cities, the sagacious response is to issue an arrest warrant and convene a grand jury.

We obviously need rules for dealing with people we capture, which is precisely what the Bush administration has been trying to establish. But saying that we should treat terrorists like criminals is to argue for doing less than nothing.
-- Jonah Goldberg, NRO

Labels: enemy combatants, gitmo, guantanamo, intelligence, interrogation