The Washington Post editorial board, which has demonstrated an above-average comprehension of the dynamics of a war on terror, gets it wrong in their lead editorial today. The Post scores the Bush administration for failing to provide trials for master terrorists it captures, calling the lack of such a "shambles":

SEPT. 11 MASTERMINDS Khalid Sheik Mohammed and Ramzi Binalshibh, along with numerous other infamous al-Qaeda figures, have been in American custody for years. So has Mohamed Qatani, who was allegedly to be the 20th hijacker. None has faced trial for his crimes. Nor have any of the hundreds of lesser foreign detainees captured in the war on terrorism. Nearly five years after the Sept. 11 attacks, the Bush administration's plans for bringing the enemy to justice are a shambles. This failure has been one of the most easily avoidable blunders in the war on terrorism. ...

The administration is correct that U.S. federal courts often will not be the right venue for such trials. Evidence collected in the rough and tumble of a shooting war doesn't always meet the rigorous standards that courts here rightly demand. The government may have good reason to withhold witnesses or classified information. Given that foreigners abroad do not have full constitutional rights, the administration's impulse to create an alternative trial mechanism with some flexibility was reasonable. Had it gone to Congress and sought authorization to use a variation of military courts-martial, with clear rules and a codification of the offenses such tribunals were to judge, it might today have a vibrant system of justice at Guantanamo Bay.

Instead, the administration sought to rewrite the rules from scratch and revive a system of trial not seen since the World War II era. The reason for this fateful error was largely ideological: The White House wished not merely to conduct trials but also to emphasize the president's power to do it on his own.

The reason for doing so had nothing to do with ideology, but with a decision that the United States had war declared on us and that the proper response was to treat it as a war and not an organized-crime ring. The Post wants to have it both ways, and the suggestion makes no sense at all.

When nations capture enemy combatants during wartime, they either get classified as POWs or as illegal combatants, usually by some sort of short tribunal. By all accounts, those have already taken place for all of the Guantanamo Bay detainees. When well-known leaders get captured, the need for such tribunals disappears; no one needs to determine the status of Khalid Sheikh Mohammed, since he has repeatedly self-identified as a member of the terrorist ring that declared war on and repeatedly attacked the United States. The detaining country has no obligation to provide trials for war crimes at that point; in fact, for POWs, the Geneva Convention forbids them. Only after the war has concluded does the capturing nation have an obligation to either charge their detainees with specific crimes or to release them.

The Bush admnistration had to reach back to World War II in order to develop their policy because the US has tried to pretend that its military actions in other venues did not amount to wars but instead were "police actions". No one refers to the Korean Police Action or the Viet Nam Police Action, of course -- because the rhetorical dodge fooled no one. However, it does indicate that the American ruling class has avoided the entire notion that we have warred with anyone since 1945. One of the more ridiculous effects of this self-deception of late has been an insistence on applying a civil criminal justice system to issues arising from war, an application for which our justice system and its precedents is almost completely unsuitable. Can you imagine a defense attorney not insisting on Miranda rights for Khalid Sheikh Mohammed, and the identification of the interrogators who got incriminating information from him?

In wartime, no enemy has any right to a trial until the war has finished. For instance, the British did not try Rudolf Hess in 1941 despite his one-man invasion of Britain. The Brits simply kept him imprisoned in the Tower until the Nuremberg trials sentenced him to life imprisonment. Hess, as Deputy Fuhrer, had no need of tribunal for that imprisonment, and the British had no need to try him until after victory had been secured.

Khalid Sheikh Mohammed has no right to trial or even to an administrative hearing during wartime. The Bush administration has correctly determined that al-Qaeda (and its affiliated terrorist groups) is an enemy at war, and that those who have identified themselves as leaders have given the US all it needs to hold them indefinitely. Trying to give them a right to a trial in the middle of a war does not serve victory or even legitimacy, but instead undermines the truth. In order to provide a legitimate trial, the defendant has to have a chance of being released if no conviction can be obtained. Does the Post truly think that the US and the war effort will be served by Mohammed's release if a court cannot make a specific trial determination of his connection to an act of war (9/11)? If the Post doesn't agree to his release under that circumstance, then isn't insisting on a trial a highly cycnical and hypocritical act?

We need to remember that Islamist terrorists declared war on the US almost a decade ago and initiated a series of escalating attacks on us to prosecute it. That effort culminated in 9/11, which the Bush administration correctly determined as an act of war. We need to continue fighting it as a war. We do not need to make ourselves feel good by pretending that our enemy has the same legal standing as urban gangs.

Trackback Pings

TrackBack URL for this entry is

Listed below are links to weblogs that reference Post Takes The Law-Enforcement Approach:

» Post Takes The Law-Enforcement Approach from War Horse, Pale Horse
Here is an excellent bit of commentary on the fighting-terrorism-with-lawyers approach. Also, beyond the topic of terrorists having the 'legal right' to speedy trials by a jury of their peers, I... [Read More]

Tracked on June 21, 2006 7:59 AM

» First Cup 06.21.06 from bRight & Early
... [Read More]

Tracked on June 21, 2006 9:29 AM