Posted by
On the Right on Saturday, June 07, 2008 8:07:17 PM
Once again, all eyes are fixed on Guantanamo Bay. “9/11 Plotters Are Arraigned”
We are now a litigation-obsessed society. That’s the prism through
which we assess a commission process that, historically, has never been
legally exacting. In the wars of prior eras, Americans were not
exercised over the consignment of war criminals to comparatively
barebones military trials. There was no fretting over the fact that
these were unilateral executive-branch affairs, conducted outside the
scrutiny of civilian judges. As a nation, we thought the point was to
defeat the enemy, not to make sure he got enough due process to prevent
Eurocrats and law professors from sniffling all over our reputation in
the international community.
Today, to borrow
the apt phrase of Harvard’s Jack Goldsmith, we have attempted to
“judicialize” warfare, as if there were no distinction between an
al-Qaeda mass-murderer and a common tax cheat. Consequently, our notion
of a fair trial for even alien war criminals is now colored by the
colossal disclosure obligations designed to protect Americans in
run-of-the-mill cases.
Thus the dilemma which results directly from today’s legal culture: Do
we come down on the side of protecting Americans (heretofore thought
the first responsibility of government) or the side of enhanced due
process for war criminals (heretofore never thought to be very high on
our list of imperatives)?
By contrast, alien enemy combatants detained by the military outside
the United States are not entitled to American constitutional rights.
Yes, we owe them due process, but, despite what the legal commentariat
spouts, “due process” is not shorthand for “the rights accorded to
defendants in the civilian criminal justice system.” It means just what
is says: the “process” that is “due” under the circumstances.
We have never owed hostile captives in war crimes tribunals the same
quantum of protection that must be extended to our own citizens
prosecuted in our own civilian courts by officials of our own
government. When hostile aliens threaten the nation, we are permitted
to draw sensible distinctions: to conduct proceedings that are fair but
that pay deference to our national self-defense, which restrains us
from edifying the enemy while the war rages.
Unlike
in the civilian criminal-justice system, we do not have to permit enemy
combatants to represent themselves in military commissions. And if we
decide to give them that privilege, we can qualify it. We don’t have to
let them extort us into sharing national-defense information with
al-Qaeda. We can tell KSM and his fellow barbarians: “Look, we are
willing to share sensitive information with a qualified lawyer who is
duty-bound to protect your interests. We can’t make you take that
lawyer, but that lawyer is your only way of accessing the sensitive
information. If you don’t want the lawyer, fine, but then you don’t get
the access — your choice.”
We can do it in a military commission. And Congress could direct it in a hybrid system — a national-security court for handling international terrorism cases in the future — which I believe our lawmakers should create.
In
a civilian trial, we can’t do it. We’d have to share the nation’s
secrets with Khalid Sheikh Mohammed … and Ayman Zawahiri, Osama bin
Laden, and any other enemy leaders we may capture in the years ahead.
That’s something Sen. McCain and Sen. Obama might bear in mind as they decry Gitmo and promise to shut it down.