Justice for Terrorists

January 9th, 2010

By Tom Carter

The Obama Administration’s decision to try 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.

One could be forgiven for concluding that we’ve lost our collective mind.  This untenable situation has been caused by ideological divides within our country.  Extremists of the far right would prefer to see them interrogated thoroughly, however it has to be done, then shot.  Extremists of the far left would prefer for them to be treated like American citizens who are suspected of having broken a law, entitled to the rights all Americans enjoy.  Presumably, if acquitted they would be re-settled in the U.S. at taxpayer expense and put on welfare.

We can’t go on like this.  We have to ignore extremists on both sides of the question, decide how we’re going to proceed, and follow that path consistently.  Here’s what we should do:

  • Continue fighting and killing terrorists in the field.  Every effort should be made, as is already the case, to avoid innocent casualties.
  • Non-U.S. citizen terrorists captured overseas or apprehended in the U.S. should be declared to be unlawful enemy combatants under the legal and consitutional authority of the President.  They are entitled to treatment under Common Article 3 of the Geneva Conventions and should be tried by military commissions.  They should be interrogated in a lawful manner without Miranda warnings or the right to counsel.
  • U.S. citizens, wherever captured or apprehended, should be handled on a case-by-case basis and either tried by a civilian court or declared to be enemy combatants and tried by a military commission.
  • Prisoners who are found not guilty or determined not to be terrorists and not to be a threat otherwise should be returned to the country of their citizenship.
  • All of these procedures should be carried out in a predictable and timely manner.
  • Finally, the Guantanamo prison should remain open.  It already provides prisoners better and more humane treatment than most federal and state prisoners receive in the U.S., and moving the operation to a Guantanamo-like prison in the U.S. makes no substantive difference and simply wastes taxpayer dollars.

All of this may seem obvious, and it is, but during the past two administrations the government hasn’t seemed capable of getting its act together.  Perhaps I’m just an old soldier with an overly simple view of the world, but here’s the way I see it:  My country and its citizens are under sustained, long-term attack by a group of people who have declared war against us and sworn to destroy us.  That’s a war.  Those who are attacking us are enemies and combatants, and they’re acting unlawfully, given that they aren’t part of a duly constituted military force of a legitimate nation.  When we capture those who aren’t killed, they should be treated as the unlawful enemy combatants they are.  Once we wrap our collective mind around those facts, the rest is easy.  

For additional information: 

Guantanamo inmates no longer “enemy combatants”, Reuters
Geneva Convention Common Article 3, CDI
Terrorists Captured on Battlefield Have Constitutional Rights, CNS
Do Illegal Aliens Have Constitutional Rights?, About.com
Enemy Combatants, CFR
Fact Sheet: Military Commissions, DOD
Guantanamo military commission, Wikipedia

(This article was also published at Blogcritics.)

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19 Responses to “Justice for Terrorists”

  1. Brianna |

    Good piece Tom 🙂

  2. larry |

    I agree completely.

  3. Kevin |

    Extremists of the far left would prefer for them to be treated like American citizens who are suspected of having broken a law, entitled to the rights all Americans enjoy.

    “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” – Declaration of Independence.

  4. Tom |

    Kevin, the fact is, if we’re talking about alien unlawful enemy combatants (or, to use the current legal term, alien unprivileged enemy belligerents), they don’t have rights like American citizens. The President has the legal and constitutional power to declare this status, and he has done so in most cases (meaning both of the last two presidents). American citizens, of course, are in a different category.

    So, even President Obama doesn’t believe captured terrorists have full constitutional rights, except for the handful he’s inexplicably decided to try in federal court.

    You might want to check out the Military Commissions Act of 2006, as amended in 2009.

  5. Kevin |

    Tom, an inalienable right is one that can’t be conferred by a lesser entity… such as a government. Nor, logically, can it justly be denied by said lesser entity.

    I’m not going to dig into the MCA of 2006 or it’s 2009 amended version as I believe that the DoI predates both by centuries. Interestingly enough, later portions of the DoI talks about governments who pervert justice.

    Lastly, I found it slightly amusing to see your resident conservatives – who allegedly hold both the Founders and the supposed purity of purpose of our young nation in the highest esteem – glibly fail to perform even the most minimal critical analysis with their dittoes here. Amusing but not surprising because of course that would mean accepting the notion that the Founders were extremists of the far left.

  6. Brianna |

    Did you actually read any of the sources Tom linked to, or did you just decide that because he is actually cognizant of the fact that we’re at war, that he must be a loony of the far right?

    These people flew a plane into the Pentagon. They flew planes into buildings full of civilians. They shot up a military base. They are shooting our soldiers overseas (whatever you think about the Iraq invasion, the Afghanistan one was certainly legitimate). They tried to blow up a plane full of civilians less than a month ago. These are not lone incidents. These are not isolated extremists. These are terrorists. We are at war.

    Because we are at war with Islamic terrorism, Islamic terrorists are subsequently considered to be enemy combatants. Enemy combatants do not have Constitutional rights. Unlawful enemy combatants, which is what terrorists are, do not have full Geneva convention rights. This is neither a recent development nor a particularly unjust one, which again, you’d know if you’d actually read one or two of the eight separate links that Tom referenced as sources.

    Finally, while the Founding Fathers were definitely extremists, I sincerely doubt they would align themselves with the far Left as it is understood today. I also sincerely doubt they’d be arguing for constitutional protection for war criminals or foreign terrorists.

  7. Kevin |

    So, if only I’d read some links then I too could glibly pretend that the Founders didn’t mean what they all signed onto with the DoI?

  8. Brianna |

    No, but you might have realized that there are legitimate and long-standing reasons why enemy combatants in wars are not handled the same way as citizens or non-citizens who are not involved in armed conflicts.

  9. d |

    So,just shoot the #@+!.?? Well, I think they do have human rights,and maybe,even are human.They are our enemies and maybe radical,plus a tad crazy,but still don’t they have rights on our soil? No,just kill them,you do understand they think we are all evil and are invading their territory? Maybe,they are still human and have loved ones,who care enough about them to turn them in to a just and humane, law abiding authority. I agree,Kevin.

  10. Brianna |

    Sigh…. Deliberately misunderstanding the positions of your opponents in the hope of shaming them into submission will not get you anywhere, Doris.

  11. d |

    Sorry, if you feel misunderstood,Brianna,but I think I understand yours and Tom’s position. Attacking Kevin seems to be prominent,and thinking the terrorists less than human is evident,to me. Plus, someone should be on the oposing side,don’t you think,or else it would be boring.

  12. Brianna |

    Oh? And what part of Tom’s list called for summary execution? Where precisely did you see me say that I thought all terrorists should be shot on sight? Terrorists definitely have human rights, if only for the sake of the innocent who may someday stand accused. They unfortunately even qualify as human, at least biologically. But are they entitled to full Constitutional protection? Not as I understand the Geneva accords, or the treatment of enemy combatants.

    Enemy combatants (soldiers in uniform, acting in accordance with the rules of war) are entitled to the rights outlined in the Geneva conventions. Unlawful enemy combatants (terrorists) are entitled to humane treatment as specified in Article 5 of the Geneva conventions, and I agree with Tom that it is fair to try them via military commission. I didn’t write the Geneva Conventions, and neither did Tom, Bush (or for that matter, Obama). Since it’s really hard to argue that Islamic terrorists aren’t trying to attack America, or that terrorism that attacks civilians and is committed by men out of uniform goes against any sane definition of the rules of war, I’m not sure what the problem is.

  13. Kevin |

    Why Brianna, that is a fine argument against strict constructionism and it’s associated philosophies of originalism & textualism.

    Clearly, despite the fact of their ongoing War against the British, the Founders crafted and accepted the DoI from a point of relative ignorance compared to modernity and thus the principles they cited as primary reasons for risking their lives and fortunes in the armed quest for freedom simply have to be reinterpreted to have any relevance to modern circumstances.

    As I said before… “glibly fail to perform even the most minimal critical analysis with their dittoes here.”

  14. Kevin |

    BTW, just to inject some objective context here… when Tom says that “in many cases we met (released detainees) on the battlefield again” the most recent statistics I can find – which are ballpark consistent with all relevant statistics I’ve found – are that approximately 10% of released detainees end up on the battlefield. That means that approximately 90% of released detainees went home and stayed out of trouble despite having been denied the most basic principles of Justice that we Americans take for granted and upon which our nation was founded.

    How many of you would find a 90% error rate acceptable if it were your friends and family members who were being detained for years without due process? Would 10 of your friends being detained indefinitely when it turned out that only 1 of them was guilty be acceptable to you?

  15. d |


  16. Tom |

    Honestly, I’m not sure what all the to-and-fro is about. After some controversy, court decisions, and new legislation, the law and procedures for dealing with terrorists are pretty settled. There are really only two unresolved issues:

    — Should terrorist prisoners who aren’t U.S. citizens be declared unlawful enemy belligerents and tried by military commissions, as most will be, or should a selected few be tried in federal court like any common criminal in the U.S.? I think the answer is pretty clearly in favor of military commissions, but one thing is clear — it doesn’t make much sense to try some one way and some the other.

    — Should Guantanamo be closed? I think it’s pointless and a waste of money because a facility in the U.S., like the one in Illinois, is just going to be Guantanamo by another name. Can’t work any other way. The President has backed himself into a political corner on this one, so I suppose he’ll eventually have to do it.

  17. Kevin |

    Therein lays the crux, Tom. They’re *accused* terrorists. You rhetorically treat them as if their status as terrorists is a fait accompli over which there is no doubt.

    BBC News has a piece today on their website about a former American Gitmo guard who tracked down and apologized to two former detainees.

  18. Brianna |

    Like I said before, this method of dealing with unlawful enemy combatants is NOT NEW. It usually didn’t come up much in the past, because in the past conflicts were usually with other countries which actually had some sort of goal to attain and whose people could be trusted to actually stop fighting once their leadership surrendered. But there is precedent.


    Please also note that this was done under the administration of FDR, a hero of the liberal Left if ever there was one.

    As for the Founding Fathers… if they thought that Congress had the right “to define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations,” and adopted the resolution during the Revolution that spies would suffer death after being sentenced by a court martial, then I’m guessing they would probably have had no problem with military tribunals for terrorists in accordance with the Geneva conventions.

  19. Tom |

    Kevin, I grant that they’re “accused” or “alleged” terrorists. If you insert “accused” or “alleged” liberally throughout everything I’ve said, nothing changes. I’ve never said that they should be summarily shot, although many of them are prisoners only because they managed to avoid being killed while they were allegedly fighting against U.S. or allied forces on the alleged battlefield.

    My whole point is that they should be treated in accordance with law — military commissions for alien unlawful enemy belligerents, federal court for most U.S. citizens. Regardless of what anyone thinks, military commissions will find some of them innocent or guilty of lesser charges, and at least as fairly as federal courts.

    Let’s posit a worst-case scenario: Khalid Sheikh Mohammed is guilty. He’s admitted it numerous times, and he’s even requested execution so he can become a martyr to all Muslims. But in federal court, slick defense lawyers or incompetent prosecutors or a daffy judge (remember Judge Ito?) or a combination of all three results in him being acquitted or charges dismissed. What will the government do then? What would you have them do? If released, KSM would become even more of a hero to extremist Muslims than he already is, and he’d go right back to masterminding attacks against our fellow citizens. That disastrous scenario would be far less likely to become reality if KSM were tried by a military commission.

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