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February 10, 2009

That's Why They Call It "War"

I've said it before, but it doesn't get any clearer than this:

It has never been possible, nor thought possible, to win a war in court. There are simply too many jihadists, with the vast majority operating outside the jurisdiction of our laws. When we are fortunate enough to nab one, that usually happens under fog-of-war conditions not conducive to Miranda warnings, police evidence-collection protocols, and the like. And it bears keeping in mind that the purpose of an American trial is to force the government to meet a very high burden of proof in a system developed for the benefit of American citizens enjoying the presumption of innocence. That is why we say we would prefer to see the government fail—i.e., prefer to see the guilty go free—than to see an innocent person wrongly convicted.

War is different. A war is fought—meaning that people are killed and prisoners taken—in order to achieve vital national objectives, particularly the protection of American lives. In that context, we cannot prefer to see the government fail. We need the government to prevail, or our lives and the rights we cherish are in jeopardy. That doesn’t mean the enemy doesn’t get due process, particularly if we decide to put some of them on trial for war crimes rather than simply detaining them for the duration of the conflict. There is, however, a reason it is called due process, rather than, say, trial process. We owe only the process that is due in the particular circumstances. War and peace are not the same circumstance. The process due Americans accused of crimes in civilian courts is not the same as the process due foreign combatants and terrorists captured during military operations.

In other words, what she said:

A federal trial in the United States would pose a security threat to the judge, prosecutors and witnesses, not to mention the jurors and the city in which the trial would be held. We do not have sufficient law enforcement personnel to provide these trial participants round-the-clock armed protection, the type of security still in place for the federal judge who tried Sheik Rahman in 1993.

A federal trial in the United States may preclude reliable evidence of guilt. When the evidence against a defendant is collected outside the United States (the usual situation for international terrorism investigations) serious problems arise for using it in a domestic trial. The American criminal justice system excludes evidence of guilt if law enforcement does not comply with certain procedures, a complicated system of rules not taught to the Rangers and Marines who could be locked in hand-to-hand combat with the putative defendants. For sure, the intricate procedures of the American criminal justice system are not taught to the anti-Taliban fighters who may capture prisoners. Nor to the foreign intelligence agencies and police forces who will also collect evidence.

At just what point is a soldier required to reach into his flak jacket and pull out a Miranda rights card? There are numerous evidentiary and procedural requirements of federal trials that demonstrate the folly of anyone thinking such trials should be used in wartime for belligerents. Below is a sampling of the legal questions facing the prosecutor:

" Does the Speedy Trial Act start running when the combatant is captured?

" Should the Miranda rights be given in Arabic? Which dialect?

" If the belligerent wants a lawyer and cannot afford one should she be sent at taxpayer expense to Kabul to confer with her client?

" Does the requirement that an arrested person must appear before a federal magistrate within several days to enter a plea apply?

" What happens when all the evidence showing guilt is not admitted because it was collected by a foreign police force using procedures not in compliance with United States Constitutional standards?

" What happens when all the evidence showing guilt is not turned over to the United States because a foreign intelligence agency does not want to reveal sources and methods?

" For evidence to be used against the defendant, how does the prosecution establish chain of custody, an impossible procedure on the battlefield?

In the aftermath of September 11, it is not necessarily true that an American jury would be the fairest deciders of guilt. If the judicial system thought Timothy McVeigh could not get a "fair" trial in Oklahoma, where in the United States is there an impartial jury for September 11?

For the past few months I've watched with amusement as various liberal bloggers who would never accept the implication that accused terrorists are guilty absent some proof, enthusiastically swallow the accusations of said detainees' defense attorneys whole and convict their captors in absentia: sans evidence, sans trial, sans due process. So much for the rule of law or the presumption of innocence.

These same folks then gleefully begin to crow, "You see??? They dropped the charges! 'Proof' that he was innocent!", as though the very real logistical problems associated with lawfare magically vanish in the presence of guilt. Guess what? Just as an acquittal doesn't prove innocence, neither does the decision to drop charges establish, much less prove, anything at all regarding the defendant's guilt.

You'd think some of these problems might have occurred to a President who (we're told) is both an attorney and an expert on the Constitution. Judging from the policy prescriptions we've been hearing to date, you'd be wrong.

Posted by Cassandra at February 10, 2009 01:12 PM

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This is an absolutely insane idea which could have been designed by Osama bin Laden himself to ensure victory over the US in the War on Terror.

Jihadists will be released by the dozens, maybe hundreds.

Since they can credibly claim that someone in their home countries wants them dead, they'll apply for asylum in the US. Many will actually receive it.

Now you'll have a hundred or so committed jihadists, with full Constitutional rights restored, INCLUDING the right to keep and bear ARMS, coming to a school, church, synagogue, courtroom, or shopping mall near you, fully armed and ready to rock.

They're still committed to visiting Allah...only with an escort of twenty or thirty INFIDELS.

This WILL come to pass if Dems insist on courtroom trials for terrorists.

Posted by: Tailgunner at February 10, 2009 03:01 PM

Hold the trials in Murtha's district. Let them free on their own recognizance, with solemn promises to appear when called.

"Judging from the policy prescriptions we've been hearing to date, you'd be wrong."

Obama has already told us that the Constitution puts too many limits on his power. He seems to have his own peculiar ideas about it.

Posted by: ZZMike at February 10, 2009 04:27 PM

During the Viet Nam conflict there was always the problem of separating the bad guys from the bystanders. One popular T-Shirt then would seem to apply now: KILL 'EM ALL. LET GOD SORT THEM OUT.

Posted by: mike at February 10, 2009 06:09 PM

These same folks then gleefully begin to crow, "You see??? They dropped the charges! 'Proof' that he was innocent!"

Does my mentioning that a while back elevate me to New Age-y Prescient status?

Posted by: BillT at February 11, 2009 03:29 AM