This past week was dominated by Obama's attempt to take it easy on Islamic terrorists, clashing with the desire of Congressional Democrats to avoid being implicated as soft on terrorism. Obama has to know that he can't win over most Americans with a debate over Gitmo. Going soft on terrorism appeals to only a limited demographic, even within the Democratic party.
What that kind of argument really does is revert America to a 9/10 mentality, when the FBI managed to bust some terrorists now and then, just not the ones that really counted.
In the War on Terrorism, the terrorists just have to get through once. We have to catch them every time. That's why the porous approaches of the criminal justice system may work fine when it comes to dealing with crime by Americans. It maintains high standards of proof and protection for Americans, which is what any system meant to serve Americans should do.
However when it comes to terrorism, maximizing protection for Americans, means minimizing it for foreign terrorists.
That's the fundamental difference between criminal justice and national defense. Criminal justice takes place on the civic level. National defense is a thick skin keeping enemies out at any cost.
That's why the police don't deploy jets to bomb Detroit when there's a gang war, but the US military does deploy jets to bomb enemy targets. National defense and criminal justice are two fundamentally different things and require different approaches.
Terrorist attacks planned and executed by global terrorist groups are not criminal acts, they're tactical operations funded, implemented and executed by enemies of the United States using trained operatives. It is as ridiculous to argue that the justice system should handle terrorists, as it is to argue that the police should go to Afghanistan and bring Osama Bin Laden to justice.
Most people would understand the manifest absurdity of the latter. But the former is equally and just as absurd.
American standards derive from the responsibilities of government, which exist only for the benefit of American citizens as part of a direct social contract. They are not a form of absolute morality that supersedes that social contract. So regardless of how repugnant some politicians and pundits may find waterboarding, there is no reason whatsoever to toss it overboard. The American legal system was created to give the benefit of the doubt to Americans. The United States military was created to protect Americans by measures far more ruthless than are allowed to any police force.
The criminal justice system is built full of holes on the principle that it is better to weigh the odds toward freeing the guilty, than imprisoning the innocent. But applying that same system to enemy combatants is a blatant misapplication of the purpose for which it was intended.
The legal system is intended to clarify the guilt or innocence of the defendant, and then apply a punishment or release the defendant. This entire process has no relevance to terrorists, where our goal should be to extract information from captured terrorists. Certainly the usual "tools" for doing that with organized crime are not going to be particularly helpful. Offering reduced sentences to people willing to die in order to kill Americans is likeliest to earn belly laughs, rather than actionable intelligence.
Meanwhile all this puts the United States in the absurd position of seizing people who were never within United States borders and then trying them under US criminal codes that they never explicitly or implicitly agreed to abide by. Criminality is judged based on compliance or non-compliance with the law. A terrorist leader in Afghanistan is not guilty because he is in violation of our laws, he is guilty of making war on us, without abiding by the laws of war.
Terrorists are not criminals. We are not trying to capture or kill them because they broke the law, but because they made war on us. That fundamental distinction is at the heart of the leftist misunderstanding of the War on Terror. The terrorists are entirely aware of the fact that they are fighting a war against us. They base this war on the legal codes found in their Koran. It is only on our side that there is any doubt about it being a war.
Many lawyers naturally argue that terrorists belong in their jurisdiction, but then lawyers have a tendency to view the playing field of the legal system as being virtually unlimited. And there are plenty of European models to show what kind of ridiculous nonsense results from the unlimited jurisdiction of the legal system, from giving human rights to the great apes (Spain) to suing foreign countries over actions committed outside their borders (Belgium) to criminalizing the Bible (Sweden) to ruling on whether a prize should be withdrawn to a recipient because of his patriotism (Israel).
The bottom line is that there is no reason to apply the civil protections of the justice system to enemy combatants. It will not deter terrorists. It is not the best way of gaining intelligence from terrorists. It will not protect captured US troops, (in fact knowing that their own captured terrorists have their rights protected by a legal system is a formula for giving them the confidence to abuse US troops without worrying about retaliation in kind), and it will not win the hearts and minds of anyone, especially as the terrorists are trained to manufacture stories of being tortured anyway.
When Obama argues for closing Gitmo and letting the criminal justice system tackle the problem, he's waving the white flag in the War on Terror, and surrendering the initiative to the terrorists and their lawyers. With 1 in 7 released terrorists already known as reoffenders, with the Al Queda chief in Yemen an ex-Gitmoite, with terrorists in civilian custody having already blinded one corrections officer in an escape attempt-- the entire project is doomed from the start.
Most of all it ignores the reason why we're in this in the first place. To stop terrorist attacks on the United States and destroy the terrorist network. The best way to do that is not through the same criminal justice system which failed to deal with the terrorist conspiracies in the United States pre- 9/11, but through the same post 9/11 system which succeeded in dismantling much of Al Queda. That is the protection that the United States government owes Americans.