Do Terrorists Deserve Special Rights?
Our item yesterday on law professor Anthony D'Amato's opposition to treating al Qaeda detainees pursuant to the Geneva Conventions, prompted this response from reader Jonathan Hawkins, who defends D'Amato's position:What Bush is doing at Guantanamo is abhorrent to democracy and abhorrent to classically liberal values. It is more in line with the values shown by courts in the Middle East. We need to be better than they are, not equal to. (How so? Why? No support for this position. Just a summation-AJ)
You mention that Mr. Mohammed is "merely" undergoing an Article 5 tribunal. But Article 5 tribunals were designed in the context of wars which had a conceivable end. This one does not. How, then, can you miss that the declaration of Mr. Mohammed as an enemy combatant allows the administration to lock him up for as long as it is convenient for them to do so? And doesn't that create an extrajudicial detention, something more in common with autocracy than with the republican democracy we strive for? (What is the solution?-AJ)
To put it another way, if we have such great intel on what he was responsible for, why can't we just try him in a legitimate court and win? (Rules of evidence-soldiers are not police officers nor vice versa-AJ) Is the government that scared of their case's inadequacies? Is the government so incapable of protecting its sources and methods that it cannot suffer them to be even hinted at in publicly available parts of the trial? Or, as both conservatives and liberals should fear, does the government believe itself to be above the law?
Hypothetically speaking, Mr. Taranto, in such a world of military tribunals and never-ending "conflicts," what's to stop a similar Democratic administration from declaring you an enemy combatant and locking you up forever? This sword cuts both ways, and Mr. Bush, of whom you are apparently a fan, won't always be in office. We hope.
The central argument here is that the Geneva Conventions' provision allowing enemy combatants to be detained for the duration of the conflict is unjust if the war does not have "a conceivable end." This is perverse. (The alternative is to "Take-No-Prisoners" which is an option only in a video game. Not taking prisoners would go against everything that is American. we could ot do that and still have American Soldiers as the world knows and loves-AJ)
Hawkins is claiming that because al Qaeda has declared what appears to be a war without end (a war in which combatants on its side adhere to no rules of civliized conduct), those combatants are entitled to more rights than soldiers in a legitimate war: namely, all the rights enjoyed by defendants in the civilian criminal-justice system, including the right to go free unless criminal culpability is proved beyond a reasonable doubt. (Back to the terrorism-as-crime mentality. This brings about rules of evidence, chain of custody, rights of the accused, defense intervention, etc. No war is fought with those restrictions. The enemy does not offer these-AJ)
Hawkins then raises the specter of a future Democratic administration declaring this columnist an enemy combatant. To say the least, this is a remote and theoretical concern, and it does not trouble us at all. The Bush administration has never designated a domestic critic an enemy combatant, and we find implausible the suggestion that even an administration inclined to do so could get away with it.
On the other hand, we can think of quite a few cases in which overzealous prosecutors have abused the criminal-justice system, prosecuting innocent people for political ends, and sometimes winning convictions. Hawkins's faith in the criminal-justice system seems naive in light of his irrational objections to the treatment of enemy combatants in accordance with the Geneva Conventions.
Homer nods: We accidentally cut off the end of Anthony D'Amato's email in yesterday's column. We quickly corrected it, but for the benefit of our email subscribers, his conclusion should have read: "Mr. Taranto might wish to explain to his readers the difference between sentenced for life at a jury trial and sentenced for life at an administrative hearing. In the meantime, if I'm a red baiter, then Mr. Taranto is a bait and switcher."
Sadly......Nobody who opposes Guantanamo and open ended detention for enemy combatants has a solution. They offer no options. They want the police to replace soldiers. they want a CSI team to investigate each civilian atrocity they commit. They want legal protections, rights and strict rules of evidence to be given by people who are under attack or who are in the process of killing the enemy... Open ended detention is the best option. They want the rights and privileges of a civil society but reject the rule of law, laws of society and status of combatant (uniforms, not attacking civilians, no chemical weapons, etc) plus the protections of a prisoner of war... Someone would have to sign a treaty and abide by its terms... In the absence of grown-up national sovereignty to represent these killers, we are all left with the open ended detention...
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