Monday, November 26, 2001

Let’s get this out of the way: If asked to choose between trying a terrorist and killing him outright on the battlefield, I’m for killing. And most of the administration probably agrees. Still, we must consider what to do with those who surrender, and President Bush has provided the answer: Try them in military tribunals.

The American Civil Liberties Union and other civil-rights fetishists, including both liberals and conservatives, are dismayed. “The government gets to decide first you’re guilty. Then it puts you through the process to affirm that you’re guilty,” said Morton H. Halperin, a senior fellow at the Council on Foreign Relations.

Laura Murphy of the ACLU said, “The use of military tribunals would apparently authorize secret trials without a jury and without the requirement of a unanimous verdict, and would limit a defendant’s opportunities to confront the evidence against him and choose his own lawyer.”

Well, yes, unless we can shoot the bastards before they get a chance to surrender.

Look, in all seriousness, these tribunals will not be invoked for Americans. The administration doesn’t intend that, and if it tried, the people would never stand for it. Trial by military tribunal is the bare minimum we should provide to our enemies not for their sake, but because that’s the kind of people we are.

To suggest that terrorists should receive the full panoply of constitutional protections American citizens enjoy when accused of crimes is preposterous. Our own soldiers receive military justice when they transgress. Shall our enemies get something more? Will our soldiers read Osama bin Laden his Miranda rights after they nab him? (Do we really want to guarantee to bin Laden’s lieutenants that they have the “right to remain silent”?) Will evidence be excluded if no search warrant preceded its discovery? Shall we conduct a televised trial complete with theatrics and testimony about the anti-Muslim prejudices of American juries?

A military tribunal is the correct venue in which to make the point that these barbarians have violated the rules of war. They have attacked innocent civilians without warning, and they have advocated and committed genocide.

All of this hyperventilating about rights is the latest incarnation of an old error, one that ought to have been laid to rest on September 11. This was the idea that terror could be treated as a criminal justice matter instead of a casus belli.

Throughout the past decade, the United States repeatedly responded to terror by looking for individuals to try in our courts. In fact, the Clinton administration actually turned down Sudan’s offer to extradite Osama bin Laden because it feared we could not convict him. The very resort to criminal courts is a limp and inadequate response to those who are trying to bring down our civilization. It signaled weakness, which is provocative. But it also led to other disasters.

In the trial of the those who plotted the first World Trade Center bombing, al Qaeda discovered, through testimony of experts, that you’d need more than a big bomb to bring down those towers. In the trial of those who bombed our embassies in Africa, bin Laden learned that we were eavesdropping on his satellite phone calls.

As Attorney General John Ashcroft pointed out, trying terrorists in our courts might compromise secret information. Or, if the government decided the information was too precious to reveal, might impede convictions. And as the president noted, our juries might be subject to intimidation by terrorists.

Some have urged that absent a declaration of war against another state, the terrorists cannot be treated as combatants. Not only does this defy common sense, it defies history. One of our first wars was against a non-state the Barbary Pirates.

In 1942, eight Nazi saboteurs were captured in Florida and Long Island. They were dressed as civilians and carried American currency. President Franklin Roosevelt had them tried before military tribunals. All were convicted, and six were executed. One had been born here and was accordingly an American citizen. The Supreme Court upheld the government’s action.

In wartime, our society defends its existence. A too nice preoccupation with civil rights risks all of our liberties and our lives. For if there is no country to enforce those rights, there are no rights.

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