Wednesday, December 9, 2009

The court-martial of three Navy SEALs, for purportedly punching terrorist suspect Ahmed Hashim Abed once in the gut, and the upcoming trials of Sept. 11, 2001, mastermind Khalid Shaikh Mohammed and four other Guantanamo Bay detainees in New York City illustrate a decisive shift from fighting a war on terrorism to conducting a police action.

The transition to a law enforcement mentality in our efforts to combat terrorism will create many challenges. Special operatives tracking down the world’s most menacing killers will have to make sure they have their Miranda cards handy.

If we are to try terrorists in U.S. federal court, we must ensure their capture and any evidence we will use meets the rigorous standards of our judicial system. This poses concerns about the methods and tactics our special operators use to conduct the raids that bring these savages to bay.

A raid into enemy territory to capture a terrorist alive is one of the most complex undertakings we attempt short of space flight. You could call it an intricate martial ballet, but I liken it to conducting a Beethoven symphony with all the players and instruments in free fall, hurtling toward Earth like a phalanx of lawn darts. So many facets must occur in perfect harmony that adding additional complicating factors is inviting failure.

Yet that is exactly what the law enforcement model must consider. If the information leading to a raid is not sufficient to justify a warrant, then what right do we have to kidnap a suspected terrorist? Our entire counterterror strategy is built upon the concept of high-value targets (HVTs) who are vetted by military and civilian intelligence before being put on a list as candidates for a raid.

But this process is not the same as presenting evidence to a grand jury or a judge to obtain an arrest or search warrant. The targets of these operations are not common criminals, or even war criminals. They belong to a group lower and less civilized than that, and they completely abjure all codes of conduct that would offer protections to those bound by them.

Picture the scene when we go to get Osama bin Laden.

(knock, knock, knock)

“Navy SEALs, we have a warrant.”

“Mr. bin Laden, open the door, please. We have a warrant, sir.”

“Thank you, sir. Can you please step away from that suicide vest. Thank you.”

“You, crime scene tape. You, cut the lights and get me a flashlight. I’m going to check for latent prints.”

It’s absurd, and yet our legal system would seem to require it. Now that we have him in custody, we can consider interrogating him about future al Qaeda operations. Except that we first must inform him that he has the right to remain silent and to an attorney and apparently to a show trial in New York City.

Even if we were to attempt to interrogate him, he has the word of our president and attorney general that we will not do so with any rigor. Heaven forbid he receive so much as a fat lip, as the three SEALs found out recently when they captured Abed, a butcher who murdered and desecrated four Americans in Fallujah.

These Americans now face a court-martial after Abed complained to Iraqi authorities. And the technique of waterboarding, which has been done to thousands of our own troops in training and which proved invaluable in convincing Mohammed to offer a treasure trove of intelligence? Absolutely not.

The terrorists know our playbook as well as our interrogators do, and now that we have shown what happens to our best if they even dangle a toe over the line, who is going to break the most fanatical enemies we have?

These restrictions may not be fully in place yet, but can you doubt we are on that path? The case of the three SEALs illustrates that the new system gives our special operators the perverse incentive to take no prisoners.

Why risk your career and life to truss up these barbarians and bring them back to watch cable TV in federal prison, while complaining to the press about how brutally they are being treated? If a Hellfire missile hurtling through a window and killing a terrorist and his family is due process, then so be it.

Jim Hanson was a weapons sergeant in 1st Special Forces Group and now serves as director of the Warrior Legacy Institute.

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