Because they operate in violation of the Geneva Conventions, of course.

Not every detainee can be put on trial. But those who plan, assist or participate in acts of terrorism can face charges under the laws of war. Where trials are possible, criminal convictions provide a more legitimate basis for long-term incarceration than any kind of detention without charge. Trials also provide public accountability for unspeakable crimes and plots -- that is, they provide a measure of justice.

The administration is correct that U.S. federal courts often will not be the right venue for such trials. Evidence collected in the rough and tumble of a shooting war doesn't always meet the rigorous standards that courts here rightly demand. The government may have good reason to withhold witnesses or classified information. Given that foreigners abroad do not have full constitutional rights, the administration's impulse to create an alternative trial mechanism with some flexibility was reasonable. Had it gone to Congress and sought authorization to use a variation of military courts-martial, with clear rules and a codification of the offenses such tribunals were to judge, it might today have a vibrant system of justice at Guantanamo Bay.

Instead, the administration sought to rewrite the rules from scratch and revive a system of trial not seen since the World War II era. The reason for this fateful error was largely ideological: The White House wished not merely to conduct trials but also to emphasize the president's power to do it on his own.

Consequently, the executive branch alone has defined the offenses to be tried by commission and it alone has written the trial rules, which have shifted repeatedly. The legality of the system has been in doubt from its inception. And while the rules have improved over time, they still permit unfairness. The result: a system that inspires little confidence here or abroad and that in five years has yet to produce one trial.

Even if the Supreme Court erases the cloud of legal uncertainty in the coming days, it makes no sense to proceed in this fashion. Instead, Congress should write a law clarifying that courts-martial will try these cases and modifying the model if necessary. The military uses this system to try its own personnel every day. More than the commissions, courts-martial would guarantee due process to detainees: the right to challenge evidence, a full appeal to the federal courts. Trials by court-martial are accepted around the world as fair.

At the same time, the system could be modified to take into account the government's needs in a continuing war. These might give prosecutors more leeway to use hearsay evidence in some cases, or to protect intelligence secrets. There may be circumstances when the accused will need to be excluded from proceedings and have his interests represented by counsel cleared to handle sensitive information. But such departures from traditional trial rules should be narrowly drawn. They should be the product of a deliberative legislative process, not a fiat from the executive branch; written into law, not existing as rules the Pentagon can change whenever convenient.

The conflict with Islamic extremists will not be over soon. The nation needs now, and will continue to need, a means to try some of the most fateful criminals of all time according to fair rules that bear the stamp of democratic approval: legislative enactment. Only the administration's rigidly ideological approach to this problem prevents its timely resolution.

The only problem with the Post’s position is that it is 100% wrong, and seeks to create a new justice system at odds with the traditional manner used by the United States for dealing with unlawful combatants. These folks are not criminals in the traditional sense, and have no rights or expectation of being allowed the protections of the US Constitution, which they seek to destroy. Instead, they merit nothing more than the justice approved by the Supreme Court in the Quirin case during WWII – a trial before a military tribunal, appealed directly to the President, followed by a quick execution. Unless, of course, the Washington Post seeks this a new system today because finds the terrorists more to its liking than the genocidal Hitler regime, or is less supportive of the war we fight because of the 9/11 attack than it was of the war fought following Pearl Harbor.

Personally, I believe that if the tribunal system was good enough for spies and saboteurs sent to destroy the United States by Hitler, it is good enough for the jihadi swine that have made war upon our nation today. How can anyone disagree with such a proposition?

Ed Morrissey examines the historical implementation of these tribunals quite well.

In wartime, no enemy has any right to a trial until the war has finished. For instance, the British did not try Rudolf Hess in 1941 despite his one-man invasion of Britain. The Brits simply kept him imprisoned in the Tower until the Nuremberg trials sentenced him to life imprisonment. Hess, as Deputy Fuhrer, had no need of tribunal for that imprisonment, and the British had no need to try him until after victory had been secured.

Khalid Sheikh Mohammed has no right to trial or even to an administrative hearing during wartime. The Bush administration has correctly determined that al-Qaeda (and its affiliated terrorist groups) is an enemy at war, and that those who have identified themselves as leaders have given the US all it needs to hold them indefinitely. Trying to give them a right to a trial in the middle of a war does not serve victory or even legitimacy, but instead undermines the truth. In order to provide a legitimate trial, the defendant has to have a chance of being released if no conviction can be obtained. Does the Post truly think that the US and the war effort will be served by Mohammed's release if a court cannot make a specific trial determination of his connection to an act of war (9/11)? If the Post doesn't agree to his release under that circumstance, then isn't insisting on a trial a highly cycnical and hypocritical act?

We need to remember that Islamist terrorists declared war on the US almost a decade ago and initiated a series of escalating attacks on us to prosecute it. That effort culminated in 9/11, which the Bush administration correctly determined as an act of war. We need to continue fighting it as a war. We do not need to make ourselves feel good by pretending that our enemy has the same legal standing as urban gangs.

Indeed, following the course proposed by the Washington Post can have result in only two things – sham trials of terrorist defendants or the undercutting of the war effort in the courtroom. Neither is acceptable.

Posted by: Greg at 08:59 AM | No Comments | Add Comment
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