How to treat terrorists

Scroll down the list of sobriquet-worthy terror suspects captured by the United States in recent months, and you will find no clear legal pattern. John Walker Lindh (the "American Taliban"), Richard Reid (the "shoe bomber") and Zacarias Moussaoui (the "20th hijacker") have all been charged with federal crimes. But another suspect, Jose Padilla (the "dirty bomber"), has instead been designated an "unlawful combatant," and is holed up in a military brig. Ditto the second "American Taliban," Yasser Hamdi.

Whatever one thinks of the war on terrorism, it is legitimate to be concerned by these seemingly arbitrary classifications. Mr. Hamdi and Mr. Lindh were both apprehended in Afghanistan. Why is one given a lawyer and put on trial while the other is stuck in a lawyerless brig indefinitely? Why does Mr. Moussaoui, who is accused of being affiliated with the Hamburg al-Qaeda cell and participating in a successful terrorist conspiracy, get more procedural rights than Mr. Padilla, whose dirty-bomb plan was thwarted in its conceptual stage?

The answer is expediency: Washington needs to keep terror suspects behind bars regardless of whether their actions rise to the level of a crime under U.S. domestic law. If Jose Padilla were tried for conspiracy, he might be acquitted because he didn't commit an "overt act" -- even if it were proven that he wants to explode nuclear material in a large city. U.S. authorities simply cannot allow a captured human bomb to walk free.

The government's dilemma stems from an anachronism. Historically, criminals and combatants have been treated as distinct creatures. But the threat of catastrophic terrorism blurs the difference -- and thereby puts Western governments in a double-bind. Classify a terrorist as a criminal? Do so and he gets all sorts of procedural rights that may make conviction and effective interrogation impossible. Classify him as a soldier? Go that route and you run into the Geneva conventions, which also prohibit vigorous interrogation and require combatants to be repatriated when hostilities end. (Here's an interesting question: How will we know when "hostilities" end in this context? The evacuation of all U.S. forces from Afghanistan? The killing of Osama bin Laden? The appearance of the Mahdi?)

The U.S. government's solution has been to label problematic terror suspects "unlawful combatants," a designation that deprives them of the benefits of both domestic criminal law and international military law. This tactic is legally defensible: The definitions contained in the Geneva Conventions cover the grunt in uniform fighting for family and flag; not a nihilistic cabal of maniacs with no concrete territorial ambitions. And yet, the approach poses problems: The U.S. government has been forced to argue the potentially frightening position that it can designate anyone it likes an "unlawful combatant," that such suspects should not get lawyers, and that the decision to impose the designation should be immune from appeal. While the government has acted responsibly so far, the rights the government now claims for itself seem unsustainably broad, and courts will soon poke holes in them. In fact, a Virginia district court has already entered an order to give Mr. Hamdi private, unmonitored access to a lawyer -- a step that, if upheld, could undermine U.S. interrogation efforts.

A better option would be an entirely new statutory rubric that takes stock of the fact that terrorism is neither crime nor war. A "terrorist" is in a category of his own -- and the United States should revise its laws accordingly. Other Western jurisdictions should follow suit, for they are equally hamstrung. Example: Germany. On Wednesday, police in that country questioned Abdelghani Mzoudi, a militant Islamist suspected of assisting the leader of the Sept. 11 attacks. Yet they could not interrogate him in custody because he had committed no crime under that country's criminal laws.

How would terrorists be treated under the new rubric? First, government authorities would be empowered to perform whatever humane interrogation they deem necessary -- unencumbered by lawyers or the Geneva Conventions. Second, terrorists would be not be tried by a regular court, but by a military tribunal of the type authorized by U.S. President George W. Bush last November. Third, terror suspects would be held to a lower threshold for conspiracy: If prosecutors can prove a suspect harbours a plan to commit a terrorist attack, he would be treated as a terrorist, regardless of whether his actions permit conviction under garden-variety criminal law. Fourth, terrorists would not be released until government officials judge they are no longer a threat. The Geneva conventions' requirement that prisoners be released "after the cessation of active hostilities" would be thrown out.

Finally, and most importantly from a civil liberties point of view, terrorists would be able to appeal their designation following interrogation -- a right they do not enjoy under the current "unlawful combatant" scheme. (The U.S. Foreign Intelligence Surveillance Act court, which already issues wiretap and search permits to law enforcement authorities investigating terrorism suspects, would be a fitting tribunal for this sort of appeal.) There is no question that the war on terrorism will require a reduction in civil liberties. But that does not mean terror suspects should have no rights at all.

It is time we realize that a new form of war has been unleashed. Like it or not, new tactics must be adopted...and they're not going to be at all pleasant. When you have a group of murderers who are willing, even eager, to die for their cause then the traditional methods of conviction and punishment don't apply any more.

Simple point: take a fat, middle aged, suburban male and threaten him with 10 years in a prison, and he'll be terrified. He'll give up the name, address, and shoe size of everyone he knows in order to mitigate the sentence. But what of a terrorist who was ready to die anyway? What if he (or she!) killed themselves in performing the act? How do you deter them?

The answers? One can either accept casualties - maybe lots of casualties - while keeping the civil liberties we value. Or one can drop some of the liberties and protections in exchange for security (Yes, I know the quote about trading essential liberty, security, and not deserving either). Or one can have more aggressive retaliation - i.e., executing family, friends, and associates. Or, of course, the massive retaliation of nuking mecca or something along that same line. So, your choice:

a) Accept lots of casualties
b) Go with a police state
c) Kill the terrorists friends, family, and associates
d) Nuke mecca
e) Other

Problem goes away if you call inflicting injury or intent to do so in the name of an enemy ideology, wahhabi islam or any of its hydra spawns, an act of war.

I agree, but that won't happen until we suffer as many attacks as Israel. In the meantime, I agree with the author that "A "terrorist" is in a category of his own -- and the United States should revise its laws accordingly." Ain't gonna happen with this Senate, though.

"There is no question that the war on terrorism will require a reduction in civil liberties. But that does not mean terror suspects should have no rights at all."

If we do this the right way, then there will be no reduction in civil liberties. You just can't arbitrarily read or interpret what you wish into the Constitution whether against terrorist or your common criminal. Holding these two without due process is absolutely wrong. All should be tried by a military tribunal I agree. But this is a very dangerous precedence that we have established. It is wrong. It is dangerous for the future. It needs to be done right.

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