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Undue Process


I am fascinated that those advocating due process rights (even U.S. constitutional rights) for the enemy, beyond those conferred on the Nazis or Communists, and beyond those compelled by existing domestic and international law, are viewed as the humanitarians in this debate. Torture is already illegal. In fact, mistreatment that falls below the torture threshhold — case in point, Abu Ghraib — violates military policy and is prosecuted. I am not aware that our government is employing torture against the enemy as a matter of policy. However, I am aware that certain foreign governments, self-appointed human-rights organizations and politicians have made the claim to advance their opposition to the war. I am also aware that the al-Qaeda handbook directs detainees to claim torture regardless of the nature of their treatment. We ought not set national security policy based, even in part, on these considerations.

The fact is that we were much more brutal to prisoners of war during World War II, under the Roosevelt and Truman administrations, than we are today — pre-Geneva Conventions. Even the Geneva Conventions distinguish between prisoners of war and unlawful enemy combatants, the later receiving no protection. Those who rightly praise “the Greatest Generation” say little today of the military and interrogation tactics employed by that generation to defeat the Axis powers, for to do so would make evident that our current military techniques and detention methods are far more “humane.”

The McCain Amendment doesn’t merely codify interrogation requirements, as some of its advocates have suggested. It actually grants unlawful enemy combatants Fifth, Sixth, Eighth and Fourteenth Amendment protections under our Constitution. In past wars, such an approach would have been considered unthinkable – detrimental to our ability to successfully wage war. What’s changed today? Is there any doubt that lawyers armed with these new legal rights will make interrogation extremely difficult? Does anyone honestly believe that this will curb allegations of torture? Is there any doubt that today’s detainees are actually more dangerous than detainees of the past in that a single terrorist, properly armed, can unleash mass destruction on a U.S. city? So, why are we doing this? To prove our humanity? This is a major departure from our past practices during war-time.

To my way of thinking, protecting millions of innocent American citizens is far more humane than conferring rights — beyond traditional rights — on a particularly evil and lethal enemy.
The purpose of detention, as understood throughout our history and under international treaties, is not punishment, but security. These people are detained for two reasons: 1. prevent them from returning to the battlefield in the midst of a war; 2. elicit information from the detainees to prevent future attacks on our homeland. I fear that we are now doing that for which we criticized the Clinton administration — litigating the war on terrorism.