I’ve spent a lot of the last week, including in today’s column, debating U.S. combatant detention policy with Sen. Rand Paul (R., Ky.). Last week, during the debate over the McCain-Levin amendment to the defense authorization bill, Sen. Paul seemed to call for a return to pre-9/11 counterterrorism policy — meaning bringing our wartime enemies into civilian court where they would be given all the rights of American citizens. When I pointed this out, Sen. Paul claimed that I was misrepresenting his position. He was really only going to bat for U.S. citizens alleged to be enemy combatants, he said.
If that is the case, I wonder if he’ll join me in expressing concern about today’s announcement by the FBI that the Justice Department has filed a civilian indictment against Faruq Khalil Muhammad ‘Isa in U.S. District Court in Brooklyn. ‘Isa is a Canada-based Iraqi who belongs to an international network of jihadists that recruited suicide bombers to conduct deadly terrorist attacks targeting United States military personnel fighting in the war in Iraq.
Specifically, the indictment charges ‘Isa with the murders of five American soldiers in a suicide bombing attack on the U.S. Army’s forward operating base in Mosul on April 10, 2009 –Staff Sergeant Gary L. Woods (age 24), Sergeant First Class Bryan E. Hall (32), Sergeant Edward W. Forrest Jr. (25), Corporal Jason G. Pautsch (20), and Private First Class Bryce E. Gaultier (22). The indictment also charges ‘Isa with conspiring to kill Americans abroad and providing material support to terrorism.
According to the criminal complaint filed several months ago, when Canadian authorities arrested ‘Isa after a lengthy investigation, the network also bombed a police complex in Mosul on March 31, 2009, killing seven people and wounding another 17. The complaint makes clear that ‘Isa performed his role in Canada, helping recruit suicide bombers to be smuggled into Iraq from Libya and Syria — motivated by a mainstream construction of sharia (Islamic law) that calls on Muslims to attack non-Muslim forces that invade and occupy Muslim countries. It is alleged that ‘Isa also wanted to join the fighting against American troops in Iraq and, failing that, planned to conduct terrorist attacks in the West.
The complaint also makes clear that, after participants in the attacks in Iraq were captured by allied military forces, they were turned over to the FBI for questioning — presumably under law-enforcement protocols (i.e., Miranda warnings).
One would think, especially after last week’s debate on detention policy, that wartime attacks on our troops in combat theaters would be a textbook case for detention under the laws of war and war-crimes trials by military commission. Yet, this case is plainly being handled as a law-enforcement matter.
The Obama administration is seeking ‘Isa’s extradition from Canada. Assuming the Canadian government agrees to transfer him, the plan is to give ‘Isa a civilian trial in Brooklyn. If it is being done that way because the Canadian government is insisting on civilian prosecution as a condition of agreeing to extradition, that would be one thing — our choice would be to agree or forego any prosecution at all. But nothing in the reporting I’ve seen indicates that civilian prosecution is being forced by Canadian authorities. It appears to be our own government’s preference to treat these acts of war as civilian criminal offenses.