Re: While You Weren’t Looking

by David French

I can’t really improve on Andrew McCarthy’s post below — after all, he set the gold standard in prosecuting terrorists — but let me just add two quick points, one practical and the other legal.

First, as a practical matter, setting a standard of evidence collection in war zones or hostile countries overseas that is sufficient not only to convict a terrorist beyond a reasonable doubt in a civilian American court, but also complies with civilian rules of evidence, is not only hopelessly unrealistic, it’s dangerous. While in Iraq, I (among other tasks) assisted in investigations of al-Qaeda detainees, helped gather and evaluate evidence for targeting decisions, and cooperated with Iraqi-government prosecutions of local insurgents. Yet all our procedures and standards made allowances for the reality of war. In a war zone, every mission was a combat mission, and running around “chasing down leads” would be nothing short of idiotic. Our best evidence was gathered through means and methods dangerous to describe and stupid to disclose.

The laws of war, of course, anticipate these difficulties and allow for the military commissions we’ve created. That’s why we should use them.

Second, and as mentioned by our ACLJ chief counsel, Jay Sekulow, in a Fox column this afternoon, if we — as the world’s foremost military power and leader of the NATO effort in Afghanistan — begin adopting law-enforcement practices in military conflicts, then we risk adjusting customary international law. What is customary international law? It’s a binding set of rules and principles developed through the actual policies and practices of nations. Here’s how the International Committee of the Red Cross describes it:

Customary international law is made up of rules that come from “a general practice accepted as law” and that exist independent of treaty law. Customary international humanitarian law (IHL) is of crucial importance in today’s armed conflicts because it fills gaps left by treaty law in both international and non-international conflicts and so strengthens the protection offered to victims.

As I’ve discussed before, the United States is in a legal tug of war against nations that want to restrict the law of armed conflict and impose International Human Rights Law (IHRL) even in war. By adopting a policy or practice they deem not just preferable but potentially ultimately binding under IHRL, we create dangerous precedents — precedents future generations may consider binding on our military.

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