The Corner

Not War But Law Enforcment — the September 10th Approach Continues its Comeback

Former Attorney General Reno, along with other former federal prosecutors, has filed an amicus brief in the 4th Circuit challenging the indefinite detention of alien enemy combatants.  (See Washington Post story, here).  The case is somewhat unusual in that it involves a non-American combatant who was captured inside the U.S. (Everyone held at GITMO was captured outside the U.S.)  The distinction should not be meaningful.  In its 2004 Hamdi case, the Supreme Court held that a U.S. citizen can be held as an enemy combatant; if that is the case, an alien should be detainable regardless of where captured.

According to the Post, the former prosecutors contend “that criminal [i.e., civilian] courts are well equipped to prosecute terrorism suspects while guaranteeing the constitutional rights of defendants arrested on U.S. soil.”  The basis for this claim is, of course, that the civilian courts have been used successfully before — indeed, in AG Reno’s term, they had a perfect conviction record.

Unfortunately, the issue is not whether courts can conduct such trials and provide due process.  Those are the things lawyers tend to care about.  The real issue is whether the civilian justice system works as a national security matter, not a due process matter.  In the 90′s, while we were batting a thousand in terrorism trials, we were also managing to take out less than three dozen mostly low-level jihadists — out of an enemy that was growing in strength and audacity.  The trials may have been a model of due process, but they were an abysmal response to war.


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