I was personally on the fence about this decision after word of it first leaked out last week. I freely admit that my own personal bias has colored my view of how to proceed. Frankly, all I cared about was coming up with some sort of guilty verdict, if possible, and executing the man. If this meant a civilian trial, a military tribunal, or simply an unfortunate “accident” en route to his home country, then so be it. But satisfying my mean-spirited desires doesn’t bring us any closer to a long-term resolution of the real problem which this controversy is bringing to light.
Plenty of arguments have been made about how to proceed in the Global War on Terror and GWOT hawks have become quite comfortable in tossing around the phrase “enemy combatant.” Unfortunately, this is a phrase lacking critical definition in our legal system. Congress made some progress by approving procedures for military tribunals, though they were initially rejected by the Supreme Court and then later approved with revisions. But the fact remains that the very nature of war changed radically in the latter part of the 20th century while we continue to work within a judicial system mostly rooted in a pre-Vietnam mindset.
As much as the hawks will gnash their teeth to hear this, Khalid Sheikh Mohammed and his buddies are not uniformed members of the recognized military of any nation. They are, in fact, civilians after their own fashion. Therefore, treating them precisely like a prisoner of war — such as we did during World War 2 — is a process full of more holes than a Swiss cheese. But we are clearly moving toward remedies which seek to treat them differently than any other non-citizen who comes to our shores and commits a crime. But this path is also fraught with dangers.
For a brief thought experiment on the subject, imagine if a group of deranged Canadian fans of Michael Moore finished watching his latest box office flop and decided to fly down to New York. Upon arrival, they begin shooting stock brokers as they emerge from their offices, all the while chanting slogans about the evils of capitalism. Are they criminals? Or are they enemy combatants?
They fail to meet the normal standard for terrorist treatment in two regards:
- They are stubbornly “non-foreign” in appearance, with white skin and a command of the English language.
- They are not Muslims.
And yet, they are foreigners committing a wide-spread crime involving significant loss of life while spouting propaganda which directly conflicts with one of the foundations of our democracy. What do we do with them?
The more we blur the lines between military and civilian defendants, the closer we come to undermining some of the bedrock assumptions upon which our nation was founded. Nidal Hasan provides us with another example of this quandary. He is conveniently a member of our military, and therefore subject to a different system of justice than the average American. (That being the Uniform Code of Military Justice.)
But what if he had been a civilian family member or base employee? Would he be a criminal or a terrorist? The man is an American citizen and entitled to the same protections as the rest of us. But if we begin challenging some of these long held definitions, could American citizens lose some of their constitutionally assured rights and be lumped into military tribunals with the likes of KSM? It’s an unsettling thought.
It seems clear that more work remains in our efforts to redefine our legal system to handle the challenges of war in the modern era. While it will fall upon Congress to do the heavy lifting, the president needs to be leading the way in setting the direction for these changes. By sending one group of terrorist to New York’s civilian courts and another to face a closed, military tribunal, Barack Obama is simply further muddying the waters. We need a clear process to handle cases such as this which will punish the guilty while still ensuring that our nation remains a beacon of justice and American citizens maintain the rights to which they are entitled. Thus far, we’re not getting any real resolution and politics appears to be trumping the need for constitutional clarity.