KSM’s Prison Communiqués: Enemy Combatants Back to Being Criminal Defendants

I was invited to provide commentary Tuesday night on Megyn Kelly’s Fox News program (“The Kelly File”) regarding the all too predictable but nevertheless appalling news that Khalid Sheikh Mohammed -- al Qaeda heavyweight, 9/11 mastermind, decapitator of Daniel Pearl, jihadist warring against America for the better part of two decades, and murderer of nearly 3,000 of our fellow citizens -- has been permitted to transmit propaganda out of the prison camp at Guantanamo Bay. The interview is posted on Megyn’s site here -- I respond to contentions made by the first guest, defense lawyer and former JAG Charles Swift.

More needs to be said on this. Let’s first consider the insanity of permitting enemy combatants to communicate with the outside world while the war ensues -- and though the administration rarely speaks or acts as if there is a war going on, and while the public pays it scant attention, we still have forces in harm’s way pursuant to a congressional authorization of combat operations; we are still killing and capturing enemy operatives pursuant to the laws of war, which is only permissible during wartime.

The rationale for shifting, post-9/11, from a law-enforcement counterterrorism paradigm to a war-footing prominently included the recognition that we had to regard as a military enemy, not as mere criminal defendants, the members of an international terrorist network that (a) had declared war against the U.S.; (b) was supported by rogue governments; (c) focused its jihad on American military, political, economic and civilian targets; and (d) was capable of projecting force on the scale of the 9/11 attacks. Contrary to popular wisdom, that remains a salient distinction.

Criminal defendant detainees in the civilian justice system are arrested only after being accused of crimes, and are presumed innocent of the charges. Thus, in the pretrial phase, they have an array of rights even if they are denied bail -- and bail may only be denied based on risk-of-flight or convincing proof that they pose a danger to potential witnesses or the community at large. These pretrial rights include liberal opportunities to meet with counsel for trial-defense preparation, and to have contact with others in the outside world that approximates what accused people who are at liberty enjoy. (This changes if and when a defendant is found guilty at trial. Incarcerated convicts have significantly fewer rights and privileges than pretrial detainees.)

To the contrary, enemy combatant detainees do not have to be accused of prosecutable offenses in order to be lawfully detained, and they are generally denied contact with the outside world. The reason is straightforward. While the object of the civilian criminal justice system is to provide due process to the accused so that civil rights are protected and trial outcomes have integrity, the object of war is to defeat the enemy. Consequently, while we owe enemy combatants basic humane treatment, due process concerns are not a high priority. After all, the rationale for detaining enemy combatants has little or nothing to do with prosecution of a criminal case -- indeed, there need be no criminal case, and in most instances there is not one. The purpose of detaining enemy combatants is to deplete the assets of the enemy and thus achieve victory more rapidly and with less bloodshed.