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

Moreover, even when enemy combatants have committed provable war crimes that qualify for trial by military commission, the priority in wartime remains victory for the nation. As long as the war ensues, due process for the war criminal is never the priority because prosecuting war crimes, even when the accused is a high-ranking enemy operative, is far less important than victory in the war. Due process rules governing discovery and testimony can result in the public revelation of our intelligence about the enemy, and in the use of the trial process by the enemy for propaganda purposes. Thus, war crimes trials rarely happen until after the war is over, and when they do happen during the war, great care must be taken to guard against unnecessary disclosures.

Of course, fundamental fairness requires permitting an accused war criminal enough access to counsel to prepare for trial. This, however, does not imply that the accused has constitutional rights. Most commentators get this point wrong. We permit an alien enemy combatant meaningful access to counsel because by accusing him of war crimes we have chosen to put him on trial. A trial would not meet the Anglo-American standards for a trial if the accused were not permitted a meaningful opportunity to mount whatever defense he may have. That is, our concern is with the integrity of the trial process, not with the purported “rights” of wartime enemies who have committed atrocities against Americans.

Obviously, then, an alien enemy combatant accused of war crimes is not entitled to the extensive contact with counsel afforded in the civilian justice system to Americans who are fully vested with Fifth and Sixth Amendment rights. And even less is an alien enemy combatant entitled to other, more general contact with the outside world.

Unlike meeting with defense counsel -- again, an unavoidable consequence once the decision is made to charge war crimes -- there is no reason to permit an alien enemy combatant detainee, particularly one of very high rank in the enemy forces, to communicate with people outside the prison. We owe only humane treatment (even though it would be preposterous to expect al Qaeda to reciprocate on that score). While the war continues, we do not owe an imprisoned alien enemy combatant the opportunity to correspond and otherwise get messages to friends, acquaintances, confederates, activists, and the media.

After news broke of KSM’s dissemination of an Islamic manifesto and correspondence with a pen-pal in England, the Obama Defense Department responded to criticism by claiming it had an adequate procedure to vet the combatants’ communications prior to allowing their mailing or publication. That is absurd. For starters, it is not a question of adequate vetting; alien enemy combatants should not be permitted to communicate with the outside world during wartime, period. The burden is not on us to scrub messages -- or, at least, it should not be. Furthermore, because our government, very much including the military, is willfully clueless regarding Islamic supremacist ideology, there is no way it could competently vet combatant communications even if such a system were required.

As the last quarter-century has taught us (even if the government remains mulishly deaf to the lesson), captured and imprisoned jihadists are lionized worldwide by Muslims adherent to Islamic supremacism -- which, unfortunately, is a mainstream interpretation of Islam in the Middle East and has followers throughout the West. We have a long history of arrested jihadists using their elevated stature as heroes imprisoned by the infidel enemy to promote jihadist recruiting and fundraising, and to inspire acts of terrorism.

To take just a few examples, after killing JDL founder Meir Kahane in 1990, Sayyid Nosair became a hero to jihadists. From Attica prison, he met with other jihadists, encouraged them to carry out mass-murder attacks and political assassinations, and helped plot the 1993 WTC bombing. He also made inspirational recordings that were played in radical mosques to promote recruiting and training. He made a habit of calling for more terrorism (“I did my part, why aren’t you doing your part?” was a refrain), but even when he did not expressly stoke the jihad, his ostensibly benign discussions of Islam were used by his confederates as a recruiting tool and a propaganda device -- propagating the enemy theme that America was at war with Islam, with all Muslims.