Friday, June 15, 2007
Combatants and criminals: Apply the Die Hard standard
I have been otherwise engaged, and am not particularly up to speed on the Fourth Circuit's decision in the al-Marri case. For that you will have to read more learned bloggers. (For those of you equally late to the party, the case essentially holds that an alleged terrorist is entitled to the protections of the criminal justice system if he neither took the battlefield against the United States nor came here at the behest of an enemy state). However, I have read a bit of the mainstream media analysis of both left and right, enough to know that I hope the Supreme Court overturns the decision. I may or may not explain my reasons for that hope in a future post -- suffice it to say that the rules of procedure and evidence and the "confrontation clause" of the United States Constitution make it very difficult for the government to prosecute one jihadi without weakening its ability to interdict the next jihadi.
Anyway, much of the hanky-twisting turns on the supposed difficulty of distinguishing organized crime from political terrorism:
Eric M. Freedman, a law professor at Hofstra who represents men held at Guantánamo, said it was nonsensical and counterproductive to go to war against a group of terrorists. He offered an analogy.
“The Colombian drug cartel has airplanes and bombs and boats, and it shoots down American airplanes,” Professor Freedman said. “They’re criminals. You can’t go to war against the Colombian drug cartel. If you could, then when they shot down an American military airplane, they wouldn’t be guilty of anything. They’d have combat immunity.”
This is, of course, the sort of idiocy that crops up in law schools all the time. We tolerate it because it is harmless stuff when posed as an exam question. Kind of fun to think about. In the real world, though, it is just silly. When a federal judge adopts it as the law of the land it is downright dangerous.
We are at war with a loose affiliation of organizations bound together by a common political objective and ideology. The mother of all these organizations is called "Al Qaeda," and it rather specifically declared war on the United States in separate fatwas in 1996 and 1998. Those declarations specified geopolitical objectives.
The Columbian drug cartel does not have geopolitical objectives. It only wants to make money selling drugs. It is a criminal enterprise, which makes it profoundly different from the jihad right down to its reason for being. It is the difference between blowing open a bank vault and blowing up a synagogue, and everybody understands it. Everybody except a few law professors and editorialists at the New York Times, that is.
Indeed, back when European radicals were "the terrorists" in the popular imagination everybody understood the distinction between criminals and political terrorists in their gut. Even Hollywood, which hopes to sell its entertainment to pretty unaware people, did not need to explain the difference. This evening I caught the original Die Hard with the TigerHawk Teenager, and I was struck by the passage in which the Japanese executive realizes that Hans and his gang are after a fortune in bearer bonds:
Mr. Takagi...I'm not interested in your
computer.
(beat)
I'm interested in the 640 million dollars
in negotiable bearer bonds you have in
you vault.
ON Takagi's reaction.
HANS
Yes...I know about them. The code
key is a necessary step in accessing
the vault.
TAKAGI
You want...money? What kind of
terrorists are you?
HANS
(amused)
Who said we were terrorists?
Exactly. It isn't the firepower that separates terrorists from mere criminals, it is their purpose. Moreover, that purpose is no harder to divine than any of the many other state-of-mind requirements in the law. The distinction, though, is crucial because a violent, heavily-armed gang that is only after money can be deterred. A terrorist army that is willing to spend itself for a political cause can only be interdicted, and that makes all the difference.
3 Comments:
By 
, at
Fri Jun 15, 12:57:00 AM:
I think you are missing the real point of all the "hanky-twisting." The say-so of the executive is not enough to convince me that we should countenance someone being snatched off this country's streets and thrown into a black hole in some military prison somewhere, to rot there until the same executive decides to let him go, with none of the protections that everyone who sets foot in this country is supposed to enjoy - including non-citizens. If you want to amend the constitution to say that the protections in the Bill of Rights don't apply to non-citizens, or if you want to authorize the president to suspend habeas, then fine, but until then what the executive is doing is illegal and needs to stop. The moment we stop being a nation of laws we will have lost a great deal.
The only reason this case is even an issue is that al-Marri was captured on US soil, so constitutional protections apply for him. If the government really wanted to fuck him over, it could just deport him, re-capture him in a foreign country, and then ship him to Gitmo where he could be kept and tortured to their heart's content without any constiutional protections applying.
By , at
Fri Jun 15, 04:12:00 AM:
They guy met personally with Zawahari and was set to be a "sleeper" and was caught with 1,000 phony credit cards and all sorts of Al Qaeda material.
We had this problem with US citizens who were sent ashore by the Nazis in civvies to kill people. We hung them after a military tribunal.
What is REALLY at issue here? The courts and their defenders are on the side of Al Qaeda and their terrorists. They want a "legal" response to terror. Maybe even a sharply worded letter to bin Laden asking him not to kill so many people next time. Or we might sue him.
What LAW protected the people who leapt to their death from the WTC on 9/11? What LAW or COURT protected people on Flight 93.
Let's face it, if the Government is unable to act to stop terrorists, constrained by criminal law (all intelligence, foreign interrogations, methods and sources are out), then the American people will understand:
They are on their own.
So they will revert to Vigilantism. That Muslim looks like they preparing to hijack a plane you are on? Do what you have to in order to live, regardless, because you already know that the Government has done nothing, given the Pro-Al Qaeda Courts and Media and various liberal backers.
That Muslim down the street looking suspicious? Perhaps like other sudden Jihad Syndrome jihadis he will start shooting and yelling Alluhu Akbar! Maybe those Muslim men in the garage, working odd hours, are preparing to bomb the local shopping mall, kindergarten, what ever. The only way to stop it is to act, with others, ala Vigilantes.
Vigilantism has a long history, during obvious Government failures to address public safety, due to corruption, ineptitude, or siding with bandits. San Francisco's anti-Irish gang Vigilantes after the murder by the Irish gangs of James King of William (a newspaper publisher) is likely the best known.
If Dems and the Courts wanted to deliberately create Vigilantism they couldn't have done a better job. Cause AQ is not stopping trying to kill us. And if the Govt goes back to 9/10 Criminal Justice mode (absolute proof needed, beyond a shadow of a doubt) then thousands and more will die in the US and the counter-reaction will make the Committees of Vigilance seem like the Boy Scouts.
By 
O-Be-Wise, at
Fri Jun 15, 01:15:00 PM:
My, that anonymous comment revealed why it is so easy for the MSM to label some conservatives as "extremists," "radical right wingers," and appropriately in this case, "vigilantes." Chilling.
I wanted to mention for consideration in your musings over gangs, terrorist, groups, and cartels, that Winston Churchill was very careful in all of his pre and post WWII speeches to identify and refer to Hitler and the Nazi party as a "gang" or "armed gang" or "Hitler's evil gang of killers." He did so to differentiate the German citizenry from the "murderous gang" that was plunging or did plunge Germany into a war that was bringing bombings and suffering to the German people.
It was important to Churchill to create the image that Germany was infested by a terrible and well armed gang, and infected with an ideology that could be allowed to continue. Removing the gang from power and the ideology that created it was the goal of the war, not annihilation of the German people. He hoped that the Germans would arise and overthrow Hitler's gang after years of suffering, and sue for peace under a new government.
Thus "gangs" can be heavily armed militaries governing entire nation states, and waging war against an ideology, gang, or nation state involves no need for distinctions.
Thanks for your thought-provoking post.
V. O-Be-Wise
Author of Capital Cloak
