Neither Fish Nor Fowl

Well, the Supreme Court — by the slimmest majority — has ruled that the detainees at Guantanamo are entitled to have access to our civilian legal system. And I have to say I think this is a singularly bad thing. And I have come to this conclusion based on two arguments.

The first is, our troops are not cops. And I don’t want them to be cops.

Here’s a somewhat fanciful (but I think not entirely unrealistic) series of vignettes that show what I mean:

“Call the first case.”

“People of the United States vs. Abdul Durka.”

“Mr. Prosecutor?”

“Your honor, Mr. Durka was captured on the battlefield bearing arms and fighting against our troops.”

“Who captured him?”

“Corporal Washburne and his platoon.”

“Is Corporal Washburne available to testify?”

“No, your honor, they were killed in action three weeks later.”

“So, do you have any witnesses to Mr. Durka committing these alleged crimes?”

“None still alive, sir.”

“Case dismissed. Next case?”

“People vs. Mohammed Jihad.”

“Mr. Prosecutor?”

Your honor, this Mr. Jihad was found, unconscious, after a battle with an AK-47 in his hands.”

“And who found him and took him into custody?”

“Sir, that was Captain Reynolds, and he has been standing by for the last six months to testify.”

“And the weapon in question?”

“It was destroyed, along with all the other weapons seized in the battle.”

“No evidence, then? Case dismissed. Next case.”

“People vs. Ismail Hussein.”

“Mr. Prosecutor?”

“Your honor, Mr. Hussein was captured in a raid on a terrorist hideout. He was caught with three kidnapped civilians in his custody. He had just finished a video of himself beheading a fourth, and was standing over the body with the knife still in his hand.”

“Sounds ugly. Who led the raid?”

“Sgt. Alleyne, who has been standing by to testify for eight months.”

“How did Sgt. Alleyne know that there were terrorists in that building?”

“She acted on tips from neighbors.”

“Did she obtain a search warrant before going in?”

“No, your honor.”

“Case dismissed.”

The point I’m trying to make here is that soldiers are not cops, and we should not expect — or demand — that they act like it. The primary job of both is similar — both are agents of the government, authorized to use lethal force in the furtherance of order and government policy — but that is where the similarity ends. Police are highly trained to enforce the law, to use minimum force (if at all), and observe all the niceties and restrictions and repect the rights of those they oppose.

Soldiers, on the other hand, are trained to obey orders and use whatever force they deem appropriate to achieve their goals. That could be a handgun, or it could be armored vehicles, guided missiles, and big honking cannons mounted on armored vehicles. The military invented the term “overkill” only after they realized civilians needed a term to describe what they do as a matter of course, and never even thought to name.

The second reason is that terrorists are not criminals. Terrorists are the bastard child of criminals and soldiers, an unholy hybrid that blends the worst characteristics of both — the amorality and “do whatever it takes” and willful defiance of the law and the rights of others of criminals, and the tactics and weapons and absolute determination of the soldier. They lack the discipline and honor and integrity of the soldier, and the self-interest and self-preservation of the criminal.

This means that to treat them purely as criminals is pretty much doomed to failure. We saw this during the Clinton administration, when Bill Clinton responded to the ever-escalating threat of Al Qaeda by unleashing the Justice Department on them. After the first World Trade Center bombing, the FBI indentified the bombers (through a combination of good policework and the incredible stupidity and greed of the bombers — who actually sought the return of their deposit on the truck they blew up!) , and the Justice Department put them on trial.

And actually won convictions.

But what did that achieve?

Well, for one, we were incredibly lucky that they had largely succeeded in their attempt — at least as far as the prosecution was concerned. That meant that we didn’t have to reveal how we uncovered their plot before they could act, exposing our informants and our technological prowess at intercepting their communications. Instead, we just had to say “here’s the axle of the truck they blew up. Here’s the receipt showing Ryder bought it, here’s the rental agreement the defendants signed for it, here’s the storage unit they rented to mix up the bomb, here’s the leftover bomb stuff,” and so on.

But even with that, they still found a way to subvert the justice system. While in prison, the ringleader — the blind sheik, Omar Abdel-Rahman, carried on his leadership of his terrorists. He persuaded his attorney to bring in his henchman as a “translator” and then sit there and pretend she was discussing the case while he took reports and gave orders to the translator in Arabic.

Moreover, busting up that cell did absolutely nothing to head off future terrorist attacks. It didn’t prevent the Khobar Towers attacks, the African Embassy bombings, or the attack on the USS Cole.

The reason that our legal system is so ineffective at fighting terrorism is largely because it poses no real threat to them.

“Achmed, we want you to go to America and blow up the Washington Monument.”

“But what if I am caught?”

“Fear not, noble Achmed. You will be placed in a cell and given regular food, exercise, a Koran, and television. You will have your own lawyer who will fight for you. You will have regular chances to speak out and declare your faith in our cause and your hatred for the Great Satan.It could take years before you are actually brought to trial. And even if you are convicted, it will be even more years before you are executed. It is more likely you will be sentenced to prison for a very long time, but your lawyer will never give up trying to win your freedom.”

“But how will I pay for this lawyer? Or will you?”

“The Great Satans will pay him for you.”

“Will I be tortured?”

“Only if you ever meet with those who will support you in your struggle with the Great Satan.”

“I don’t understand. There are those among the Americans who will champion me against their own government? And meeting them will get me tortured?”

“This is a picture of Cindy Sheehan.”

“Allah preserve me!”

“Fear not, you can refuse to meet with her if you wish. And the Great Satan will actually keep her away from you if you say so.”

“Should — Allah forbid — I fail and be caught, those will be the very first words out of my mouth.”

“Don’t worry too much about getting caught, Achmed. It is quite possible you can do more damage to The Great Satan as a prisoner than as a jihadist.”

“Truly? Allah is great, my brother!”

Again, a bit of an exaggeration, but I don’t think too much of one.

Finally, I reject that the Geneva Convention should apply to terrorists.

For all its high ideals, the Geneva Convention accords governing warfare and the treatment of combatants can be boiled down to a single principle: extortion. It spells out what is and is not acceptable conduct in times of war, but the enforcement mechanism is simple: “we won’t do these things if you won’t.” If you violate the rules, then you have forfeited your protection by them and pretty much anything goes.

The Geneva Convention was signed by nations, and the terrorists we face are not representatives of any nation — signatory to the Accords or not. Further, by their very conduct, they routinely flout the rules of combat. They do not wear distinctive uniforms. They do not avoid causing civilian casualties. They do not respect such off-limits targets as schools, hospitals, ambulances, and the like.

Indeed, they almost seem to use the Convention rules as a checklist of ways to increase the efficacy of their attacks. They wear civilian garb and hide among civilians, making it very hard to target them without endangering innocents. They deliberately attack and kidnap and kill civilians. And they have used hospitals as bases of operations, ambulances as troop transports, and blown up at least one school — while children were attending.

The only reason we should be obeying the Geneva Convention with regards to terrorists is the old “because we’re the good guys,” and even that is lacking. In this case, we are deliberately hobbling ourselves because the whole point of the Accords is that they are self-enforcing — if you want the protections they offer, then you better obey the restrictions they place on you.

Unless, of course, you’re fighting the United States. Then you’re free to do whatever you like, secure in the knowledge that you will be treated the same as if you did obey them. There is no real penalty for being as savage, as brutal, as inhumane as you wish.

But that’s OK. The Supreme Court, by a 5-4 vote, has said that that’s OK. Terrorists are just criminals, and our courts can keep us safe.

I feel so much better now. Don’t you?

Wizbang Weekend Caption Contest™
The Gaffemeister has another "whoopsie!"; admits he likes higher gas prices.