Should Republicans go ahead and add Supreme Court Justices to head off Democrats

Lawfare or warfare

Washington Times Editorial:

"What we are seeing today," said William Barr last week before the Senate Judiciary Committee, "is an extreme ... effort to take the judicial rules and standards applicable in the domestic law enforcement context and extend them to the fighting of wars." Mr. Barr is referring to the current effort to treat Guantanamo detainees like American criminals, with full access to our courts. We agree with the former attorney general that "nothing could be more farcical, or more dangerous."
If the critics are right, and detained terrorists have an inalienable right to access U.S. courts, then they have created a new standard -- one which has no precedent in the Geneva Conventions, the Constitution or U.S. history. Even worse, as Mr. Barr suggested, it is a standard that would effectively make victory in the war on terror impossible.
"For every platoon of combat troops, the United States would have to field three platoons of lawyers, investigators and paralegals," Mr. Barr said. "Such a result would inject legal uncertainty into our military operations, divert resources from winning the war into demonstrating the individual 'fault' of persons confronted in the field of battle."
The critics, who are currently enjoying an increase in support from the right, of course couch their radical stance in terms of due process, as if what they are asking is the most ordinary thing in the world. And indeed, for American citizens it is. But never has the United States granted detained combatants this right. During World War II, for instance, the United States held hundreds of thousands of prisoners of war without charge, without legal representation and without a means to contest their designation as legal combatants taken on the battlefield.
This history conforms with the Geneva Conventions, as long as the detainee qualified as a legal combatant. If not, a detainee's rights as defined in the Geneva Conventions are considerably less. The reasons for this are simple. Article 4 of the convention on treatment of prisoners of war identifies a legal combatant as someone who fights under a recognized state which adheres to the Geneva Conventions; wears a fixed insignia or uniform; carries his arms openly; and conducts operations in accordance with the laws of war -- which rules out terrorists.

What the lawfare proponents want would result in the release of the detainees since none was give a Miranda warning and almost all the evidence against them would have come from their own mouths. By casting the detainees as unlawful combatants the US was able to do what it could not have done if the were POWs or if they were criminal defendents. It was able to interrigate them at length, sometimes using things that caused them discomfort. These interrigations led to finding other terrorist some of who had plotted the 9-11 attacks. Why do these people want to term the terrorist loose? Why does John McCain think they deserve a trial? Would he have wanted the North Vietnamese to try him while he was detained?