Lawfare changes venue

NY Times:

TAKE a good look at the prosecution of Zacarias Moussaoui, an admitted member of Al Qaeda who may soon be sentenced to death, after pleading guilty to conspiracy in connection with the Sept. 11 attacks. It may be the last time a suspected terrorist will enjoy the full panoply of rights — a jury of civilians, an independent judge, the guarantee of an open trial — accorded to criminal defendants in the United States.

Instead, the government plans to try accused terrorists before special tribunals in which the judge is appointed by the Pentagon, the jurors are military officers and certain canonical rights in our civil system — like the right to be present at all sessions of the trial — are absent. The future of the tribunals will be up to the Supreme Court, which will rule on their legality in Salim Hamdan v. Defense Secretary Donald Rumsfeld, which is to be argued on Tuesday.

Salim Hamdan, born in Yemen, was captured in Afghanistan in November 2001 and has confessed to working as a driver for Osama bin Laden. Like Mr. Moussaoui, Mr. Hamdan was charged with conspiring with Al Qaeda to commit acts of terrorism. The critical distinction, though, is that Mr. Hamdan was charged as a war criminal, meaning he was designated for prosecution before a military tribunal rather than in a federal court. His lawyers, led by Neal K. Katyal, a professor at Georgetown University, have sued to block the tribunal; hence Hamdan v. Rumsfeld.

There is much more at stake here than the fate of one detainee. Mr. Hamdan's case will test a broader strategic shift in the American approach to fighting terrorism. By treating terrorism as an act of war rather than a crime, the Bush administration is hoping to end an embarrassing string of botched criminal terrorism prosecutions, including those of Mr. Moussaoui — where the judge recently rebuked a government prosecutor for improperly coaching witnesses — and Sami al-Arian, who is accused of being an Islamic Jihad activist and who was acquitted of various charges by a Florida jury several months ago.

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Yet the alternative — defining terrorist attacks simply as crimes — doesn't seem quite right either. After all, it was no coincidence that a target of the Sept. 11 hijackers was the headquarters of the United States military. Terrorists are capable of inflicting damage on a scale beyond the reach of any criminal enterprise. Anyway, the United States has responded to the attacks with military force; it seems a little late to debate whether the country is at war.

What are the implications of an unending war with no geographical boundaries? In one of their briefs, Mr. Hamdan's lawyers warn of "a dangerous and unprecedented expansion of executive authority" that would be tantamount to a re-allocation of constitutional power. A precedent that gave the president sweeping authority to fight the war on terror, they argue, could become "the edifice upon which any number of actions could be grounded, even against U.S. citizens." The president could assert his commander-in-chief powers to permit electronic surveillance without a wiretap, for instance, or to detain indefinitely an American citizen arrested in Cleveland.

Draconian as this sounds, advocates of the administration's position point out that warrantless surveillance and protracted detentions of suspected enemy combatants, even if they are American citizens, pale in comparison with the suspensions of civil rights deemed necessary in previous wars. During World War I, for instance, an American was sentenced to 10 years for questioning the "good faith" of our ally. His crime was making a film that depicted British atrocities in the Revolutionary War.

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The problem witht he lawfare model is that it gives the enemy access to our sources and methods of collecting intelligence on their activities through the discovery process. That is hos Osama found out we were tracking and listening to his calls when we prosecuted the African embassy bombers.