Responding to the lawfare lobby

TigerHawk takes on the latest op-ed brief for a dysfunctional method of fighting the enemy.

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Procedurally, "terrorists" come in different varieties. There are terrorism suspects arrested by police after they commit an act of terrorism, or plan a terrorist operation with such granularity that they commit numerous indisputable crimes in the process. In such cases, I am sure that the criminal justice system is often (although not always) a functioning means for preventing the suspect from attacking again. The criminal justice system does not always work even these cases, because if the arrest was based on evidence derived from infiltration or some other means that we want to keep secret from terrorists we have not yet arrested, disclosing the development and custody of that evidence in court would damage our ability to interdict future attacks.

Apart from suspected terrorists arrested by actual police, schooled as they are in the development and control of evidence, we also have terrorists taken prisoner on "the battlefield," meaning under suspicious or uncertain circumstances in foreign jurisdictions where al Qaeda is known to operate. As I understand it, most of the Gitmo detainees fall into this category. Soldiers are not trained to develop evidence, have no CSI unit available to them, and the military is not staffed or otherwise tasked with managing evidence and witnesses if either happen to fall into its possession. I suspect that most of the detainees at Gitmo could not be prosecuted even if we wanted to, because the people who "arrested" them have no training or mission in law enforcement. Moore's idea that we should empty Gitmo by prosecuting the detainees would probably result in the acquittal of a lot of very dangerous men, not to mention the extended distraction of law enforcement and prosecutorial assets that we might otherwise devote to interdiction.

This, of course, gets to the heart of the disagreement between those who would prosecute terrorists, and those who would sequester them until the jihad is as defeated and discredited as the Huks, the White Russians, and the Confederate States of America. The criminal justice system is not designed to interdict crime. It is designed to punish criminals after the fact of their crimes in order to deter others from becoming criminals. Jihadis, who blow themselves up in order to kill other people, are not deterrable. They are only interdictable. Which means that we need a means for putting them away that does not necessarily require the commission of a crime, particularly when we capture them under circumstances that do not allow for the organized development of evidence.

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Finally, Moore's idea that conviction of the Gitmo detainees will somehow diminish their status in the eyes of our enemies, or even the Muslim masses, is, well, hilarious. Does she really believe that the Arab street has such a refined regard for the American criminal justice system that it will revise its view of the Gitmo detainees if evidence -- which Moore admits may have to be kept secret -- is brought against them in a United States Federal courthouse? Or is Moore really only concerned about the reaction on the Manhattan cocktail party circuit?

This last howler is right up there with the argument that following the Geneva Conventions will lead to better treatment of captives from our side. Funny how they never mention this in stories about the killing of kidnapped captives.

There are many other reasons for opposing the lawfare method of fighting the enemy and perhaps the most important is that the discovery process will give incredible aid and comfort to the enemy and make it impossible to get the intelligence needed to stop the next attacks.