They are enemies first, not defendants

Joshua Filler:

The decision to prosecute Khalid Sheikh Mohammed in a federal court in New York could go down as one of the most misguided in the history of U.S. jurisprudence. The reasons are numerous, but one in particular will have serious consequences on our ability to collect intelligence to prevent attacks against the U.S. at home and abroad.

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Osama bin Laden, Mohammed and their al-Qaeda cohorts do not have the civilian constitutional right to remain silent, to have an attorney, to a speedy trial, to be judged by a jury of their peers and so on. By categorizing these men as mere criminals, we have incongruently tried to merge war-fighting tactics with the Federal Rules of Criminal Procedure and the Federal Rules of Evidence. On the one hand, we drop bombs on al-Qaeda using Predator drones and, on the other, we have to "Mirandize" them if captured. This is nonsensical.

What happens if bin Laden and his deputy, Ayman al-Zawahri, are captured overseas? They should be treated as unprivileged enemy belligerents, held and interrogated not for the purpose of building a civilian criminal case against them, but for the purpose of collecting intelligence in order to thwart future attacks. To achieve the latter may require us to engage in tactics, far short of waterboarding, that would nonetheless violate the constitutional rights of a traditional criminal defendant. This could result in the suppression of evidence and even the dismissal of cases. To avoid that from happening will hamstring our ability to collect intelligence and disrupt attacks.

The Justice Department's reasoning for this decision is incoherent. On the one hand, it declares that those captured on the battlefield for attacks overseas, especially against military targets, will be handled largely through military commissions. It cites the example of Abd al-Rahim al-Nashiri, charged with masterminding the attack on the USS Cole. But Mohammed was captured in Pakistan, and he has confessed to attacking the Pentagon. If you attack and kill thousands of civilians and military personnel on U.S. soil in violation of the laws of war, you will be afforded civilian constitutional due process rights, but if you attack our warships overseas, you get a military commission? What if the Cole had been docked in San Diego when it was attacked?

Finally, if Bin Laden and Zawahri are simply wanted criminal fugitives, any use of military force against them might be a violation of due process, calling into question the legality of our war against al-Qaeda. But we tried to treat our fight with al-Qaeda as a purely law enforcement operation with the 1993 World Trade Center bombers, and it failed miserably in stopping future attacks.

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Incoherent is a good description of Holder's position. Illogical is another. When Sen. Graham asked Holder about whether bin Laden would be entitled to a Miranda warning, Holder did not really have an answer. That is because, if we capture this guy he is going to be intrrogated to find out what plots are afoot.

What Filler is pointing out is why the lawfare strategy was such a failure in the 90s.