It is, in my opinion, a tremendous mistake to move Kahlid Sheikh Mohammed, confessed master mind of the 9-11 attacks, into the federal court system for trial. This sets a disturbing and dangerous precedent. If enemy combatants in a war are to be treated as if they deserve the full rights and privileges of citizens of the United States, then we are certainly entering into uncharted territory.
Attorney General Eric Holder said "For over 200 years our nation has relied upon a faithful adherence to the rule of law. Once again, we will ask our legal system in two venues to answer that call." But this move, in fact, ignores the precedent of the past 200 years. Prisoners of war have never been treated in this way. Certainly there are rules and international agreements that dictate the treatment of these detainees, but the Geneva Convention even distinguishes between Lawful (uniformed soldiers) and Unlawful (those not in uniform) Enemy Combatants…and Unlawful Combatants have very few, if any, rights. They have never, though, been given the right to a trial in federal court. Justice for these prisoners has always been handled through military tribunals.
Section 1 of the 14th Amendment of the U. S. Constitution speaks to the issue of who is covered under our legal system. “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Foreign enemy combatants are definitely not covered under this section.
What are the implications of this action? These prisoners were taken captive during military actions, not through civil investigation. The role of the military in the time of war is to kill people and break things. Taking captives is only done as part of that process. We cannot turn soldiers, in the heat of battle, into police officers, requiring them to meet rules of evidence and to properly mirandize their captives. If prisoners of war are now to be considered under the jurisdiction of the court, will the military have to obtain a warrants before they move on the enemy? Will the failure to meet the requirements of civil justice mentioned above mean that cases can be thrown out and enemies set free? There is no precedent in law for this…no blueprint.
There must be lines between military and civil justice. This lack of separation has been blamed for not capturing Osama bin Laden when we had a chance before 9-11. As Lisa Myers of NBC Nightly News reported on March 17, 2004 when speaking of missed opportunities, “A Democratic member of the 9/11 commission says there was a larger issue: The Clinton administration treated bin Laden as a law enforcement problem.” The War on Terror cannot be treated as a law enforcement problem. If it is, we will move too slowly to prevent future attacks. Captured terrorists will simply clam up when interrogated because they know they now have “rights.”
This action must be challenged strongly. The President of the United States or his administration does not have the constitutional authority to change the law and overthrow precedent by fiat…which is what they have done here.
