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Terrorism Is a Crime, But War is War

March 16, 2010
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Like I said in my last post, I’m not completely immune to the fact that we tread a fine line by waging war against a stateless, non-uniformed enemy such as al-Qaeda.  That’s why I think the “War on Terror” is so silly—it’s pretty difficult to wage war against something that is inherently a crime.  You can’t wage war against murder or robbery or tax evasion, and you shouldn’t be able to wage war against terrorism.  The President has realized this—instead of committing our military to defeating a crime, we have clearly defined our enemy and are waging war thusly.  Unfortunately, it remains unclear whether terror suspects should be tried in civilian trials or in military commissions.  I have argued many times that al-Qaeda operatives accused of war crimes should be tried by military commission, lest we risk undermining the war effort and damaging our own legal system all at the same time.  Terrorism in general, however, should not be something that is automatically handled militarily because you have to know who you’re fighting before you can declare war on them.  We haven’t declared war on Joseph Stack, have we?  Now, I say all that to preface this: Over at Cato, David Rittgers makes the case against domestic military detention:

Take the case of Ali Saleh Mohamed Kahlah al-Marri. After the 9/11 attacks, the FBI arrested al-Marri, an exchange student at Bradley University in Peoria, Illinois. The government alleged that al-Marri met with Osama Bin Laden, was working with senior al Qaeda organizers, had a more-than-casual interest in poisons, and was told by his handlers to be in America before September 11th or to forget about executing his mission here.

Terrorism, even when it can be viewed as an act of war perpetrated by a sleeper agent such as al-Marri, inherently breaks laws. Al-Marri arrived in the United States with a suitcase full of credit card numbers and set up a false business entity and bank accounts to finance his mission.

Well, yes.  Of course terrorism breaks laws—it is… illegal.  The government charged al-Marri with various crimes that, all told, added up a 146-year sentence, which apparently could all draw very easy convictions.  You may have already guessed that he didn’t get quite that much.  What happened?

Before al-Marri’s trial, the government removed him to military custody and asked that the charges against him be dismissed with prejudice (meaning that they cannot be re-filed upon his release). He remained in a naval brig in South Carolina as lawyers fought over his continued detention without trial. No military commission was ever planned for al-Marri. This was a power play to establish the precedent that terrorism suspects could be held indefinitely without trial, and the government asserted at oral argument before the 4th Circuit that the process al-Marri received is what any American citizen would receive.

The Supreme Court agreed to review his case, prompting the Obama administration to move al-Marri back to the civilian criminal justice system in early 2009. The government re-indicted al-Marri on two counts of material support of terrorism (maximum sentence of thirty years). He pleaded guilty to one count and received eight years. The judge was barred from officially giving credit for time served in military custody, but a fifteen-year sentence minus six years and change for being in military custody is what he received.

The al-Marri case was not a success. He should have been locked up for the rest of his life, but cramming a set of civilian crimes into a case for military detention failed to protect national security and provide justice.

Okay, this case was an abject failure.  I’ll admit that.  I won’t admit, however, that this is a good enough reason to mix our criminalization of terrorism with our war against al-Qaeda.  The feds “alleged” that al-Marri was in contact with some al-Qaeda brass, but they didn’t capture him on the battlefield or subdue him while he was trying to blow himself up on a plane via a bomb in his underpants.  They didn’t know he was al-Qaeda.  They did, however, have evidence of “fraudulent use of a false identity, three counts of bank fraud, making false statements to FBI investigators, and credit card fraud.”  Of course a military commission wasn’t planned for this cat—he didn’t commit any war crimes as far as I can see.  He was supposed to be a test case for indefinite military detention against terrorism suspects, and that didn’t work out quite so well.  And it shouldn’t have!  If he’s suspected of terrorism, then he should be indicted for the crimes he’s committed.  If he’s accused of being an al-Qaeda operative, then he should be indefinitely detained as an enemy in a war.  We don’t have to pick and choose which rules we want to use so we can get these guys behind bars—in fact, that’s precisely what we shouldn’t do in order to avoid potentially disastrous “is he, isn’t he” situations.  If we know he’s working with al-Qaeda, send him to Gitmo (or Illinois, or wherever our would-be-EPW camp is going to be).  If he’s simply a suspected terrorist doing some terrorist stuff, like we knew al-Marri was doing, then arrest him for the crimes he’s committed.  I don’t see any conflict there.

This is why we define our enemy.  Let’s put terrorists behind bars, and put our enemies at Gitmo.  I like our legal system as it is—let’s not allow a bunch of jihadists to screw it up.

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