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The Case Against EBIDPA

March 22, 2010

Over at Cato, David Rittgers has a follow-up post on the McCain-Lieberman bill that would mandate that all terrorism suspects be detained in military custody rather than going through the civilian system.  I kind of did him an injustice in my last post because I basically took his argument, which I gather was intended to aver that this bill is a really bad idea, and argued that we shouldn’t mix war policies with criminal policies.  I maintain what I said, but Rittgers is right: This bill—which is just casually called the Enemy Belligerent, Interrogation, Detention, and Prosecution Act of 2010 and just sounds like it violates all sorts of civil rights with its way-too-aggressive moniker—is a really bad idea.  Maybe not health-care reform bad, but still bad.  Rittgers explains:

This bill is a bad idea for several reasons. First, for the points that I made in my previous post, the civilian criminal justice system successfully incapacitates domestic terrorists. Our laws are built to do that — it’s the international nature of al Qaeda and the necessity of military force in the expeditionary conflicts we are fighting that make things different. Second, I doubt that this policy will be seen as a bonanza for domestic counterterrorism, and the agencies responsible tasked with using military detention won’t actually have much use for it. Third, and most importantly, detaining American citizens minus a suspension of habeas is unconstitutional and will be held so in court.

Yeah, this doesn’t fly even on a surface level.  Attempting to convince me that it’s okay to put an American citizen into military custody because he’s suspected of committing a crime is going to be a monumental task on somebody’s part.  And, as Rittgers makes clear, it’s probably not even a good idea logistically.  That said, I still want to stress that the issue is not what we can do, but what we should do.  Rittgers clarifies that, in this case, it is what we should do:

The bottom line is that this bill mandates treating all terrorist attacks as acts of war and not criminal violations, when some are clearly both. It isn’t bad policy because there is no justification for military force — there is — it’s bad policy because it prohibits a pragmatic legal response to terrorism. If the law enforcement paradigm gets results for the threat, use it. The same goes for the military paradigm. But let’s not pick one over the other for the sake of domestic politics.

It really is a very bad idea.  The reason that blanketing members of an organization with which we are at war under the quilt of the criminal justice system is a bad idea is the same reason that blanketing suspects of a particular crime under the quilt of military detention is a bad idea.  We should always try to keep the two systems separate, if only for the sake of the justice system, but going all-or-nothing on this subject in the interest of domestic political issues seems pretty foolish.  Crimes are crimes and war is war.  Let’s not bring the war here—our justice system is already too delicate as it is.

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