Pundits seem to have very negative opinions about the recent Presidential Directive on legal jurisdiction. So much so I wonder if anyone has actually read the document. I have and I cannot find anything particularly damning. It places captured enemy forces under military rather than civilian law. The directive is carefully targetted at al Qaeda and only non-citizen al Qaeda at that. So why the fuss?
Perhaps the answer lies in history. The directive is quite a normal one for a country at war. It would once have seemed so obvious a need as to be hardly newsworthy. The difficulty is the United States has not fought a normal war, to an end condition of total victory, since World War II. That is over half a century ago. Most of those who would understand the necessity of it are retired or no longer with us.
Make no mistake, this is a war. The al Qaeda are our enemy every bit as much as the Nazi Party of Germany was our enemy. I cannot imagine Himmler and Goering being tried in front of a “normal” court; nor can I imagine bin Laden (assuming the lads who find him constrain themselves from carving him into Purina Pig Chow) being given a New York defense lawyer and allowed to fight a 10 year court battle. He and his people are not just ordinary killers. They are not just ordinary terrorists. They are the founders and leaders of a distributed military force that declared the annihilation of the United States as a religious duty. They have proven their words in deeds.
Given that bin Laden publicly declared war on America in 1996 and has since had his troops carry out military actions against the United States, it behoves us to treat those forces no differently than any other military force in any other war. That means captured soldiers are treated under the Geneva Convention. There is another side however. We will define certain members of al Qaeda not simply as terrorists, but as war criminals writ large. Even if we ignored every other attack by al Qaeda and called them normal military actions, even if we ignored evidence about TWA800; even if we ignored the thousands of African civilians killed and injured by the attacks on US Embassies… we are still left with September the 11th.
There is no doubt, under any sane interpretation, ramming large civilian airliners into giant civilian office towers while faced with a totally unpreperared populace is a war crime of an obscene magnitude.
Because al Qaeda operate as a co-ordinated and trained military force, much of the information we have on them comes via classified means rather than normal public criminal investigations. Criminals and mere terrorists can be tracked down and tried over time; an army must be dealt with differently. We know we cannot catch them all, at least not all at once. It behooves us to not allow yet to be captured enemy forces to learn from our court transcripts.
We simply cannot afford to hand them such valuable intelligence. If they understand our most secret technical means they can more readily avoid them; if they know our channels of information they can act to disrupt or inject false information into them; if they know our informers they will kill them.
A military tribunal is just right. The al Qaeda declared war; therefore they are enemy soldiers. We will try them with reasonable fairness and perhaps somewhat more mercy than they would give were the tables turned. But mark my words: those directly responsible, those directly in the chain of command that extends from the burning rubble of the World Trade Center to the caves of Afghanistan are going to swing at the end of a stout rope. It may take 10 years to round them up; but it will only take a few months to finish the job.
