January 6, 2010

Apples, Oranges and the NY Times on Terrorism

Rather than parroting Sarah Palin's brilliant takedown of Obama and the left on combatting terrorism, I thought I'd add my own two cents on the ridiculous NY Times position on the issue.

In the NY Times today, Michael Kinsley opines that judicial trials versus military tribunals and Miranda rights for terrorists are the way to go.

Actually he raises a legitimate question before answering it incorrectly.

Republican critics like Dick Cheney and Newt Gingrich have raised these questions in the past few days. There’s a gruesome anomaly here, to be sure: the United States government will blow you to smithereens and consider it a good day’s work if you’re a Qaeda member dreaming of jihadist glory while residing somewhere outside the United States, but will pay for your lawyer if you get caught in the act within our borders. But this anomaly didn’t arise with the Obama administration. It is built into our dual role as a liberal democracy and as a legitimately aggrieved superpower.

The charms of liberal democracy sometimes need to be defended by war, and Mr. Obama’s critics are right that war can’t be conducted with a high level of concern for individual justice. A liberal democracy aspires to punish only the guilty. But war is inherently unfair — it distributes suffering arbitrarily among enemy combatants, civilians and one’s own soldiers. A line has to be drawn somewhere to determine which of these utterly different standards of government behavior is applied where — and the nation’s border is as good a line as any.
Is it really though?  I've often argued that simplicity works and the nation's borders is a pretty simple demarkation point.  But is it the best one?  Simple is good, the most simple isn't always.  Let me illustrate by way of offering a couple of alternatives.

Could the line not be drawn between foreigners and citizens of the United States?  Yes.  It's also simple.  Americans get the protection of the Constitution and foreigners do not.  It's equally arbitrary, though more harsh.  If a German citizen is in the United States and is accused of stealing a pair of pants from Sears, you can't just take him in the back room and have police officers beat him with rubber hoses for a confession.  Then again, no one suspects that would happen.  But it could.  So it can't be that simple either. 

Perhaps the line could be drawn on the basis of severity of the crime.  Non-American citizens committing misdemeanor crimes could be given the basic protections of the Constitution and for felonies those rights could be bypassed.  Or more specifically, violent felonies.  Of course if in our in German example the alleged perpetrator stabbed a clerk to get the pants, he would fall on the wrong side of the artificial line.  Should the defendant not be entitled to an attorney in this case?  Perhaps he was looking at the pants when he was assaulted by the clerk first.  Maybe that's still too simple.

How about we take it one step further.  Citizens and foreigners are entitled to Constitutional protection and due process - unless they are accused of acts of terror.  That could be defined as simply as any attempt to cause as many civilian casualties as possible in an indiscriminant fashion with respect to who the victims are (not necessarily indiscriminant with respect to time or place of the violent action).

Seems reasonably simple.  It's no less artificial than the nation's borders.  It would seem to be better from an intelligence gathering prospective.  And for those who blather on about how much of a terrorist recruiting tool Guantanamo was, how is a show trial for every failed terrorist going to play?

Where's Our Line, Michael Kinsley?  I like mine better than yours.

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