Obama's Military Tribunals

The Wall Street Journal comments on something that appears to have been lost on Liberals in the discussion of the Bush policies regarding captured enemy combatants.

President Obama's endorsements of Bush-Cheney antiterror policies are by now routine: for example, opposing the release of prisoner abuse photographs and support for indefinite detention for some detainees, and that's just this week. More remarkable is White House creativity in portraying these U-turns as epic change. Witness yesterday's announcement endorsing military commissions.

White House officials insist that their tribunals will be kinder and gentler, stressing additional due-process safeguards for terrorists on trial for war crimes. But the debate that has convulsed the political system since 9/11 isn't about procedural nuances. It has been over core principles, with Democrats decrying a "shadow justice system" and claiming that "Our Constitution and our Uniform Code of Military Justice provide a framework for dealing with the terrorists."

Let me add to that.

One definition of insanity is an ability to hold two opposing views at the same time.

One view is that the Geneva conventions apply to the people we capture as enemy combatants and they deserve to be treated as soldiers. And one of the protections afforded by the Geneva conventions is that soldiers cannot be tried in civilian courts. Even opponents of the way Bush handled the situation agree. Here is George P. Fletcher who is Cardozo Professor of Jurisprudence at the Columbia University School of Law.

And if they were combatants, then by the rules of international law we were not entitled to try them for acts committed in the pursuit of legitimate aims of war. As Chief Justice Harlan Fiske Stone wrote for the Supreme Court n Quirin: "Lawful combatants are subject [only] to capture and detention as prisoners of war by opposing military forces." The reason for this rule lies in the general understanding that a soldier is simply a servant of the state. He does not do anything in his own name. He cannot be held personally liable for the ravages of war.

The second view is that they are not soldiers but criminals. Those holding this view are often seen citing the Geneva Conventions as if those applied to common criminals. But if they are criminals they cannot be convicted under US law because their interrogations were not preceded by Miranda warnings. In fact most of them were apprehended on foreign territory over which Americans do not hold jurisdiction. They were not properly extradited. They were not given a speedy trial. If they are criminals they should all be released because their civilian trials would be an obvious farce.

But we still have the Left, struggling – like Nancy Pelosi – trying to reconcile two irreconcilable things: they are both criminals and lawful combatants having all the protections of Geneva and the US criminal justice system.

The Bush administration took the position that they were not soldiers. According to Fletcher to be a soldier meant that

“among other things, that you had to wear a uniform, fight with your company, and cease fighting when the army surrendered.”

This is not the opponent that we are fighting now.

To handle a new kind of enemy, Bush found a new framework, handling them neither as criminals not as enemy soldiers. Since they could not be tried as criminals and the possibility existed that holding them until the cessation of hostilities may be a very long time, he provided for humane treatment and also for a legal system that would allow them to be released before the end of hostilities if they were judged not to be a threat.

The WSJ editorial ends:

Meanwhile, friends should keep certain newspaper editors away from sharp objects. Their champion has repudiated them once again.

But who can know what's in the hearts of the giggling girls in the press corps? They adore him and that won't change.