Public Nuisance

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Monday, June 17, 2002
 
More on Enemy Combatants
Demosthenes and Jeff Cooper have both spoken kindly about my earlier post discussing ways of dealing with terrorist suspects.

Mr Cooper, incidentally, is a law professor. I'm certainly flattered and pleased to find my thoughts on a legal topic being complimented by a real expert. Regrettably, however, Mr Cooper doesn't drive quite as many hits as certain other law professors/bloggers who still have not deigned to notice the Nuisance.

One of Demosthenes' commenters, Brian, (who has his own blog, but who doesn't) was less positive:

I think what's missing from this idea is the status of the defendant as an enemy combatant. Civilian rights should not accrue to enemy combatants, whether or not they happen to be US citizens.

The dual track suggested here, either a civilian court or a military tribunal depending on the sensitivity of the evidence, ignores the fact that we wouldn't want a wartime enemy tried in a civilian court even if all evidence against him were already public.

I do agree that oversight of the executive branch will be necessary in the long term.

Brian and I might not be that far apart. I agree that when a person is clearly an enemy combatant, that person can be held outside the regular justice system. To allow this for US citizens is a step on the slippery slope, scary, but probably acceptable under the circumstances. They can be treated as Prisoners of War and have the rights accorded under the Geneva Conventions - in this case, relatively few rights because they are illegal combatants and not true POWs.

I would tend to agree that if you can demonstrate the intent to act as a combatant for al Qaeda or similar groups, it is less important to demonstrate specific overt acts. Maybe it isn't even necessary at all, but it does seem if you're saying somebody is a part of al Qaeda, you ought to be able to show some sort of specific act in furtherance of some kind of terrorist intent.

The key question is how you determine who fits into this category. The Bush administration answer seems to be: anyone we say. That's clearly unacceptable, and Brian, by agreeing to the importance of oversight, appears to agree.

I think at least US citizens accused of being such combatants are entitled to some sort of legal proceeding to determine if the label is justified. Which gets us back to some kind of adversarial process that might resemble the one I described.

Atrios cites a recent column by Lawrence Tribe, who also is possibly better informed on the technical legal issues than myself, and there is some related discussion by that other professor.

It does seem to me that all of us are agreed here on the broad points, as odd as that may be for a bunch of bloggers. That is, we all agree that enemy combatants are not necessarily entitled to the full Constitutional rights of a normal US criminal proceeding. And we all agree it is unacceptable for agencies under the executive branch to have unchallenged or absolute authority on who is considered an enemy combatant.




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