Continuing conservative America’s latest trend — selectively remembering everything that happened before January 20, 2009 — RedState’s Erick Erickson today excoriated President Obama for daring to try the Christmas Day bomber, Umar Abdulmuttalab, as a criminal, because these proceedings will entitle him to a lawyer, and the right to reach a compromise with prosecutors through a plea bargain. According to Erickson,
Bush decided to send foreign terrorist enemies to GTMO for questioning by the military and, in a few cases, to be water boarded to get answers.
Sure. But Bush also saw to it that Richard Reid, the “shoe bomber,” whose situation most closely matches that of Mr. Abdulmuttalab, was tried in federal court and sentenced to life in prison without parole, where he remains to this day.
RedState distorting history isn’t new, and it isn’t really that exciting. But the question of whether we should try terrorists as criminals is interesting, and deserves an answer. The issue is essentially this: what paradigm should we use to fight terror? The warfare model, where detainees are treated as prisoners of war (or less), or the crimefighting paradigm, where detainees are entitled to the full protections of the criminal system?
Erickson’s fault, one duplicated by players on the right and on the left, is assuming that there must be one easy answer. There can’t be. Facts on the ground in Afghanistan most closely match a real shooting war — even if the enemy isn’t necessarily a state actor, day-to-day life comports with a traditional state of war. Accordingly it’s quite natural to expect that, on the battlefield, soldiers will (and should) shoot first, and detain prisoners with something less than the protections afforded criminal defendants.
On the other hand, settled law prevents the warfare paradigm from operating on American soil. In Boumediene v. Bush, the Supreme Court held that terrorists must be afforded some level of due process, depending on the exigencies of their particular situation, but always entitling detainees held within American sovereign territory to seek a writ of habeas corpus, or a similar instrument. Similarly, since President Lincoln’s time, and the Posse Comitatus Act, the army has had no law enforcement power on American soil. Violations of American laws on American soil are criminal acts thats, when the harm terminates or is prevented, must be redressed within the crimefighting paradigm.
To date, the crimefighting paradigm has proven quite effective to address problems like Mr. Reid, and Mr. Abdulmuttalab. Erickson assumes that lawyers and plea bargains will result in acquittals, or the release of the accused terrorist — but this assumption betrays a fundamental mistrust of the rule of law. The outcome of a criminal trial is committed to the discretion of the people (through the prosecuting attorney) and the court. The defendant plays a part, but he does not determine his own fate. Defense lawyers can offer plea bargains, and make arguments, but courts and prosecutors must accept both before either can matter. Erickson’s interpretation reads these safeguards out of the process, and treats lawyers as “get out of jail free” cards.
I expect that opinion bleeds over into a distrust of criminal law generally. If that’s the case, we may query to what extent Mr. Erickson, himself, believes in his country.