The Illusory Status of the Enemy Combatant

Over the course of the past week, we focused on the media’s dominant line of discussion about the January 8th shooting in Tucson, Arizona — namely, whether the chance of violence, made manifest by this particular madman, necessitates a nationwide reevaluation of political discourse. We answered in the affirmative and, for the sake of completeness, now acknowledge, as well, our disappointment in the rarer and smaller madmen on our side. Ear necklaces? Really? This guy’s read a little too much Cormac McCarthy.

This analysis, though, to the detriment of other lessons we can take. Here’s another. Jared Loughner, the suspect in the rampage, will stand trial for his crimes. This despite the fact that he attempted to assassinate a sitting congresswoman, and in the process, killed a federal judge. The planned murder of an elected official fits most definitions of domestic terrorism; and yet no less of a voice than Richard Epstein, writing for no less of an august publication than the National Review Online, notes that the trial, to be conducted by one of the best criminal lawyers around, will inspire “greater confidence” in the eventual guilty verdict, and prove that the system works.

We agree entirely. The system does work and will work again. But why aren’t we so sure of our convictions in other cases?

Jared will face American justice for a crime committed against the American people. And yet, but for the absence of an allegation (not proof) that Jared shot Congresswoman Giffords in furtherance of a political agenda, and the absence of an allegation (not proof) of his affiliation with a foreign power, the entirety of NRO, and every conservative politician anywhere, would be yelling, at the top of their lungs, for Jared to rot in a Charleston military brig, or in another prison cut off from civilian justice, and calling the President a coward for not making it so. Remember, the Bush administration defined “enemy combatants” based not on verifiable evidence, but on the ipse dixit of low-level State Department bureaucrats, themselves often acting only on the basis of information received from our foreign enemies themselves. Take the case of Hozaifa Parhat, held in Guantanamo Bay for three years because China found it easy and convenient to dupe the Bush administration into thinking an anti-China partisan was an anti-American partisan.

In our minds, we build up a wall between the terms “criminal” and “terrorist”; but the real world keeps knocking it down. Surely some distinction exists, and maybe even should compel restricted procedural rights for true terrorists. But we haven’t yet hit on that definition, in theory or in practice.

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