Greg Krehbiel
How do you qualify as an “enemy combatant”?
by Greg Krehbiel on 22 January 2010
Some on the right are upset that the underwear bomber is being treated as a criminal rather than an “enemy combatant.”
Criminals have Miranda rights, get a government lawyer and so on, but who knows what rights “enemy combatants” have.
ISTM there are two ends of the perspective here. On one side, there are people the U.S. has to detain from time to time to whom we should not extend the rights of American citizens. People captured on the battlefield may fall into that group.
On the other hand, if someone commits a crime on our soil, it seems that the normal criminal rules should apply. I’m not saying this because I give a r.a. about Sheik Underpants, but because I don’t want to give law enforcement the option to side-step all the rules and simply declare that they don’t apply to some person.
We agree to hand over certain powers to the government only on the condition that those powers are carefully constrained and monitored. This is why police brutality is such a big deal. It doesn’t make any difference if the guy the policeman is beating up deserves it a hundred times over. We simply can’t allow that use of power.
Miranda rights may be a bother, but … sorry, that’s just the way it goes. The point is not so much that the accused has rights (although that’s certainly true), but that we want to keep an eye on the police (and the FBI and Homeland Security all the other guys we authorize to handle such things).
Some on the right will scream about limited government when it comes to education or health care or something like that, but they’ll want to give almost unlimited power to the really dangerous guys — the ones with guns who can arrest you and lock you up.
2010-01-22 » Greg Krehbiel
22 January 2010 @ 10:23 am
I agree almost completely. I would add that it has been law enforcement techniques and technologies that have thwarted attempted terrorist plots, not military action. And if you can’t get a conviction legally, respecting the human rights of the accused, you’re out of luck. Otherwise, we are all in danger of wrongful imprisonment.
Also, there is this.
22 January 2010 @ 10:55 am
I agree, I’m not quite sure what the definintion of “enemy combatant” is. Maybe he does qualify. If we had a clear definition there wouldn’t be so much controversy.
I think the concern is that we could have gotten a lot of valuable information about the terrorist network. However, that’s what plea bargains are for. We do it all the time. “Right now you’re looking at life in jail. Tell us everything and we’ll make it 25 years.” He doesn’t seem like the hardened type that would require waterboarding.
22 January 2010 @ 11:09 am
Yes, but what seems scary about all this is that a growing number of people seem to believe that “we need information” trumps other concerns — human rights on the one hand, or limitations on the power of government on the other.
23 January 2010 @ 1:42 am
I find the focus on location and not on citizenship in this post surprising. It would seem to me that the citizen/non-citizen distinction between whether the usual criminal defense rights attend to a terrorist makes sense both in theory and in practice — at least as long as the number of citizen terrorists is low. It also seems more natural than the “on our soil”/”not on our soil” distinction.
I also worry that those who seek to extend criminal defense rights to terrorist suspects if they happen to cross the border (e.g. if Atta had survived) to protect the rights of everyone are going to have exactly the opposite result.
If the political class has the following options: (1) letting a terrorist go, (2) giving Al Qaeda access to information about how we’re tracking them during discovery (which has already helped AQ, as during the prosecution of the first WTC attack) or (3) pushing for new restrictions on how much information about the evidence-gathering process can be made available to an accused, then over time they’re going to find that the third is the least bad. And that will apply to all Americans much sooner than you think.
Of course, I’m not an American, so this is a trade-off you guys will have to decide. It does seem to me that an arrangement where you voluntarily give your intelligence information to the bad guys when you don’t have to is, frankly, crazy.
Although I’m about as pro-America as it’s possible to be, there’s definitely a strange rather parochial view taken by people both on the left and on the right when it comes to your political and legal systems, where you identify the various components of the strange patchwork of compromises and trade-offs you make as somehow necessary to a free and open democracy. (This really annoyed me during the debate over the electoral college during the Bush election, where a lot of the American left described it as fundamentally nondemocratic for the popular vote winner not to become the president. Not only does Canada not have a president, we don’t even have a vote on the prime minister, and we’re a representative democracy just fine, thank you. Please don’t confuse the rules of your league with the nature of the sport.)
I think this problem appears here, too: JK’s insistence on “respecting the human rights of the accused” is *not* equivalent to “obeying the more-or-less arbitrary collection of rules — some brilliant, some stupid — evolved by the American political-legal establishment in the hopes of respecting those rights”. It’s both silly and vaguely insulting to equate them.
23 January 2010 @ 9:54 am
Perhaps an assertion that the American system is the only way to respect the rights of the accused is silly, in fact I’m sure it would be. But the fact remains that anybody can be accused of a crime, and that police and other “investigators” are very good at getting people to say incriminating things.
Torture is an exquisitely effective tool to get people to say what you want them to say, and Dubya (through John Yoo) notwithstanding, there are techniques that are de facto torture that leave no marks.
But look at the video at this site. If it doesn’t cause you to worry when a cop asks an apparently innocent question, nothing will.