Another Perspective

Gotta Know When to Hold ‘em

... and when to give enemy combatants a hearing.

By 6.15.07

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This has been quite a week for studying the philosophical fault lines between law enforcement and the military. It began with millions of Americans, not all of them blondes absently stroking French poodles, riveted to the scene of Paris Hilton one moment holding court in her house and the next being held in a courthouse. She chided these rubberneckers in a note suggesting their attention should be better spent on the plight of leathernecks in Iraq.

The second such conflict between the judicial and martial theaters occurred in a federal courtroom, where it was decided that the government was without its rights in detaining indefinitely a legal American resident as a presumptive "enemy combatant." Frankly, the court was right in that particular case, but some bad law will likely ensue. The powers that be should never have gotten themselves into this predicament; the executive branch overreached, as it often does, and will in turn overpay.

Here is the scenario. They pick up a guy -- licitly here, with five kids -- and determine, after checking his computer, that he has al Qaeda ties. This is back in 2003. So they lock him up and throw away the key, even coming to court four years later to argue the law allows them this latitude. (In government work, latitude is the best attitude. Unless you're a spokesman, in which case platitude is the best attitude.) They lost, as well they ought to have.

If you are given a right in special legislation to hold enemy combatants without trial for indefinite periods, that should be used very sparingly. If a 9/11 hijacker survived, if men are caught with a huge arsenal and maps of the New York subway system mounted on easels, if a guy had shoe bombs and a short fuse, those are prime candidates for "combatant" treatment. Eventually some sort of resolution should kick in -- remember, we are not managing brigs full of Germans and North Koreans or even North Vietnamese -- like, say, try them within five years or deport them.

This sort of treatment, albeit harsh, could be defended in debate, whether on CNN or before the federal judiciary. Applying such strictures to a guy who never fired a shot, wore a uniform, cached explosives or held a hostage, is obviously unworkable. You don't need to get an ACLU card to get a clue.

Is it a conservative position to advocate for this sort of open-ended discretionary limbo? Before you answer that, remember that any principle you posit must be compatible with the management style of the Hillary Clinton administration. Should the President have such power? And it's not really even the President who will make the call, it's whichever cop-qua-bureaucrat-qua-intelligence-officer-qua-special agent (read: Moose-qua-Armitage-qua-Plame-qua-Hansen) signs off on these things in the new one-size-fits-all homeland security apparatus foisted upon us by the 9/11 Commission.

Don't get me wrong. We are proud of, and grateful to, the various streams of federal law enforcement and military and intelligence which have collaborated in keeping us free of attack the past six years. We appreciate their need for "tools," hopefully not the kind that extract fingernails. But to clap a guy into a restrictive cell for four years without any hearing to prove he was in an active cell is way overboard. If you are the type of conservative who resents the creeps who call us fascists, this should not be to your liking.

This excess gave the court access and the bad guys success. Now it will become exceedingly more difficult, well-nigh impossible, to sweat the for-sure troublemakers. Once the bean-counters get involved, very few beans get spilled. Tomorrow we can pick up a fellow with an al Qaeda bumper sticker ("It ain't over until the fatwa lady sings!") and a truckload of Timothy McVey signature fertilizer and a judge will habeas his corpus back onto the street before the delicti can deliver the salami sandwiches.

For a law like this to stand, to even be defensible, there must be some preliminary hearing before a meaningful tribunal or magistrate, and there should be a put-up-or-put-him-out time limit . Oh, and by the way, how much ya wanna bet that a certain California jail cell will be nicknamed the Hilton long after the inmates can even recall why?

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About the Author

Jay D. Homnick, commentator and humorist, is a frequent contributor to The American Spectator.