If Khalid Sheikh Mohammed and his cronies wanted to undermine America’s democratic faith, they couldn’t have found a better plan than to get themselves arrested and force us to figure out what to do with them. Where to put these guys is one of those questions, like the ancient riddle of the Sphinx, that has no answer and exists only to drive us mad. And it will if we let it.
Two administrations have now struggled with the puzzle. Each has devised a solution that it deemed effective and morally sound. Both solutions reflect nothing so much as the ideological predilections of their sponsors. And neither solution holds water.
The Bush administration chose to treat the detainees as enemy combatants, albeit illegal ones, and to try them under a jury-rigged system of military commissions. The system was designed to ignore elementary rules of due process and rush the captives to the justice they deserve, assuming we’ve got the right guys. After the Supreme Court ruled it illegal, Congress concocted a new system, adapting the same model with better protections.
The thinking was that the captives weren’t common criminals answerable to civilian justice, but military enemies fighting against America and subject to battlefield justice. Lacking the uniform of a sovereign state, however, their war was inherently illegal and put them beyond the ordinary protections of military justice or the laws of war. Hence, illegal enemy combatants.
The Obama administration wants to try the suspects in recognized courts. It seeks to end the Bush system’s illegalities and restore the rule of law. Those who fought American troops in battle will face military tribunals, with better due process to approximate the Uniform Code of Military Justice. Those who conspired behind closed doors to plan the attacks will be treated as criminals and tried in civilian courts.
This administration aims to restore America’s reputation as a democracy governed by the rule of law, not the caprice of its rulers. It wants to show the world that our democracy is fair and just, even to our enemies. It wants to show doubters at home that our constitutional system is capable of defending us without vigilante tactics.
The discussion so far has broken down along predictably partisan lines. This is too bad, because both sides are partly right. Each side gets something that the other side misses.
Liberals are right that we can’t defend democracy by dismantling it. Yes, America’s wars have nearly always been accompanied by some government intrusion on civil liberties in the name of security. Perhaps that tension is inevitable. But past wars always ended at some point. The campaign against Al Qaeda and its kin is likely to continue for a long time. Any rights suspended now are probably lost.
On the other hand, conservatives are right that trying Al Qaeda leaders in criminal court in New York right now is an invitation to disaster. For months every building, monument, bus and subway station in the region will be a potential target. Anti-American protesters will rally globally, and their noise will drown out whatever propaganda benefit our democratic display was to provide. Indeed, the display itself will be tarnished by the defendants’ prior treatment in detention. Either the case is thrown out on procedural grounds, which would be a terrible setback, or the court will suspend so many rules that the democratic display will be hollow.
On a deeper level, though, both sides are missing a crucial question that doesn’t yet have an answer. Neither of the existing systems of justice, military or criminal, applies to those taken prisoner in an international war against terrorists. The military code and the broader laws of war cover soldiers fighting under the command of a state waging a legitimate war. Wars eventually end and the soldiers go home. The Geneva Conventions don’t mention a life sentence for serving one’s flag. Nor do they envision an enemy who has no intention of honoring the conventions.
But the criminal justice system is designed to punish individuals who knowingly break the law. It can’t stop an army of warriors fighting under the banner of an organized cause. The fighting gets ugly. The methods of interdiction usually aren’t the sort that would hold up in an American court. And the warriors just keep coming, because they believe they’re in the right.
Democratic courts of law hardly have a record of stopping large-scale insurgencies. Domestic insurgencies tend to either succumb to brutal repression — think of Argentina or Chechnya — or end when the insurgents become the government, like Fidel Castro, Nelson Mandela, Menachem Begin and George Washington. As for a transnational terrorist insurgency with millennial goals like Al Qaeda — well, there’s been nothing quite like it. Some theorists compare it to piracy. But pirates roam the sea for personal gain. They can be eliminated or deterred. They’re not ready to die for a cause.
There is no model for fighting international terrorism, because it’s something new under the sun. Our leaders have been making strategy on the fly, stretching existing laws beyond recognition or simply ignoring them. We’re now running up against the limits of that legal vacuum. If this is the new world we’re going to be living in — as it seems — then we’d better start thinking together about how we want to live in it.
Someday, we might want to try people like Khalid Sheikh Mohammed in The Hague. In the meantime, how about Montana?
Jonathan Jeremy “J.J.” Goldberg is editor-at-large of the Forward, where he served as editor in chief for seven years (2000-2007).