Read/React: "Don't Call It A 'Law Enforcement' Approach"

In terror trials, military courts aren't necessarily better than civilian.

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One of the arguments Republicans make about Obama's decision to try some terrorists in civilian court or his bid to close Guantanamo Bay is that he treats terrorists like "ordinary criminals".

This criticism doesn't stand up to scrutiny. It's true that Obama has decided to try some terrorists in civilian courts, but there's a reason for that, civilian courts have proved to be an effective venue for trying terrorist suspects, while the military commissions beloved by Republicans have proved to be ineffective and may yet prove unconstitutional. The administration has nevertheless chosen to use them anyway when the government's case against a given suspect is weak. The point of using the civilian courts is to lend the proceedings the kind of international legitimacy an ad-hoc military system of justice simply can't.

It's true that the FBI appears to have taken the lead on interrogating terrorist suspects, but that's because the FBI has the most experienced counter-terrorism investigators in the business. The Bush administration's apparent aversion to actually collecting and organizing the evidence against some detainees puts the government's ability to hold even those that should be held in jeopardy, and placed those who shouldn't in limbo. That's not toughness. That's incompetence. Obama wants to close Gitmo yes, but the administration will continue to hold at least 50 Guantanamo Bay detainees without trial or charge, based on the idea that the U.S. is at war with al-Qaeda.What's the big difference?

Drone attacks, supposedly targeted at al-Qaeda leaders, deluge Pakistan and Yemen, leading to considerable civilian casualties. According to Dana Priest, the administration has authorized the military's Joint Special Operations Command in Yemen to assassinate al-Qaeda targets in Yemen, even when they are U.S. citizens. It's not clear that either of these actions are legal, but as long as they remain behind a veil of secrecy, they can't be scrutinized.

There is a consistent theme here, but it's not one of law enforcement, and it has little to do with morality. Rather, the administration is making unilateral judgment calls about when the law applies and when it doesn't, based on strategic considerations. He's closed Guantanamo and banned torture because he believes those things to be strategic liabilities, not because it's "the right thing to do" or because the law says so. The decisions the administration has made on national security only make sense if you them place within a strategic "war" framework, in which largely superficial peans to the rule of law appear to be just another tactic.

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Sept. 19 2014 8:34 AM