Fighting the ...?

This may surprise no one, but I've never had a problem with the U.S. prison at Guantanamo Bay, Cuba. The great outcry against the facility is borne of luxury. By luxury I mean the tremendously good fortune we have enjoyed since 9/11 in the form of ZERO major terrorist incidents on American soil.

7 years ago we didn't have that luxury. We didn't have years to feel safe, to feel like so much of the Bush administration's response was overreach and overreaction. Now we look back, and despite government statements that attacks were planned and averted we find ourselves repudiating the actions of the previous administration. I hope we continue to know such luxury. The Israelis certainly don't know it. They live in a state that is perhaps more measured and controlled than what we could attain in similar circumstances.

As David Rivkin and Lee Casey point out in this Wall Street Journal Op-Ed, we should be concerned less with the actual closure of Gitmo and more on how the Obama administration plans to prosecute the war on terror (or whatever they choose to call it).

What Mr. Obama's national security team will quickly discover is that the civilian criminal-justice system is an inadequate tool to deal with terrorists. President Bush's policies -- particularly treating captured terrorists as unlawful enemy combatants and employing a military court system to try them -- were dictated by the very real need to defend American citizens, not by disdain for the rule of law.

The Bush administration chose the law-of-war paradigm because the international law of armed conflict gives the U.S. maximum flexibility to meet the jihadist threat, including the right to attack and destroy al Qaeda bases and fighters in foreign countries. The alternative legal framework, the civilian criminal-justice system, is unsuitable for several key reasons. Civilian criminal suspects quite obviously cannot be targeted for military attack. They can be subjected only to the minimum force necessary to effect an arrest. They cannot -- consistent with international law -- be pursued across national boundaries. And finally, they are entitled to a speedy trial in a public courtroom. These rules cannot be ignored or altered without constitutional amendment.
In addition, the type and quality of evidence necessary for convictions in civilian courts is simply unavailable for most captured terrorists. One federal district judge recently concluded that although the government's information on one detainee was sufficient for intelligence purposes -- that is, he presumably could have been targeted for deadly attack -- it was insufficient to hold him without trial.

So we are right to ask how the new administration will deal with captured terrorists. The news about Guantanamo's closure had brought with it various reports of released terrorists who are now more prominent in their organizations and very involved with ongoing terrorist efforts. Will this become a recurring theme? Will the only options our military have be to (A) Kill the target rather than allow him to be captured and then freed, or (B) Capture the target knowing that he may profit from the generosities of a civilian criminal court system that was never intended for him? The American people deserve better. As the authors enumerate our military deserves better.