LETTER TO THE EDITOR OF THE NEW YORK TIMES

BY CINCINNATUS

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To the Editor of the New York Times Editorial Page:

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In Response to "What's Our Line" by Michael Kinsley.

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Michael Kinsley unnecessarily complicates the issue of detention vs. constitutional protection in the realm of anti-terror policy by arguing for the US border as a line of demarcation. Furthermore, he casually glosses over the fact that the United States is in fact at war with al Qaeda and other organized non-state actors by his suggestion that treating such non-uniformed enemy combatants (acting in clear violation of the Geneva Convention) caught on American soil as prisoners of war is a "judgment call."

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I'll take the opportunity to clarify the issue for Mr. Kinsley. Foreign nationals that we are fortunate enough to detain on American soil prior to carrying out acts of terror warrant detention and interrogation, not constitutional protection. Doing so is to confer upon them a frivolous privilege, not a fundamental right. Mr. Kinsley equates Timothy McVeigh and Nidal Hasan with Umar Abdulmatallab and Khalid Shaikh Mohammed. This is not an apt comparison. McVeigh and Hasan were US citizens and, despite the acts they committed, were and are entitled to constitutional protections, including the right to an attorney, a civilian trial and the right to remain silent. Furthermore there is little evidence that McVeigh or Hasan were acting in concert with organized state or non-state actors or carrying out attacks as part of a larger conflict being waged against the United States. Is drawing such a line "absurd," as Mr. Kinsley suggests?

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Clarity should be brought to the debate over civilian trials for captured enemy combatants as well. The concern is not chiefly that obviously guilty mass murderers will be let off on a technicality, although that is a remote but ugly possibility (particularly when suspects who had previously been held as enemy combatants are brought into civilian court), but that it misses a vital chance for intelligence gathering by allowing the suspects to hide behind the Fifth Amendment. When an opportunity to interrogate a terrorist who has either been detained prior to or, God forbid, after carrying out an attack on the United States presents itself, it should be taken. These individuals can provide some of the most crucial, usable intelligence available that will save lives.

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As American citizens we must demand that our government maintain a coherent, consistent strategy to fulfill its constitutional obligation to protect us. Calling the means at hand to combat the existential threats to our liberty "absurd" is not useful, and suggests a lack of seriousness on the part of the one who does so.

A CONSISTENT ANTI-TERROR POLICY, PLEASE

BY CINCINNATUS

Charles Krauthammer penned an op-ed on Saturday that brilliantly illustrates the ridiculous dichotomy of the current administration’s anti-terror policy. This insight gives one an impression of a tangled and inconsistent approach to combating violent extremism that warrants a dramatic overhaul.

Krauthammer points out that, under the current administration, foreign nationals detained on American soil for participating in acts of terrorism, be they preparatory (collecting bomb-making materials) or final (setting off a failed explosive device aboard an airliner), have been accorded Constitutional protections, among which are the right to an attorney, the right to remain silent, and the right to trial in a civilian court. This is illustrated by the gradual “decommissioning” of the Guantanamo Bay detention facility, as well as the treatment of Umar Farouk Abdulmutallab, the would-be “Christmas Day Bomber” now in custody.

In stark contrast, the Obama administration has opted to continue in large part the policy of the Bush administration in its contingency operations overseas; that is, capturing or killing those involved in acts of terrorism, be they preparatory (training camps) or final (setting off bombs in crowded marketplaces) by use of military force. American predator drones routinely end the careers of up-and-coming jihadists in countries such as Pakistan, Afghanistan, Iraq and, as we now know, Yemen. Those extremists who are captured are turned over to American military or intelligence officials for exhaustive interrogation and indefinite detention, whereby they are squeezed like a proverbial lemon for every drop of usable intelligence they can provide. There are no lawyers, and there is certainly no Fifth Amendment.

So what accounts for the radically disparate treatment of extremists unfortunate enough to be operating in Pakistan and extremists lucky enough to be caught in the act on American soil? Some argue that anyone, be they American citizens or foreign nationals, is protected by our Constitution as soon as they set foot in the United States. But that is a separate debate that misses the point entirely. When talking about foreign national, violent extremists apprehended on American soil, one has to ask themselves the fundamental question of whether they believe the United States is at war with terrorism. If the answer is yes, then not only American but international legal precedent is clear: it allows for the military detention of these individuals, as they have clearly violated the terms of the Geneva Convention by targeting civilians and waging war out of uniform. If we choose to extend non-US citizens apprehended in the United States for acts of terrorism Constitutional protections, we are granting them a frivolous privilege, not a fundamental right.

The bottom line is that the administration needs to choose whether it treats terrorism as a law enforcement issue or a national security issue. It cannot, unfortunately, have it both ways. The United States must be consistent in its battle with violent extremism, not conducting military detentions overseas and civilian trials in the US. The current system is illogical and unsustainable, and it betrays President Obama’s discomfort with having to deal with the issue at all.