As the war on terror heats up, it becomes increasingly questionable how the FBI and other government agencies will best be able to root out "Americans" connected to terrorism. The crucial question remains: how can a free society like America, which respects civil liberties, best fight terrorism on its own soil? And what exactly should be done with "American" terrorists? Should they be tried in military tribunals or in federal court? Should they be held as POWs or as "enemy combatants"? To discuss these and other issues connected to how America can most effectively deal with domestic terrorists, Frontpage Symposium has invited Hank Holzer, a constitutional and appellate lawyer who is Professor Emeritus at Brooklyn Law School and the co-author most recently of Aid and Comfort: Jane Fonda in North Vietnam; Victor Davis Hanson, currently a visiting professor of military history at the US Naval Academy and author of the new book An Autumn of War: What America Learned from September 11 and the War on Terrorism; and Cliff May, Executive Director of the anti-terrorism think tank Foundation For the Defense of Democracies.
Question #1: Gentlemen, let me begin the discussion with this question: do you think there are there significant factual differences between American terrorists? If there are, what should be the legal consequence of those differences?
Holzer: The factual differences between the American citizens we've seen so far who are alleged to be involved in terrorism are real, and very significant.
John Walker Lindh and Yaser Hamdi were captured in a foreign country, under arms, wearing some kind of uniform, openly in league with an adversary military force.
Jose Padilla (the "dirty bomber") was arrested upon reentering the US, not armed, wearing civilian clothes, covertly in league with terrorists and terrorist organizations.
The Buffalo Six were arrested not upon reentering the US, not armed, not wearing uniforms, covertly in league with terrorists.
The Portland Six were arrested not upon reentering the US, not armed, not wearing uniforms, probably in league with terrorists.
These different facts dictate different options.
Taliban John could have been considered a POW, and his citizenship would not have shielded him from that classification. Or, because he is a citizen, he could have been, as he was, charged in a federal court.
So, too, with Hamdi. For the moment he appears to be a POW, held in a Navy brig in the United States. Eventually, because he is a citizen, he could be charged in a federal court.
POW status doesn't apply to Padilla. Nor does a military tribunal, which only has jurisdiction over non-citizens. That means Padilla is looking at a federal court.
Ditto for the Buffalo Six and the Portland Six.
May: We should start by understanding that terrorists are not legitimate soldiers. Why not? Because they make no attempt to abide by the laws and customs of war. On the contrary they intentionally target non-combatants, they use non-combatants as shields, they don't wear uniforms and they don't carry their weapons openly (all requirements under the Geneva Convention).
By the same token, captured terrorists do not qualify to be POWs — they are merely enemy combatants who have violated the Geneva Convention and in so doing have forfeited their rights under the Geneva Convention. They should be treated humanely — but that's an expression of American values, rather than any recognition of terrorists' rights or entitlements.
In general, post-9/11 we need to consider to what extent we can afford to protect the liberties of the enemies of liberty, to what extent the Republic guarantees the rights of those who are willing to use violence in an attempt to overthrow the Republic. Our representatives in Congress need to begin to clarify and probably revise our laws, taking into take account the fact that, for the first time in American history, the American homeland has become a major international battle field.
Hanson: We are on relatively new ground after the mass murder of September 11. We have not seen past American terrorists --whether as part of anarchist movements of the 19th century, the anti-war radicals or the 1960s and 1970s, or those few citizens suspected of aiding Germany during World War II — pose such a threat that we now are confronted with in a world of al Qaeda operatives with the potential use of weapons of mass destruction.
After all, in this war, the enemy may well harm us when he reaches our shores stealthily, or reside here in the guise of one of us, or be able to kill thousands with a weapon that may be no larger than a suitcase. In theory, all American citizens, however odious and dangerous, are entitled to equal protection under the law. But does civilian or military jurisdiction apply to such enemy agents, who are not ad hoc criminals, but emissaries of foreign entities who see themselves as soldiers in a war to destroy us? The only constant in this new war is that terrorists will take advantage of the freedom offered under American law to destroy it — only to seek refuge in it if caught.
Holzer: I'd like to address a point made by Mr. May. In claiming that "terrorists are not legitimate soldiers," he sets up an "either/or" equation: one cannot be both at the same time.
John Walker Lindh was a terrorist by virtue of the two-score overt acts charged against him in the government's indictment (training, marching, fighting, etc.), and at the same time a "legitimate soldier" in the army of the Taliban.
Indeed, some of Mr. May's criteria, taken from the Geneva convention, apply to both of the hats Lindh wore. As a terrorist, he trained, marched, fought and escaped with them, and his colleagues (if not he himself) certainly killed civilians. On the other hand, he did wear a uniform, such as it was, and carried his weapon openly.
So rather than split hairs about how to define him, it is more useful to understand another, better, distinction in international law: that between "lawful" and "unlawful" combatants. The former, subject to capture and detention as POWs, are captured on the field of battle are, at least, POWs. The latter are spies, like the Nazi saboteurs. This distinction, articulated by the Supreme Court in the Quirin case, is more meaningful than any distinction made between "terrorists" and "legitimate soldiers" by the Geneva Convention or anywhere else. Lindh was a "lawful" combatant, as is Hamdi; Padilla, the Buffalo Six, and the Portland Six are not.
As to the "liberties of the enemies of liberty," a neat turn of phrase, we need to consider nothing. Foreign enemies are to be dealt with under the laws of war. American enemies if taken on the field of battle are POWs and can also be tried, as Walker was and as Hamdi someday may be, in a federal district court. Our domestic law is quite clear on this point, as are authoritative Supreme Court interpretations of those statutes. Nothing needs to be clarified or revised.
May: I would argue that when a member of a group such as al Qaeda or Hamas intentionally slaughters civilians he is committing acts of terrorism.
When a soldier in uniform fighting on behalf of an established government intentionally slaughters civilians he is committing war crimes.
Both terrorists and war criminals may be classified as "illegal combatants."
"Legal combatants" by contrast, are those combatants who fight on behalf of an established government and who abide by the laws and customs of war. Legal combatants, once captured, deserve the rights, respect and privileges accorded to POWs under the Geneva Convention.
"Illegal combatants" — whether terrorists or war criminals — forfeit their Geneva protections. (This is not merely a semantic matter — those who take up arms need to understand that there will be consequences based on how they conduct themselves.)
In another words: A soldier who abides by the laws and customs of war will, if captured, be treated as a "legitimate soldier" — a POW with all that implies under Geneva (including, for example, the right to disclose nothing but name, rank and serial number, and the right to retain "kitchen implements" so that they may prepare their own meals).
By contrast, there is no way that a terrorist should ever be considered either a "legitimate soldier" or a "legal combatant" — and no way that a captured terrorist can achieve POW status.
Hanson: I agree with a lot of what both Mr. Holzer and Mr. May are saying. My only worry is that in this war we are awash in relative concepts, even those apparently clear-cut such as "on the field of battle" — does that mean downtown Manhattan or outside Kabul? Is Mr. Atta's hijacked plane an overt weapon of war in the air theater above America, and with his headband and boxcutter is he a recognized combatant? And if so, when, and what point is he no longer a terrorist, but a soldier — as Richard Reid professed?
We should remember that the brief fighting in Afghanistan may be rare in this war — especially when our enemies learn that fighting as conventional "lawful combatants" of the "field of battle" is a prescription for their instant suicide. The problem won't just be in determining whether there is a difference between Lindh/Hamdi and the Padillas and their ilk, but in sorting all the gradations in-between. In frustration, I think the American people, rightly or wrongly, will be content simply to distinguish an Iraqi soldier in the desert from an Atta, and so will more or less come down brutally on the side that unless an enemy is both (1) uniformed or upon arrest identifiable in some traditional fashion, and (2) an agent of a military force of a recognized state with which we are at war, he is a terrorist.
May: I agree with Mr. Hanson. For example, if we do escalate our conflict with Saddam Hussein's regime, we should make it clear that we will view uniformed Iraqi soldiers as lawful combatants — so long as they abide by the laws and customs of war. But those who mistreat our prisoners or who in any other way commit war crimes must understand that they will be dealt with as war criminals. And terrorists in the service of Saddam Hussein will be treated as terrorists — not as soldiers, not as lawful combatants, not (following capture) as POWs.
Holzer: As usual, Professor Hanson is right on the money when he says that "the American people, rightly or wrongly, will be content simply to distinguish an Iraqi soldier in the desert from an Atta, and so will more or less come down brutally on the side that unless an enemy is both (1) uniformed or upon arrest identifiable in some traditional fashion, and (2) an agent of a military force or a recognized state with which we are at war, he is a terrorist."
However, as I said earlier, for purposes of classification (i.e., what to do with him, or what "rights" does he have) I believe the United States government and/or our courts will adhere to the distinction articulated by the Supreme Court of the United States in Ex parte Quirin, between "lawful" and "unlawful" combatants. As to what constitutes a "combatant," for me that would embrace at least anyone who was trying to harm American personnel or interests by physical force. The Court has not had anything to say about this part of the equation. (I'd have to think about fraud).
Overall, there are several elements to be considered: (1) is the attacker/combatant/killer part of an organized armed force, (2) is he in uniform, (3) what is the nature of the engagement, (4) who did he attack, etc., (4) where did the attack, etc. occur, and (5) what were the circumstances? We can also add (6): is he an American citizen?
There are also three categories of "law" to be considered: (1) International "law," in which one could include, (2) conventions/treaties, and (3) domestic law: the Constitution, statutes and cases.
As to the factors, depending on which are present, I think the conclusion differs. If all of them are present, I think you have Lindh and Hamdi, classifiable as either POWs or citizen-violators of American law. On the other hand, Atta would be neither, but, as Mr. May seems to say, a terrorist. He's not a "soldier/combatant.
However, I am troubled by the seeming emphasis on civilians. As I understand Mr. May, because Lt. Calley killed civilians, or Bob Kerry for that matter, they would be "war criminals" and thus "illegal combatants." If so, what then?
May: Mr. Holzer says he is "troubled by the seeming emphasis on civilians." I would argue that this "emphasis" should be neither "seeming" nor "troubling" — rather, there is a significant moral issue here.
Morality evolves. There was a time when piracy was common practice. But at a certain point in history, Thomas Jefferson and others came to the conclusion that piracy should be considered immoral, made illegal and that steps should be taken to abolish it.
For centuries, on virtually every continent, slavery was a common practice. But at a certain point in history, Christians in particular came to the conclusion that slavery should be considered immoral, made illegal and that steps should be taken to abolish it.
Attempts at genocide, too, have not been rare. After World War II and the Holocaust, the Western world came to the conclusion that genocide is never justifiable.
Terrorism has been a common practice for centuries as well — although limits and inhibitions on slaughtering non-combatants (e.g. women and children) go back to the Middle Ages and to the concept of "chivalrous" behavior. But in the 21st century — and certainly post 9/11 — we should be coming to the conclusion that the intentional slaughter of non-combatants for political purposes is immoral and illegal, and steps should be taken to abolish this practice.
That means dealing harshly with terrorists — individuals and groups without established government authority that target civilians for political ends. And that means dealing harshly also with soldiers who intentionally target civilians. (We're not talking about collateral damage here.) If American soldiers go into Iraq, they will be authorized to destroy military targets. Surely, they will not be authorized to use poison gas to wipe out farming villages in order to "send a message." If that distinction applies for us, why would we not apply it also to our enemies?
By the same token, if Mr. Holzer is suggesting that it is meaningless to differentiate between military and civilian targets, he needs to follow his logic where it leads. Surely, then, this is a tactic that we, too, may employ. And indeed, putting aside moral considerations, it could be an effective tactic. If we were to target for assassination all of Osama bin-Laden's relatives, that would send a strong message to other terrorist leaders and to those considering such a career in terrorism. If the Israelis were to randomly wipe out a Palestinian village in response to every suicide bombing, even Hamas might re-think its tactics. But we don't do that and the Israelis don't do that because we do indeed emphasize a distinction between military and civilian targets, between combatants and non-combatants.
May I now ask a question that genuinely puzzles me? What should be the difference between the rights we grant to US citizens and the rights we grant to non-citizens? And what difference does it make whether non-citizens are in the US or outside our borders? And for non-citizens within our borders, does it matter whether those non-citizens are here legally or illegally?
Holzer: I said what I did about "civilians" in the context of what Mr. May said about some people who kill civilians being terrorists and others who kill civilians being war criminals. My point was, is, that anyone who kills civilians intentionally needs to be punished, whatever their classification.
In addition, I agree with everything he has said about "a significant moral issue."
As to his questions (there are three, prefaced by the word "should": (1) rights to US and non-US citizens. The former and resident aliens are protected by the US Constitution and statutes and State Constitutions and statutes. The latter have whatever we are obliged to give them under international law, and whatever in our largesse we are willing to give them. (2) See (1). (3). See (1). In other words, in my view, the rights about which Mr. May asks "follow the flag." We owe our citizens a lot, and also those we allow to live (or legally visit) here. Everyone else gets whatever we are willing to give them. Call me a chauvinist, but that's my "should."
Hanson: There is a variety of issues here, each with a long contentious history that cannot be easily addressed. It has been the policy of the United States not to target deliberately or gratuitously civilian noncombatants who are not directly engaged in the war effort. Take the most controversial incidents in American military history, and one could still argue that Sherman advised noncombatants to leave Atlanta, and exchanged letters with Hood about the morality of his mixing artillery among houses in the city. For all the horror of Hiroshima, the bomb was meant to land upon the center on an entire Japanese army unit that was to play a major role in the defense of the mainland. The infamous fire raids of March 1945 were preceded by leaflet drops and LeMay claimed that they were a reaction to Japanese efforts at distilling industry by dispersing feeder factories in residential sectors. And in the present none of those decisions would today be taken. In short, no politician would order, nor would any military officer obey, an order to kill civilians in the manner that an Assad (Hama), Nasser (the gassing of Yemenis) or Hussein (the Kurds) has done to send a message.
The logic of democracy — Plato lamented that even the beasts eventually would expect equality in Athens — is always to extend rights to the next group of disenfranchised. It is hard for democratic people to deny equality to aliens in the concrete, even if warranted by statute in the abstract. In California we are pondering giving licenses to illegal aliens who drive, and providing in-state tuition wavers even to those who are residing illegally--advantages not extended to US citizens in Oregon or New Mexico, for example. So we are confronted with a paradox: our legal system, for its very preservation, cannot assume jurisdiction or responsibility over non-citizens, but our national character demands that we treat aliens, here and abroad, as we would each other-even if that means striving to provide instant parity. With contradictions like that, no wonder we are confused about our policy toward non-citizen combatants, terrorists, and assorted belligerents.
So we live in a strange world where al Qaeda and Taliban suspects would prefer incarceration by us in Cuba over being held at home in the Middle East by their kindred — with the full expectation that what they would consider was humane treatment would be damned by elite Americans and Europeans as inhuman. As Mr. May correctly points out, morality in a democracy does indeed constantly evolve.
Question #2: So, in general, what do you gentlemen think we should do with American terrorists? Assuming a choice in their treatment (e.g., military tribunal, POW status, limbo, federal courts, "enemy combatants") which is/are most preferable, and why?
Holzer: Basically, with one exception I'll get to in a moment, American citizens so far have been charged only with providing and conspiring to provide "material support" to terrorists and terrorist organizations.
That's what Lindh pleaded to.
That's what the others will eventually plead to, or be convicted of. Except the Portland Six, who are charged with conspiracy to levy war against the US. That's not treason, but it's close.
Every American citizen, no matter where captured, what he's wearing, whether he's armed, etc., who satisfies the four criteria for treason should be so charged: (1) an intent to betray the United States, which can be inferred from (2) an overt act, (3) testified to by two witnesses (4) that gave aid and comfort to the enemy.
If any of these elements are missing, as aid and comfort may be in the Portland Six case, they should be charged with at least the "material support" crime and at most with the "conspiracy to levy war" crime, and anything in between. For example one could perhaps equate Padilla with the Nazi spies/saboteurs of World War II.
In addition, if there is more than one actor, as there usually is, the conspiracy charge should be laid along with the substantive crime.
Americans like Lindh and Hamdi should certainly be charged with treason.
May: That's a sticky wicket. On the one hand, we don't want to be quick to strip anyone of his Constitutional rights. On the other hand, there are tough precedents regarding those who take up arms against the Republic — Lincoln's policies during the Civil War spring to mind. And we know that on at least one occasion during World War II, saboteurs with American citizenship were brought before military tribunals, convicted and executed.
My inclination would be to create a new process for Americans accused of committing acts of terrorism against Americans on behalf of a foreign enemy. That process would give more than usual discretion to the executive branch but with some judicial oversight. Military tribunals would be the simplest way to accomplish this.
Holzer: Ditto. And I completely agree with Mr. May if he is suggesting that military tribunals should have jurisdiction over American citizens, as such a tribunal did over Mr. Herbert Haupt, a Nazi saboteur who sneaked into the United States to blow up defense facilities.
Hanson: So far I think the courts have been able to handle the wide variety of cases under existing statutes. I was pleased, but surprised, to see Mr. Lindh receive 20 years in federal prison, with no parole other than a possible two or three years given for good behavior. Much of the conduct of prosecutors, judges, and juries, of course, will be determined by future events: if we experience another catastrophe of the magnitude of 9-11, with evidence of complicity of American citizens, then we would probably see greater use of preventive detention, longer sentences, or more efforts to create new legislation. We shudder at some of the more flagrant transgressions that took place during the Lincoln administration and Johnson's and Grant's enforcement of Reconstruction in some of the postbellum southern states; but at a time of war in which 600,000 Americans perished and unrest was rampant for a decade subsequent, it was understandable that extreme measures were used — however regrettable they seem later to scholars in times of peace and safety.
Question #3: Do we all agree that treason has to be prosecuted as a capital crime? And if we do, then surely the death penalty should serve as a real possibility, right?
Holzer: Treason must absolutely be prosecuted as a capital crime. Doing so will focus the defendant's attention on what he must do to avoid death, whereas a possible term of years may not.
May: The death penalty should be a real possibility for those convicted of treason.
Hanson: I agree. The problem with the death sentence will arise when treason is proven, but — as in the Rosenberg case — its direct culpability for taking lives is harder to prove. But as for the morality of punishing terrorist killers, we should ask our European friends who last summer were criticizing our execution of Timothy McVeigh: "You either ignore or release terrorists; we execute them — go figure the moral calculus of that."
Question #4: Are present measures of enforcement and jurisprudence adequate, or do we need more? Or, in contrast, does our new vigilance, as so often alleged, threaten our own civil liberties?
Holzer: Anyone who raises the banner of "civil liberties" must be asked at least four questions before the discussion even begins: (1) define the terms, (2) why is it (whatever "it" is) a "civil liberty"?, (3) why and in what manner is it being threatened, and (4) why using the "balancing" approach to which the Supreme Court seems addicted, why should it not take second place to national security.
May: As I've indicted above, we ought to review and probably revise law enforcement and jurisprudence in light of the war against terrorism. I don't believe any significant sacrifice of our liberties will be required in order to increase our security. And I vehemently disagree with those hysterics who think we have already given up our liberties because, for example, we are increasingly viewing those living and working in the US illegally as not just "having a visa problem."
The real sacrifice of our liberties is occurring not in response to the terrorists but because of the terrorists. It is the terrorists who are depriving Americans of their liberty (e.g. every time we go through an airport), property (consider what we are paying in taxes to defend the homeland) and life (9/11 and other lethal terrorist attacks).
Hanson: What is astounding is that in a time of chaos and fear the Justice Department and law enforcement have systematically hunted down hundreds of potential terrorists, brought some already to trial, deported others, and in the process prevented another September 11 — and yet not sacrificed our system of civil rights. The onus at least for the present is on hyper-critics of the Left to prove that Americans are somehow less free and in danger of losing their liberty; and on the grouchy Right to demonstrate that the government has no range of latitude to prevent sleeper cells and indigenous terrorists from murdering more Americans.
The media bombards us with outrages that 90-year-old grandmothers are unnecessarily being searched at airports even as they allege Middle-Eastern males are unfairly racially-profiled on the freeways; but so far, for all our clumsiness, in this age of completely new threats, I think we have radically increased security and done it in accordance with the Constitution. Again, the real challenge will come should another 9-11 disaster transpire — an attack that would prove that our present measures are inadequate and thus might call for approaches that would be at odds with the accustomed liberality Americans expect in a free society. Obviously, you cannot enjoy freedom if you are dead.
Question #5: Is there a pattern to or profile of Americans who join the fundamentalists/Islamists, and if so, what is it, and why?
May: I'm not sure we have a large enough sample to construct a definitive profile. But we can reasonably surmise that most of the Americans who will be recruited to the Islamist or Jihadist cause are likely to be Muslim, young and, in most cases, male. Beyond that, I'm simply not sure what we can conclude. Jose Padilla had a criminal record; John Walker Lindh did not.
Holzer: I'm a lawyer, not a psychiatrist, so I can answer this question only as a lay observer. Apart from Lindh, whom I will discuss in a moment, let's look at what we know about Hamdi, Padilla, the Buffalo Six and the Portland Six. The common denominator seems to be that they do not come from the immigrant background of Western Europe and seemingly do not possess the cultural and political values that [once] predominated there. Values that have made this nation what it is. To the contrary, their basic cultures in important ways are the antithesis of the American culture, and certainly do not value individualism, capitalism, and the like.
Lindh on the other hand, seemingly a traditional "American" is obviously the product of a counterculture upbringing which, in its own way, rejects basic American values. So, from my lay perspective, what unites all the non-Lindhs, and them to Lindh, is the absence of those "American" values, creating fertile soil for the anti-Americanism, pro-terrorist, attitudes that all of them have exhibited.
Hanson: I would like to think that they share a lack of education; but unfortunately throughout this crisis some of the most lunatic reactions to September 11 have come from our cultural and educated elite-as if with intellectual progress comes moral regress. All I can detect is that each of the fundamentalists originates from enclaves that see themselves as antithetical to the American mainstream, whether that be Marin County culture or some of the more extreme mosques. And unfortunately in the last two decades there has been either an inability or unwillingness of average Americans to question and refute various forms of anti-Americanism on the cheap, thus emboldening the unhinged to become ever more radical.
Question #6: Assess the real potential for harm — are the dangers a nuisance or do they possess the ability to inflict damage on the scale of September 11? Or might they inflict even greater damage?
May: There clearly is a serious potential for harm. As we are seeing right now, for example, great harm can be caused by even a single individual using a high-powered rifle to randomly murder civilians. (I'm not suggesting that we have reason to believe that the murderer loose in the DC area is a Jihadist.) An individual willing to conduct a "martyrdom" operation, willing, for instance, to infect himself with small pox and spread the disease through the population could obviously cause much greater damage.
Holzer: We face a psychotic who already has the means to cause tremendous devastation, and who could soon possess the means to cause even worse damage. See the Kuwaiti oil fields at the end of the last Gulf War, and President Bush's recent speech outlining his case against Saddam. See also the world's response to the Japanese militarists and to Hitler pre-World War II. See also the world's response to the Communist revolution. Then there was Ethiopia. And all our memories of the schoolyard bully. Things always got worse, until some kid had enough, faced the bully, and soon saw that at root he was a coward.
The president made clear what everyone knows, whether they admit it to themselves or others, or not: CBR (chemical, biological, radiological) weapons in anyone's hands are dangerous enough. In the hands of a megalomaniacal lunatic, they are unacceptable. If we do nothing, September 11th, as horrific as it was, will look like a day at the beach.
Hanson: I agree with both Mr. Holzer and Mr. May; in our brave new world individual extremists in theory could possess the power to kill thousands.
But I also think we need to be very careful what we say; when someone like Norman Mailer announces in the aftermath of the mass murders of September 11 that the Twin Towers, the tomb of thousands, were like "two huge buck teeth" and the ruins were more beautiful than the buildings; or a Philip Roth said that after 9-11 " it was a strange time and the first time for years that New York interested me," adding that Americans are witnessing "an orgy of narcissism and a gratuitous victim mentality which is repugnant," such sentiments send a message that prominent Americans really don't care much should terrorists attack their homeland. So I wonder if we are still the same people who defeated fascism and Japanese militarism when our intellectuals and elites smugly dismiss catastrophe or seek to offer something cute as commentary.
Question #7: So gentlemen...overall, what must America do to effectively prosecute a war against terrorists?
May: To effectively prosecute a war against terrorists, it is vital to do more than simply hunt down terrorists after they commit acts of terrorism. To effectively prosecute a war against terrorists, we must also take steps to prevent acts of terrorism — to save innocent civilian lives.
To accomplish this will require having the ability to effectively interrogate terrorists.
POWs can not be effectively interrogated. They have the right to withhold all but the most minimal information (i.e. name, rank and serial number).
Nor can criminal defendants be effectively interrogated. They have the right to remain silent, a right their lawyers will generally advise them to exercise.
So we have to make a choice: Are we willing to impose limits on the rights of captured terrorists that exceed those imposed on both POWs and criminal defendants?
Or are we unwilling to limit the rights of captured terrorists — even if that means sacrificing the lives of many innocent civilians?
Holzer: I fully agree with Mr. May that a choice has to be made. Coming back to the essence of the first question in this symposium, what do we do about American's accused of terrorism, I see in the Lindh case a choice the government has made. If the US had classified Lindh as a POW, though eventually he would have been released, he could have been held a very long time, and as Mr. May points out we would have been severely limited in interrogating him. Indeed, his able but blowhard lawyer would have shut down the entire process.
On the other hand, by indicting him we had the leverage of a potential life sentence, longer than we would have held him as a POW. We turned the screws with that, and did very well in the end. He's in prison for a long time, and we're getting intelligence (perhaps even about the Buffalo Six). So I vote to charge all American "terrorists" with as much as we can, even treason, make a deal, and squeeze them for all they know. As to non-citizen conventional fighters, classify them as POWs and let them look at life in Guantanamo or some less hospitable place for the duration, which could be a century. As to unconventional fighters, that's limbo land and we should be able to do anything we like. And, to end this on a controversial note, including torture — even in a non-ticking time bomb case.
It has been a pleasure, gentlemen.
Hanson: We are doing a pretty good job both here and abroad; the problem is that with weapons of mass destruction and terrorists that have a proven record of killing thousands, there is absolutely no margin of error. My guess is that we are going to stick with the accustomed protocols of law enforcement and jurisprudence until something terrible again occurs; but if, God forbid, we should suffer another September 11-like mass murder, then we shall face some pretty tough decisions that will involve the civil liberties of suspected terrorists versus the lives of thousands of innocents.
Interlocutor: Mr. Hanson, Mr. Holzer and Mr. May, it has been a pleasure. Thank you for joining Frontpage Symposium.