Regardless of how you feel about The New York Times, even a stopped clock gets the right time twice a day. The Times recently published a story about Andrew McCarthy, the former SDNY AUSA who was on the prosecution team that worked the terrorism cases (pre- and post-9/11), and is now a vocal critic of the DOJ-centric approach to the fundamental question of how to bring terrorists to justice. The story is here:  http://www.nytimes.com/2010/02/20/nyregion/20prosecutor.html?pagewanted=1&hp

There’s strong feelings on both sides of the issue. McCarthy demonstrates both that there is a wide rift between the two extremes (where, on one hand, terrorism is a purely political issue, and on the other, purely a military one), and that in the middle there is a fundamental question of criminal procedure: no matter how we conceptually characterize the issue of terrorism, the practical application of any system of laws requires a robust infrastructure.

As a SAUSA I saw (and was awed and humbled by) the complexity of our Federal Courts and the way in which the policy and procedural rules for prosecutions are layered to an incredible degree; a prosecution before a Court-Martial is a comparatively simple matter. The Guantanamo commissions, I think, were designed to apply most of the best of both of these worlds to the trial of terrorists in a court of law. If the tenor of the debate over the handling of Umar Abdulmutallab (the Christmas Day bomber) is any indication of the future justiciability of terror issues, the commissions may also be a legal posthistoric edge of chaos to which we must inevitably return (see J. B. Ruhl, The Fitness of Law: Using Complexity Theory to Describe the Evolution of Law and Society and Its Practical Meaning for Democracy, 49 VAND. L. REV. 1407 (1996)) (also see Francis Fukuyama, The End of History and the Last Man, Free Press (1992)).

Also, McCarthy is right-on about needing the Marines.

23 Responses to ““We could go into the grand jury and indict Osama bin Laden three times a week, but to do anything about it, you needed the Marines.””

  1. Anonymous says:

    “Mr. McCarthy has also criticized the private lawyers who have been assisting detainees at Guantánamo Bay, Cuba, in challenging the legality of their confinements through habeas corpus petitions in federal court.

    “The country’s at war and they’re volunteering their services to the enemy,” Mr. McCarthy said of the lawyers.”

    That quote told me all I needed to know about this guy. These defense counsel don’t determine whether or not these folks are tried in a civilian trial, the government does. ONCE that happens, we have rule of law in this country, and SOMEONE has to represent these guys. If that rule of law is to be something more than a sham, there have to be dedicated folks representing them, not someone who does it so that we can gain a quick conviction of “the enemy.” If the government proves they are in fact the enemy, then they will no doubt be convicted, and punished hard.

    As for the idea that somehow prosecuting some of these folks isn’t a “deterrent”, if these are in fact fundamentalist terrorists, he$$bent on attacking us, seeking afterlife rewards for successfully doing so, then what exactly WOULD deter them?

    We still had attacks and attempted attacks after we started up the military commissions. We could put every last one of these folks into a pure military commission, heck we could give them no commission at all, just hold them, extract information, and execute them, and that would not deter future attacks.

    You deter future attacks primarily by degrading their support among their people. You don’t try to stuff up a running water faucet, you turn off the spigot.

    Considering the overwhelming conviction rate in civilian trials both in percentage and pure volume versus what’s been accomplished with the commissions (have we even gotten into double figures yet?), it seems to me that, so far, we are far more effective at achieving bringing terrorist to justice in civilian court than military commissions, regardless of any “complexity” in the former.

  2. Anonymous says:

    The marines have been trying for over 8 years – not much progress there either. McCarthy is just a right-wing blowhard. His attack on habeas counsel is reminiscent of Cully Stimson’s comments a few years back. Josh Dratel got it right when he said “that form of demagoguery was floated a few years ago and was promptly and roundly rejected by the entire organized bar. Those lawyers he criticizes have done an invaluable service for the United States.”

    Those that think otherwise are the ones we should fear.

    The enemy? We once had over 700 imprisoned at Guantanamo. Now there’s about 200. That’s a lot of “enemy” prisoners we let loose.

    Bottom line – this guy’s philosophy is one that CAAFloggers should not tune in to on a regualr basis. I truly hope they don’t.

  3. Zachary Spilman says:

    Gee guys, who really cares about “old Andrew ‘Joe’ McCarthy” – the subject of the post was the “fundamental question of how to bring terrorists to justice.”

    It’s disingenuous to suggest that only an Article 3 court can provide “rule of law.” McCarthy discovered, after he indicted bin Laden, that the civilian process can’t bring these criminals to justice (though it will happily wait for them to bring themselves, À la Roman Polanski).

    My point was that between the extensive procedure and limited capabilities of the Article 3 courts, and the limited procedure and extensive capabilities of Courts-Martial, the adjudication of alien terror suspects requires some hybrid of the two (i.e., some type of commission), and that from a theoretical standpoint this was an inevitable condition.

  4. Anonymous says:

    Several questions come to mind about your post Mr. Spilman:

    a. The entire text of the article you linked concerned Mr. McCarthy’s views, views which you seem to give at least some credence to, so it is a bit surprising that you are surprised that some people might comment on Mr. McCarthy

    b. No one so far has suggested that “only” an Article 3 court can provide rule of law (not sure why you put it in ironic quotes). However, given the results thus far, Article 3 courts have a much better record of actually bringing terrorists to justice than commissions do. No way around that fact.

    3. What are the limited capabilities of Article 3 courts versus military commissions? Military commissions don’t go out and capture terrorists, so in that regard they are in the same boat. Military commissions have convicted the smallest fraction of the terrorists than Article 3 courts have, so no capability advantages obvious there. So what do you mean?

    4. Why are commissions required? What would be the concern if terrorists were convicted by Article 3 courts instead of commissions? Loss of information? At the end of the day, does this simply boil down to, we can create commissions that allow “enhanced interrogation” or “torture” depending on where you come down on this issue but Article 3 courts we can’t?

    If so, is there any evidence that the information we’ve gained from terrorists through the military commissions is greater than the information we’ve gained from terrorists who have eventually been convicted in Article 3 courts?

    If not, then what is it that military commissions give us, that Article 3 courts don’t? Because it certainly isn’t convictions, or conviction rates.

    I don’t think it inevitable at all, and not sure it is necessary. It may in certain situations be desirable, and it could even be useful or workable. I certainly think and believe many members on both sides of the military commissions are honest, dedicated Americans. But not sure why it is “necessary” to have military commissions.

  5. Dwight Sullivan says:

    I’ll try to post some more thoughts about this over the weekend. But it’s important to note that there’s already another justice system that could be used to try law of war violations: our familiar court-martial system. See Article 18. And it would be difficult to argue that if the system is sufficiently fair to try our servicemembers, it isn’t fair enough to try purported illegal enemy combatants. (That said, for a number of reasons that I’ll try to develop at some point this weekend, from a policy perspective I think U.S. district court is the best forum in which to try these cases.)

  6. FYI says:

    Making a political issue out of whether to use the regularly-established courts, a la Lieberman et al., is scary stuff. There are plenty of other “specialized” contexts where it would be easier to use summary procedures, e.g., sexual assault. Would you want to be tried by summary procedures?

  7. Anonymous says:

    COL Sullivan, I would agree with you on courts-martial. And since they so closely mirror Article 3 Courts, this really seems to boil down to it being a desire, for good or ill, to want to limit the legal component of bringing terrorists to justice.

  8. Zachary Spilman says:

    Sure, but that was why I commented quickly – I didn’t want McCartly to become the foil, but I do think he’s a good reference for the debate. Also, I wanted to echo the point about the Marines.

    I took the first anonymous comment as an attack on the MilJus system, and its practitioners (on both sides of the bar), who are every bit as dedicated as our civilian counterparts to the actual pursuit of justice.

    The rest of your comment gets to the point, and at this point I’m waiting for COL Sullivan’s thoughts on the matter.

  9. Anonymous says:

    “I took the first anonymous comment as an attack on the MilJus system, and its practitioners (on both sides of the bar), who are every bit as dedicated as our civilian counterparts to the actual pursuit of justice.”

    Wow, I don’t see how you got that from Anon 1200s response at all.

  10. Anonymous says:

    I agree that Zak is stretching the facts, much like McCarthy does – there was no attack on the miljus system in that first anon comment. Rather than admit he’s probably onboard the McCarthy bandwagon claiming neither art 3 courts nor courts-martial are appropriate venues for these trials, he gets defensive about his position. At least he’s waiting for Mr. Sullivan’s comments before closing the door on other options. I doubt McCarthy would listen to the anticipated practical comments from Mr. Sullivan.

    And, echoing the point of the 2nd anon comment, haven’t the marines been trying for almost a decade now?

  11. anonymous says:

    Why does Spillman garner status as a commentator? What about any other appellate counsel at Army/Air Force etc…

  12. Mike "No Man" Navarre says:

    Why is it scary to use civilian courts for the 9-11 terrorists? If convicted they would go to Colorado with the prior attackers of the WTC, among others. That trial seemed to work pretty well. And what’s wrong with abiding by the rule of law that we signed up for in international treaties and trying only battlefield crimes in military courts? I have yet to figure out what war was going on the day of that tragedy. Invonvenience of a civilian criminal trial is the wrong reason to discard the rule of law as we try to teach others to abide by it. Has General McChrystal’s plan and COIN strategy taught us nothing?

  13. Dwight Sullivan says:

    Please note that my remarks below are aimed at only the forum in which to try an alleged terrorist for offenses. I am not suggesting — nor do I believe — that it’s inappropriate to kill suspected terrorists in military operations or to subject them to military intelligence interrogations upon capture.

    Hypothesize that there are two justice systems that could try the alleged terrorists — System A and System B.

    Over the last 8 years, more than 300 defendants have been convicted of terrorism or terrorist-related offenses in System A. In System B, 3 defendants have been convicted.

    System A is widely viewed around the globe as not merely fair, but as the gold standard for fairness. System B is widely viewed as an unfair system.

    System A isn’t susceptible to any serious systemic challenges. System B is vulnerable to multiple potentially meritorious constitutional attacks.

    System A is well-established. System B has been overhauled three times in the last eight years and the current version of the system is untested.

    As a matter of policy, if you could choose the forum in which to try a serious case that will be followed by individuals and nations around the world, which would you choose?

    Now let’s look at the 3 convictions that System B managed to produce. One of them actually highlighted the extent to which System B is open to political manipulation. Another conviction was against an individual who boycotted his own trial — hardly a serious test of the system. Two of the three cases resulted in sentences far less than System A would have imposed for similar offenses.

    As I’ve previously noted, contrary to the hypothetical set out above, there are actually three systems that could try many terrorism-related cases: federal district court, military commissions, and courts-martial. The Article III courts have demonstrated that they can successfully prosecute terrorism cases. The military commission system has been a failure. The military justice system is untested in dealing with these cases.

    If I had to choose which of the three systems to use to try a terrorism case, I’d go with the only one that has an established record of success — the Article III courts.

  14. Anonymous says:

    A new found respect for “No Man” and Mr. Sullivan. These two CAAFloggers really get it.

  15. Late Bloomer says:

    Spilman is not appellate counsel. He was/is a TC/SAUSA.

  16. Anonymous says:

    “I’m waiting for COL Sullivan’s thoughts on the matter.”

    What say you, Zach?

  17. The Cat says:

    I wanted to post a few comments about this subject since I spent a couple of years working on the military commissions.

    The first are the posts by the anonymous posters. Mr. Spilman made a post presenting the POV of Mr. McCarthy, someone he apparently agrees with on this subject. He titled his post wth a quote from Mr. McCarthy, which I liked to be honest. I love any quote that is positive about our Marines, and the truth is we do need them, look at the great job they are doing in Afghanistan right now. We should all be very proud.

    But the response to Mr. Spilman’s post was to personally attack Mr. McCarthy. I am always skeptical when one’s response is not to attack the argument, but to attack the one making the argument; it tells me they have lost the argument. You can even attack his statements regarding the defense representation of KSM and company without needing to attack Mr. McCarthy. I will say for the record that not even I agree with attacking the defense attorneys simply for the fact that they represent KSM and Co.

    But the second point I want to make is in response to COL Sullivan and No man, two individuals I immensely respect, as well as their very well thought out views, even though at times I may not agree with it.

    I understand the argument that the district courts have handled terrorists cases just fine, and many of them. I am an AUSA and I am very familiar with our federal system. But those cases where handled in law enforcement channels from the beginning: Rassam; the pre-911 WTC defendants; the embassy bombers. That is not really a fair comparison. The one that had a slight hybrid to it–law enforcement/war–was Moussaoui and that turned out to be a circus that ended favorable to the government only because he ultimately pled guilty. Moussaoui was arrested pre-911, if I remember, but his case became intertwined with KSM, the war aspect.

    The 911 conspirators (KSM and co.) are a pure war paradigm. They were not apprehended by the FBI, nor where they investigated by them or any other agency in DOJ. They were held incommunicado for a number of years by the CIA, subject to harsh interrogations (I do not beleive torture, but I understand some don’t share my view), and where drained for the intel, some of which was very valuable, and not criminal confessions. When interrogating someone, intel interrogations are very different from law enforcmement because the two are after very different things. That is not something our district courts have really encountered, at least not in recent history. It is my belief that the district courts are ill-equiped to hanlde this and it won’t work, to say it mildly. But the good news is that it looks like they will see their day in district court (somewhere) and we will finally see if COL Sullivan and No Man are right, or if I am right. If I am not, I will be man enough to be called out here.

    On the policy side, I have always preferred our military commissions because I do not beleive that KSM and co. should receive better treatment than our own servicemembers receive. Being in district court does have better protections than courts-martial: constitutional right to grand jury indictment (I did not understand the importance of that until I became an AUSA), and constitutional right to a jury, to name just a couple. Don’t get me worng, I do believe in our courts-martial system, but it is universally accepted that the court-martial system does not carry with it all or the same the guarantees and protections as district court, that is why it is very hard to bring civilians to a court-martial. (Notice I said civilians; I do not classify KSM and Co. as civilians.) (That is also why NIMJ has been consistently trying to further change courts-martial to be more like the federal system and why there is yet a second Cox Commission.)

    I also do not beleive that KSM and Co. should receive the same treatment as our servicemembers. They are unlawful combatants who do not fight with honor because they do not fight in accordance with the LOW. There needs to be a very sharp distinction in the way we treat lawful combants who fight with honor and in accordance with the LOW and those who do not. Part of that stand is saying for your unprivileged belligerency and war crimes, you will stand trial in a military commission or tribunal, not the same courts-martial that we bring our servicemembers or may bring a POW.

    Finally, I do beleive that our military commission process affords greater protections and process than was received by the Nuremberg defendants. For example, there was no appellate review of the convictions and deathsentence, they had no jury, and they had but one rule of evidence: that which is probative to a reasonable man is admissible. It is said that Justice Jackson did not want to call a single witness, he merely wanted to play the movie and then put a stack of papers on the judges’ desks and say they are guilty. His assistant prosecutors convinced him to call some witnesses. And I can’t even imagine playing a movie as evidence against a criminal defendant in federal court.

    No one of reason, that I know at least, even remotely argues that the Nuremberg defendants did not receive justice, or that the military tribunals there were kangaroo courts dispensing injustice. Or that justice was not served at Nuremberg. I think when matched up with our military commissions, our military commissions prove to be just as good if not better in the fairness arena.

    As per only three making it through the MC process: First, there has been unprecedented judicial interference. I am not arguing here the merits of judicial intervention (though I will disclose that I thought it to be incorrect), but no one can serioulsy debate that the interference by the third branch into the MC process was unprecedented in our history; the courts did not interfere in WWII, the Civil War, or the Revolutionary War. The courts did not interfere with Nuremberg either. With no interference, of course those military tribunals enjoyed much more success.

    There is also another difference, the military tribunals in the earlier wars occurred at the end of the wars, not during. What makes this unique is that this war against the Taliban and al Qaeda will last much longer and the vital need for intelligence is a must if we are going to win. The importance of intelligence in this war is also unprecedented. Not that intelligence isn’t important in any war, but this particular war cannot be won without good actionable intellgience. That makes it harder to try these guys because many of them are caught by our military through intelligence, and the means and methods needs to be preserved. That also plays a part in delaying the prosecution and it plays a part in the amount of evidence we can present. To see the effects of this in the district court, look at the Padilla case, where many charges and much evidence was not presented precisely because it was not gathered through law enforcement channels. Had it been, I am convicned Padilla would have received a life sentence, not 17 years, and in the federal system, life is life, there is no parole or early release unless you get a pardon or clemency from POTUS–unlikely in Padilla’s case.

    I know the anons will disagree with me and will start to call me nasty things (maybe make fun of the misspellings I missed). That’s okay, COL Sullivan and No man know who I am and I suspect they will have some very good substantive responses to this; they have always operated at a higher plain than I.

    BTW guys, thanks for all you do with this website, I think it is a great service and I am sorry I do not contribute more often.

  18. Osiris says:

    Can someone please Explain to me how COWARDS WHO BLOW UP old ladies in the name of any relegion deserve to be standing before a military comission?. Does’nt the world MILITARY imply a sense of honor and duty a state?.

    Its amazing how rational and reasonable minds are willing to subvert the constitution and the simple rightness of our justice system with its simple power vested by the people reject and banished anyone threatens our way of life with Cowardly acts of deprevity.

    Terrorist are’nt soldiers, so why give the ligitimacy of military honor as if they have chosen to wear the uniform of homeland and swear to defend it.

  19. Anonymous says:

    The Cat, that was a pretty long response, but I’d like to address a few parts of it.

    1. I don’t think the responses were a “personal attack” on Mr. McCarthy but an attack on his ideas. His attacks on defense counsel are a clear window into his position and thought process in coming to the conclusions he does. His do as I say not as I did approach to convicting terrorists in courts also colors his arguments.

    2. I’m not sure I buy that our Article 3 courts have any experience dealing with terrorists who have had prior interrogations, nor that necessarily such interrogations renders them “unconvictable.” Do you have some evidence or numbers to suggest that is the case? Because again, we only have 3 folks in almost a decade who’ve made it through the commissions, so to label that the superior process, you’d have to say the courts have done even less. That’s a pretty low bar.

    3. As far as better treatment. In many ways, the military court-martial system is better than the Article 3 courts in dealing with defendants. No mandatory minimums, more liberal rules on mitigation, as a former TDS attorney there are a lot of areas where Soldiers have a better go of it than civilian Americans on sentencing and at trial. Regardless, our primary goal is not, let’s make sure we don’t do anything that gives these guys equivalent rights for three reasons:

    a. Not all of them are necessarily guilty.
    b. We need the system that is the most successful in completing the process (either for conviction or acquittal).
    c. There are larger concerns here. Is it about holding to our values or is it about some argument about lack of honor?

    4. Let’s not look back to Nuremburg as some sort of gold standard. Saying we did it 60+ years ago is never a particularly compelling argument.

    5. As for judicial interference, a couple of things. First, there is no declared war. We use that language for political purposes but Congress certainly hasn’t declared it and neither has there been some sort of unofficial proclamation by the past or current president. So this isn’t WWII, or Vietnam, or Korea. Second, again, looking back multiple generations isn’t very compelling. There was no UCMJ/MCM in WWII, and we didn’t have this issue really in Korea or Vietnam. There is nothing at all unprecedented about the courts determining whether action taken by the US on our territory is copasetic or not. The decisions may or may not have been wrong, but the authority seems fairly valid to me.

    6. A war on an idea never ends. So you are proposing that, since terrorism will never end, that we will forever and ever treat anyone suspected of assisting a terrorist group as an illegal military combatant? That’s the problem with a war on an idea. At the end of the day, it elevates them way too much. They aren’t Soldiers, they are criminals, thugs, disaffected hooligans. Treat them as such.

    As for calling you names, I think the fact that you’ve made that leap with no evidence suggests something about you, not others.

  20. Dwight Sullivan says:

    Chalk up another terrorism-related conviction for the federal district courts today.

    Note this portion of Mr. the Cat’s argument for military commissions: “for your unprivileged belligerency and war crimes, you will stand trial in a military commission or tribunal, not the same courts-martial that we bring our servicemembers or may bring a POW.” This argument is predicated on an assumption of guilt. Whether an individual committed a war crime is what a trial is supposed to determine.

    Let’s assume that Khalid Sheikh Mahammed was subjected to coercive interrogation techniques. That would highlight rather than negate the importance of trying his case in a well-established system with clear rules for dealing with such a situation. Surely no one believes that being subjected to coercive interrogation techniques would immunize Mohammed from prosecution. Rather, applying standard self-incrimination law, it would bar any resulting admissions until the point at which the taint is purged. Federal law provides clear guidance for how prosecutors should deal with such a situation; Mohammed is hardly the first individual to make a coerced confession.

    Now let’s look at the untested military commission system. Under 10 U.S.C. 949a(b)(3)(B), a coerced confession can be admitted into evidence at a military commission proceeding if a military judge concludes that “the totality of the circumstances renders the statement reliable and possessing sufficient probative value” and “the statement was made incident to lawful conduct during military operations at the point of capture or during closely related active combat engagement, and the interests of justice would best be served by admission of the statement into evidence.”

    Now let’s suppose that a coerced statement is offered for admission and a military judge allows it in. The validity of any resulting conviction will immediately be thrown into question. Consider this language from the Supreme Court: “The Constitution of the United States stands as a bar against the conviction of any individual in an American court by means of a coerced confession. There have been, and are now, certain foreign nations with governments dedicated to an opposite policy: governments which convict individuals with testimony obtained by police organizations possessed of an unrestrained power to seize persons suspected of crimes against the state, hold them in secret custody, and wring from them confessions by physical or mental torture. So long as the Constitution remains the basic law of our Republic, America will not have that kind of government.” Ashcraft v. Tennessee, 322 U.S. 143, 155 (1944) (internal citation omitted). Could the defense successfully challenge the conviction on the basis of the admission of a coerced confession in violation of Ashcraft? I don’t know. But no one else knows either. If, on the other hand, we were to try the case in U.S. district court using well-developed legal rules, any conviction should withstand judicial review and be accepted as fair by the international community. So if our interest is obtaining convictions and making them stick, federal district court remains the only proven system for handling terrorism cases.

  21. Anonymous says:

    I think the problem here, which I’ve heard often, is more one of semantics than with the substance of the issue. If we changed the name from “military comission” to “war crimes tribunal,” or something similar, that argument vanishes, and we’re back to the more important (in my opinion) argument of whether to proceed through Article 3 Courts or through this new system.

    Reasonable people may disagree with me, but I think that any argument that can be avoided by changing a name isn’t the most important one to have.

  22. imfb says:

    1 (in reference to point 2): We’ve only had 3 folks in a decade make it through the commissions, but the “300 convictions” statistic being thrown around (in regards to Article 3 courts) lumps in a lot of cases that none of us would put in the same ballpark. It was horribly bloated a few years ago when I remember democrats engaging President Bush on it, and it’s horribly bloated today when republicans are engaging President Obama on it. AG Holder hasn’t even been able to provide a list of these supposed convictions, I quite honestly believe the number is actually much lower.

    2 (in reference to point 3): I agree that there needs to be a serious discussion as to what the goal here is. Would a conviction, obtained at a military commission that allowed the use of evidence gained through the use of “enhanced interrogation,” be viewed as less than legitimate? Absolutely. But what happens when a trial in Federal Court ends in an acquittal? Holder recently said that the accused would not be released, what does that do to the legitimacy of our Article 3 Courts?

    3 (In reference to point 5): This isn’t a declared war, but then again, neither were Korea or Vietnam. We last declared war during World War 2.

    4 (in reference to point 6): Indeed it doesn’t. I think this is why this discussion is so important. The situation presents many interesting questions. What do you do with belligerants who are fighting a “war” against you, mainly striking non-military targets, wherever in the world they can? The war might never end in a way we’re used to, what do we do then?

    I’m not sure I buy the “they aren’t soldiers, they are criminals…” line of thinking (as I posted above). When the Nazis/Japanese were going before war crimes tribunals, it was for actions carried out while they were acting as soldiers. However, they acted in such a way that no self-respecting soldier living would find reasonable. I understand that the historical analogies are easily strained, but I don’t pay much credence to the idea that terrorists are somehow worse or different than the Nazis who murdered so many citizens. Did we elevate them too much?

  23. Anonymous says:

    imfb, in response to your points (with your numbers):

    1. 300 may not be the accurate number, but whatever the accurate number is, wouldn’t you agree it is quite a bit more than 3?

    2. Your point speaks not to the success or failure of using Article 3 courts versus another process. An acquittal can happen in any of the processes and the question of what now applies to all of them doesn’t it? In fact, an acquittal in a system with even less protections would seem even “stronger” and holding them after even harder to justify.

    3. Yes, but we weren’t dealing with this issue in Korea or Vietnam either. Regardless, it seems somewhat suspect to say, let’s just go with what we did pre-MCM, 60+ years ago, when the state of the law (criminal, law of war, etc) was much less developed than now.

    4. Well it invites the conceit that you can actually have a war on terror or with terrorists. I, for one, don’t think you really can. Terrorists aren’t large groups or nations, they are small groups, even individuals. The idiot kid who tried to blow up the most recent plane wasn’t technically part of any group, he just listened to another idiot who said here’s some stuff go blow up a plane. Doesn’t make him not dangerous or undeserving of punishment/isolation, but suggests to me that he is less Soldier and more criminal.

    The NAZIs/Japanese were in fact Soldiers. They wore a uniform, they represented a country, they took prisoners. Much of the time, they followed some bare principle of common decency in treatment of POWs. All too often, some of them did unspeakably horrible things. Those folks were thankfully punished (well most of them).

    By the way, I’d point out that today’s standards of warfare would look at the firebombings of German and Japanese cities and the nuclear bombings of Japanese cities as war crimes. Yesterday’s standards didn’t. Just reflects the point that trying to use yesterday’s standards today isn’t always the right move.