Since its inception the Obama administration has demonstrated an obsession about applying the edicts and structures associated with criminal law to the war against Islamic fanatics. They Mirandized terrorists. They insisted on civil trials. They announced Gitmo’s closure. They released detainees to Yemen and other terrorist breeding grounds. They considered Maj. Nidal Malik Hassan a criminal, not a foot solider in a worldwide jihadist war on the West.
Guess what? None of it worked. Some collapsed under its own weight and political unsalability. Other aspects became logistically impossible. It turns out that search warrants, Miranda warnings, civilian trials and the rest work wonderfully when operating a criminal justice system in which Americans enjoy every constitutional protection needed to curb the totalitarian impulse of all governments. But as a methodology for fighting the war on terrorism? It’s a disaster.
John Yoo, who underwent years of investigation by inept lawyers and faced the loss of his law license for his work in setting the ground rules in the war on terror, has reason to find solace in an operation that was the anthesis of the criminalization of the war on terror. He writes:
Imagine what would have happened if the Obama administration had been running things back in 2002–2008. It would have given Miranda warnings and lawyers to KSM and other al-Qaeda leaders. There would have been no Gitmo, no military commissions — instead civilian trials on U.S. soil with all of the Bill of Rights benefits for terrorist defendants. There would have been no enhanced-interrogation program, no terrorist-surveillance program, and hence no intelligence mosaic that could have given us the information that produced this success. In the War on Terror, it is comparatively easy to pull the trigger — the truly hard task is to figure out where to aim. President Obama can take credit, rightfully, for the success today, but he owes it to the tough decisions taken by the Bush administration.
It has always been a misnomer that the Bush administration acted ”lawlessly.” To the contrary, George W. Bush, his advisers and lawyers understood there is criminal law and there is the law of war. And they understood we should not confuse the two. The latter allows, as Congress proscribed, for military tribunals and for interrogations that fall short of torture but would not be countenanced in a civilian court. The latter allowed us to operate the Nuremberg trials. The latter was the legal tradition in this country for more than 200 years. Now Obama and his team have figured it out as well, after two years of a misguided experiment in which they castigated critics as legal and moral dunces.
But now there is agrement by both sides in this raging debate. You don’t send cops to arrest Osama. You send SEALs. Perhaps now we can set aside all that poppycock about Bush’s “shredding the Constitution.”