Terrorists: Criminals or Soldiers?

In addition to All Things Considered (just below), I caught the last six or eight seconds of Talk of the Nation on the drive home this afternoon. One of the guests was Adam Charnes, who was a lackey in the Ashcroft DOJ and a former clerk for Justice Kennedy. From the little bit I heard, it sounded like he was responsible for taking the Bush Administration's side in the discussion about today's Supreme Court case featuring American citizens Jose Padilla and Yaser Hamdi. Bush declared the two "enemy combatants" and that, I guess, voids the warranty: No attorneys, no rights, no nothing while they await, in Kafka-esque limbo, whatever legal proceedings are going to happen. Charnes said something, though, that got me thinking.

One of the closer-to-legit reasons the Bush team plays "Blame the Clenis™" is that the Clinton Administration saw terrorism, especially threats of terror attacks within the U.S., as a law-enforcement issue. Bush and crew treat all terrorism, within the U.S. or not, as a military issue. (I'm not saying it's fully legit. Just closer.)

Part of the problem with the Bush team is that it's living in the 1980s. The Enemy™ was That Big Country Over There. Massive. Iconoclastic. Far away. And just as bogged down in bureaucratic bogging-down-stuff as we are. If the attack is coming, they think, we'll see it coming because The Enemy™ is something so titanic we can't miss it. That's why Condi Rice can't recognize a national security threat unless the terrorists spell out the date, time, place, and delivery method. But we stopped living in that world more than a decade ago.

In one of the most inadequate of the fistful of inadequate responses that a military approach leads to is the wholesale declaration of hundreds "enemy combatants" by Bush, and the warehousing of them at Gitmo. Some of them, like Yaser Hamdi, were caught on an actual battlefield; others, like Jose Padilla, were just at the airport. In either case, calling terrorists "enemy combatants" opens up cans of worms that just shouldn't be open.

See, I remember way back when, Howard Dean had a new one ripped for him when he let slip that Hamas terrorists were soldiers in a war. Again, this may be an "it's okay if you're a Republican" moment.

Worse, you have to start wondering exactly how far they will go with this. What are the characteristics of a terrorist group that make its members "enemy combatants"? They obviously don't have to be foreign nationals or apprehended in combat, as the cases under review right now show. Does it have to be a foreign-based network, like Al Qaeda? How about a network that has just a foreign cell or two? What if, for example, Aryan Nation had a couple guys in a cabin in Saskatchewan--would we be able to arrest your friendly neighborhood skinheads as enemy combatants?

What about terrorists that are entirely home grown? If Timothy McVeigh had done what he did under Bush's watch, would he be in Gitmo right now? If a couple of teenagers with a linux box hack DoD computers, would they be held incommunicado in windowless rooms for two years?

I'm not a lawyer, nor do I play one on the internet, but I think I know what's coming. I would not be surprised if the court draws a narrow line, claiming that Hamdi, as he was captured in hostile combat in Afghanistan, really is an enemy combatant, despite his American citizenship, and therefore Open Seasonable. Padilla, on the other had, was just getting off a plane at O'Hare, and the court may well declare him to be a law-enforcement problem.

Even so, none of this will resolve the fundamental problem that the Bush administration has when it comes to fighting terrorists. Tom Schaller summed it up perfectly: These guys only have a hammer, so every problem looks like a nail. And if civil rights happen to be in the way, well, just remember--we're at war.