One for Vigilis

Andrew McCarthy builds a strong case that lawyers are losing the War on Terror:

After years of railing against a post-9/11 enforcement paradigm that sees international terrorism as primarily a national-security challenge to be attacked militarily, not a legal problem to be addressed in court, legal elites now sense their opportunity. The full-court press is on for a return to the salad days of treating terrorists as ordinary criminals. Not combatants but defendants, like tax cheats or drug dealers: Fit for trial in the civilian courts and liberally afforded the presumption of innocence, Miranda warnings, publicly-subsidized legal representation, cross-examination of witnesses (like our combat troops), and broad discovery of sensitive intelligence which will apprise the enemy not only of what we know but how we know it.

The Abraham affidavit comes only two weeks after a military tribunal held that a combatant who murdered one American soldier and maimed another could not be subjected to a military commission trial. The tribunal’s bizarre rationale (reviewed here), was that military commissions may only try those found to be “alien unlawful enemy combatants,” while CSRT procedures merely determine whether detainees are “enemy combatants” — the judges thus ignoring that only aliens are held at Gitmo and that, under the military’s definition of enemy combatant, a detainee cannot be deemed one unless he has acted unlawfully (i.e., in violation of the laws of war.)

The latest “bombshell,” furthermore, follows a federal-appeals-court ruling about a week ago, which held that a terrorist sent by al Qaeda to conduct operations inside the U.S. could not be considered an “enemy combatant,” and must either be referred to the civilian courts for trial or released. A majority of the divided three-judge panel reasoned (as explained here) that only a country like Nazi Germany, not a terror network like al Qaeda, can have combatants, and that America is not a “battlefield” of the type where combatants are captured. The judges evidently missed September 11th, when al Qaeda — unlike the Nazis — managed a domestic attack that killed nearly 3000 Americans and left behind a smoldering battlefield where the twin towers once stood.

LAWYERS’ OFFENSIVE
Abraham’s minimal involvement in the CSRT process is not the only thing the Post story tip-toes around. The Abraham affidavit does not appear to have been filed in connection with a specific case he actually knows something about. Instead, it was gratuitously contributed to arm the flotilla of Gitmo volunteer defense attorneys with ammunition. Besides dropping that tidbit about “detainee lawyer” McLean asking for Abraham’s help and then using it to make a sweeping attack on the whole process, the Post also notes that Abraham’s “affidavit was widely passed around … among lawyers for about 375 foreign detainees[,]” who plan to “present it to a federal appeals court as evidence that the military review process is constitutionally flawed.”

Beyond his reservist status and limited CSRT stint, the Post tells us nothing about Abraham’s legal practice and experience. To judge from the assertions in the affidavit, however, what may be “fundamentally flawed” is Abraham’s understanding of the nature and purpose of CSRTs, to say nothing of his grasp of basic criminal procedure.

I hope the gated communities these guys live in are made of thick, steel-reinforced concrete, because the jihadists will eventually get around to them when they're done with the rest of us.

Wait, what am I thinking? They'll simply bone up on their sharia law.