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November 22, 2005
Right Move
José Padilla has been indicted. Excellent, and about time. While I realize that this was, in large part, to head off a battle in the Supreme Court, it is still the right thing to do. The rules should be simple:
An American who is not in the military, wherever taken and under whatever circumstances, should be subject to the jurisdiction of US civil courts. If he's fighting for the enemy, he's committing treason, and should be charged with it. (This covers Padilla, who if guilty of conspiracy to set off a dirty bomb (the original reason he was said to have been arrested) has committed treason and if not guilty should be charged differently or released.)
An American who is in the military, wherever taken and under whatever circumstances, should be subject to US military courts. In the case of SGT Hasan Akbar, for example, who attacked his fellow soldiers, a summary trial and field execution would have been appropriate: he got more access to the justice system than he deserved.
A non-American, taken in the US and not having attacked the US (presumably such a one would be charged with conspiracy), should be subject to a determination by civil courts whether or not he is an enemy combatant, and after that to US military courts.
A non-American, taken in the US in the act of attacking the US or after an attack on the US, should be subject to US military courts so far as is necessary to determine his status. If he is determined to be an illegal combatant, he should have no further access to US justice systems. Summary execution is just fine in such a case.
A non-American who is a member of a regular armed force, taken overseas under any circumstances, should be subject to the provisions for POWs.
A non-American who is not a member of a regular armed force, taken overseas under any circumstances other than in the act of attacking the US, should be subject to a military tribunal to determine his status, and if an illegal combatant should have no further access to any system of justice.
A non-American who is not a member of a regular armed force, taken overseas in the act of attacking the US, should have access to no system of justice. Summary execution in this case is just fine, should we decide to do so.
Of course, these are entirely my opinions, and I suspect the courts might differ on some of them.
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