NY Daily News, July 5, 2008
News flash: Osama Bin Laden and his deputy Ayman al-Zawahiri are captured in Pakistani tribal areas and turned over to American custody.
What would happen next? Celebratory news stories, cries of a major victory in the war on terrorism – and total confusion.
This is the shameful truth: Six and a half years, four major Supreme Court cases – including the landmark ruling giving detainees habeas corpus rights – and endless lower court litigation after Sept. 11, 2001, we have no agreed-upon rules for handling this situation.
Would the two archterrorists face trial and, if so, would they face it in a military commission, a court martial or a federal court? Would they face detention without trial, and if so, for how long would that be allowed? Would the military or the CIA hold them, with what burdens of proof, and under what set of rules? What standards would govern their questioning, on which so much would undoubtedly ride?
None of these questions have answers on which Americans remotely agree.
Assigning blame for the impasse is a mug’s game; there’s more than enough to go around. The Bush administration conflated its legitimate needs in the fight against Al Qaeda with its own desire to consolidate executive power. Administration critics have made the mirror-image mistake, confusing their opposition to Bush and Cheney with opposition to the often-reasonable steps the administration has sought to take.
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Benjamin Wittes 