David A. Rivkin, Jr. and Lee A. Casey published an excellent piece at National Review Online addressing the line between trying our enemies as enemy combatants subject to the rules of war; or criminals subject to our Constitution (emphasis added).
The right way to proceed, consistent with the law, morality, and history, is to treat captured enemy personnel as enemy combatants, subject to the laws of war. By contrast, criminals — including individuals who commit terrorist acts but, whatever their ideological predilections, are not members of entities such as al-Qaeda that have been engaged in an armed conflict with us (this would include Timothy McVeigh and Major Nidal Malik Hasan) — should be treated as criminal suspects subject to the workings of the criminal-justice system. Treating an al-Qaeda operative who enters the United States to carry out an attack as a common criminal not only denies the nature of this challenge we face, but it works to level the playing field to our disadvantage.
Retired Special Forces Colonel Gordon Cucullu told me in an interview that we actually give our terrorist enemies more rights than the Geneva Conventions afford them. According to Common Article 3, non-uniformed combatants are to be shot on sight, and for good reason when you consider the effect that they have on humanity. War is best fought by uniformed members of the military.
But all we have done since the Iranian Embassy takeover in 1979 is placate jihadists. Trying foreign operatives as criminals simply because they perpetrate their acts on or above our soil not only endangers American citizens, but further emboldens our enemies and grants them access to the very Constitution that they are trying to destroy.
The NRO article is in response to a New York Times op-ed defending Obama administration’s decision to treat Umar Farouk Abdulmutallab (the al-Qaeda operative who attempted to blow up an airliner over Detroit) as a criminal defendant. No surprises there.