Pretty much ever since the Christmas Eve bombing attempt, the news and blogosphere has been filled with commentary regarding the proper venue for trying individuals like the Christmas Bomber.  With President Obama having decided that the Christmas Bomber is to be tried in civilian court, the conservative press has been filled with objections very reminiscent of those used in connection with Obama’s deeply confused policy of how to deal with the prisoners at Guantanamo.  Although I instinctively agree that the Christmas Bomber belongs in military court, I have a hard time identifying any useful principle which differentiates him from other domestic terrorists like the Oklahoma City bomber, who certainly do belong in civilian court.

People like the Christmas Bomber sit at an interesting mid point between domestic terrorists like Timothy McVeigh and radical Islamic terrorists like those detained at Guantanamo Bay.  There is little doubt that the Christmas Bomber is, himself, a radical Islamic terrorist.  However, despite his allegiance, the details of his attack more closely mirror the events of Guantanamo Bay than they do the events on the foreign battlefield where the Guantanamo detainees were captured — the Christmas Bomber was legally traveling to America and he was arrested on American soil.

All of the arguments holding that the Christmas Bomber should be tried by the military flow, ultimately, from his association with al Qaeda.  This begs the question of whether a person’s trial rights depend in some fundamental way on the groups with which they associate.  There is a good deal of logic to answering that question affirmatively.  After all, al Qaeda is a known terrorist organization which has accomplished multiple attacks against the United States both at home and overseas, and which is willing to say that they are at war with us, even if we are unwilling to return the courtesy.  On the other hand, the very fact that we are unwilling to say that we are at war with al Qaeda (or to do so only haphazardly) is symptomatic with a major problem with predicating rights on associations.

The trouble with linking rights to associations is the arbitrary nature of how associations might be viewed.  The merits of a particular group are decided by the government; al Qaeda may look and act like a terrorist organization, but the United States only recognizes them as such because of decisions made by the folks in Washington DC.  But aside from the sheer irrationality of the conclusion, what prevents those same politicians from declaring another group — say, America’s veterans — to be terrorists undeserving of rights?

In the absence of a deep principle separating terrorist organizations from politically disfavored groups or McVeigh-style domestic terrorists, I find it troubling that so many conservatives are so eager to put the Christmas Bomber into military detention, even though I agree that it is where he belongs.  Even more troubling, though, is the fact that even though I agree he belongs in the military system, I can think of no great principle separating him from McVeigh.

In the absence of such a principle, I find myself in reluctant disagreement with the prevailing wisdom of my fellow conservatives.  The power to commit a person, captured on American soil, to military rather than civilian detention is too great a power to leave in the hands of government discretion.  The potential for abuse as a means to silence political rather than national enemies is too great to be left available to this or any future President.

Tags: freedom, terrorism