For all the floundering on Iraq, the capture of Ramzi Binalshibh is a major victory in the war against al Qaida. The Associated Press now reports that the White House is considering whether to try him before a military tribunal.
Military tribunals do have a place in our constitutional system. And perhaps Binalshibh — who seems to be the only person we’ve captured with serious, direct involvement in the 9/11 attacks — is just the fellow who should face one.
But this latest decision should focus us again on the recurring and as yet unanswered question: just what are the rules here? The rule of law is principally a matter of there being rules. What the rules are is often much less important than that there be rules and that they be followed. Thus far war on terrorism jurisprudence hasn’t so much been draconian or lax as it has been a rather comical make-it-up-as-you-go-along affair.
John Walker Lindh, a US citizen, gets a straightforward civilian trial. Zacarias Moussaoui, a French citizen, gets a straightforward civilian trial. Jose Padilla, a US citizen, is held indefinitely and without counsel as an enemy combatant. Yasir Hamdi, another US citizen, is also an enemy combatant being held indefinitely, but he may get a lawyer. The folks down in Guantanamo, well, who knows?
A military tribunal, civilian trials, various sorts of detention — cases can be made for each method of proceeding. But the essence of the rule of law is having rules in place for how you’re going to deal with people before you catch them, not making them up afterwards.
