The Dumbest Thing I Read Today -- Judge Thomas Penfield Jackson

Mass Murder Civilians and Get Gold-Plated Due Process [Andy McCarthy]

That's the upshot of an absurd op-ed in the Washington Post today from former Judge Thomas Penfield Jackson.

He writes:

The attorney general should reject the suggestion that Mohammed be tried by a military commission at Guantanamo Bay or anywhere else. His crimes were civil, not military. Mohammed owed no allegiance to any flag, nor did he wear the uniform of any country. He answered to no code of military honor or of the law of war. His targets and victims were innocent civilians who had never sought to harm him. His weapons were four stolen commercial civilian aircraft. He was not captured on a battlefield; he was hunted down like any common felon, hiding in disguise among civilians in a city far removed from military activity.

So, according to the judge, if you kill more people than the Japanese killed at Pearl Harbor, and you do it by flouting the laws of war — i.e., you don't identify yourself as a warrior, you don't carry your weapons openly, you target civilians and civilian infrastructure for mass-destruction attacks, and you further endanger civilians by hiding among them, making retaliation and capture difficult — we should reward you with all the majesty of the Bill of Rights and all the privileges of the citizens you have massacred. Very sensible.

The imperative of international humanitarian law is to incent people to follow the laws of war and shield civilians from attack. Judge Jackson — speaking like a man who spent his the last quarter-century not having to face voters — would instead encourage attacks on civilians (no doubt, unwittingly).

His rationale has already been rejected by Congress and even the Obama administration. Jackson suggests that KSM should not be treated to military procedures (like a commission trial) because he did not conduct himself like an honorable soldier and was captured far from a conventional battlefield. But Congress overwhelmingly authorized a military response to al-Qaeda after 9/11 knowing this was how bin Laden's network operates. Then lawmakers provided for trials by military commission for enemy combatants. The Obama administration, moreover, has referred the attackers of the U.S.S. Cole for a military commission trial (even though the Cole bombing happened before military commissions were authorized, and even though there was a pending civilian indictment against the Cole bombers). The fact that terrorists pretend to be civilians is a reason for denying them due-process protections, not, as Jackson would have it, a point in their favor.

Jackson goes on to say that the judges and juries in the District of Columbia are first rate. So are the judges, juries and prosecutors in New York. That has never been the issue. The issue is recognizing that we are at war, regarding the enemy as a wartime enemy, and discouraging attacks on civilians by withholding from those who engage in them the rights of the American citizens they kill. Judge Jackson doesn't get that. He is a prime exemplar of why — as Justice Robert Jackson explained — counterterrorism policy should be made by the political branches who answer to the people whose lives are at stake, not by federal judges who don't.