A Case for Presidential Power on Terrorism Detainees - Ruth Marcus, Washington Post opinion.
Much of the criticism of the Obama administration's decision to bring criminal charges against the failed Christmas Day bomber is ill-informed, ill-intentioned or both. The move to file a criminal case does not reveal the administration's supposed law enforcement-only mindset. It does not show President Obama "trying to pretend we are not at war," as former vice president Dick Cheney alleged. The clamor to have Umar Farouk Abdulmutallab declared an enemy combatant and hauled before a military tribunal ignores several inconvenient facts. Only two individuals seized on American soil - Jose Padilla and Ali Saleh Kahlah al-Marri - have been declared enemy combatants, and both ended up having that status dropped and their cases tried in federal court. Even enemy combatants, the Supreme Court has said, have the right to have a federal judge decide whether their detention is lawful. A military tribunal would provide many of the same protections about which critics complain: the presumption of innocence, proof beyond a reasonable doubt, access to counsel. The string-'em-up itch is understandable, but a military tribunal won't soothe it. Indeed, the biggest difference between a federal trial and a military tribunal is that the court trial would probably take place sooner. And with less legal risk: In federal court there would be no argument about whether the court had jurisdiction over Abdulmutallab.