Osama bin Laden “will never appear in an American courtroom,” Attorney General Eric H. Holder Jr. told House members at a hearing Tuesday. “Let’s deal with the reality here,” Holder said in response to questions from Rep. John Culberson (R-Tex.). “The reality is, we will be reading Miranda rights to a corpse.”
Members of an Appropriations subcommittee pressed Holder about the Justice Department’s response to the failed Christmas Day bombing plot and the abortive decision to try in Lower Manhattan the alleged masterminds of the Sept. 11, 2001, attacks.
He grew most heated, however, amid GOP attacks over the hypothetical capture of bin Laden. No law enforcement response would be necessary, he said, because “he will be killed by us or by his own people.”
As Desert Storm vet James Joyner says, though, "members of the special forces or intelligence team... [would] much rather have the intelligence and propaganda value of dragging the Big Cheese in." That's no doubt true.
There is probably a middle course, in which we'd take him alive if possible; but if the window of opportunity didn't permit it, he's a target of about the same level as Zarqawi or Saddam. Saddam ended up being taken alive after serious effort, but early in the war we were quite willing to drop 2,000 pound bombs on places where he was reliably reported to be. And as for Zarqawi, let's not forget what happened to him.
The problem is that we've got this very confused two-track approach. If we'd taken Zarqawi alive, he would have been turned over to the government of Iraq (as Saddam was). If we take bin Laden alive, he will be... what? Prosecuted as a criminal in civilian court? Prosecuted by military tribunal, like Nurmberg? Held until the end of the conflict, as would be the limit case for Prisoners of War?
Because we're kind-of treating the war as a law enforcement operation under Holder, the ACLU has a window to make these kinds of inquiries into what sorts of "due process" we are employing before depriving our enemies of "life, liberty or property." That would be fine, if this were a peacetime issue that was meant to be handled in a court of law.
It's just not, and the administration needs to get its head on straight about that. They are fighting a war, whether they like it or not: and that means they are engaged in the use of Article II powers, having been formally authorized under the Article I power of the Congress. The enemy here is to be handled, not as criminals, but as combatants. Combatants can be "privileged" or not, depending on whether they adhere to the Geneva Conventions.
It happens that these don't. Islamic law has its own ideas about what is just and righteous in war, and it happens that al Qaeda is in violation of those standards too. These are not criminals; they're the enemies of civilization. Not "the enemies of our civilization," but of all civilizations. We can apply the laws and justice of war to them without violating any standard to which they have a right to appeal.