Guilty Until Proven Guilty

At National Review, Brian J. Pawlowski summarizes the current Republican consensus on counterterrorism:

This irrational approach needs to be fixed. There are commonsense criteria that should apply to all individuals, American citizen or not: If you actively aid, or attempt to aid, any terrorist or terrorist group whose goal is to attack American or allied targets anywhere in the world, no matter whether they succeed or fail, or if you are inspired by jihadist propaganda to perpetrate violence in any manner on American soil (the so called “lone wolf” syndrome), you will be considered an enemy combatant. Only so many “lone wolves” can strike before they need to be considered part of the pack. You will not be Mirandized. You will not have access to the civilian court system. You will be held at Guantanamo Bay, where you will be questioned to the fullest extent for as long as is deemed necessary in order to glean all intelligence information you possess. And you will then have your day in a military court.

So to reiterate, Muslims suspected of terrorism are to be assumed guilty based on unproven allegations, and treated as members of an enemy force regardless of whether or not they have any contact at all with foreign terrorist organizations. This isn't "common sense," it's an inversion of the most basic principles of due process, which hold that the government has to actually prove you've committed a crime before punishing you for it. It's one thing to argue that people captured on a battlefield in Afghanistan should be subject to the ineffective military commissions' system, it's another to call on the American military to be responsible for domestic crimes. American citizens legally can't be tried by military commission, and the Supreme Court has never held they can be subject to indefinite military detention. They've given the government some leeway in its treatment of foreign detainees, but advocating that American citizens forfeit their constitutional rights upon being accused of a crime is going to be a hard sell for even this court.

Pawlowski complains that "There has been a dramatic increase in the number of administrative and bureaucratic steps necessary to simply question enemy combatants, resulting in tiny windows of time during which subjects can actually be questioned," but his approach would add an entirely new bureaucratic layer to questioning in domestic cases--wherein the FBI would have to seek a waiver from the Pentagon to keep a recently arrested terror suspect in custody. This is also a solution to a hypothetical problem: There's no evidence, other than a series of panicked hypotheticals, that Republicans can point to proving that law enforcement procedures interfere with timely intelligence gathering, let alone one that demands a solution that would make intelligence gathering less timely.

Then of course, there's the irony of "conservative" "small government" types throwing Posse Comitatus under the bus and demanding that the military investigate domestic crimes on U.S. soil and proclaiming limitless power to detain even Americans. But then, I suppose as far as National Review is concerned the people who would be affected by this are American by technicality and shouldn't actually have the same rights as everyone else.

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