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July 6, 2005
ACLU Still Wants To Define Warfare As Criminal Investigations

The capture of five American citizens in Iraq who allegedly have plotted attacks against the Iraqi government and American troops has caught the attention of the ACLU. The civil-rights group now insists that those Americans captured in a theater of war must have due process through civilian courts and have filed habeas briefs for their release:

The U.S. military in Iraq has detained five Americans for suspected insurgent activity, Pentagon officials said Wednesday. The five have not been charged or had access to a lawyer, and face an uncertain legal future.

Pentagon spokesman Bryan Whitman declined to identify any of them, citing the military's policy of not providing the names of detainees. They are in custody at one of the three U.S.-run prisons in Iraq.

One was identified by his family and U.S. law enforcement officials as Cyrus Kar, an Iranian-American filmmaker and U.S. Navy veteran.

Saying Kar is being held unjustly, the American Civil Liberties Union sued the government on Wednesday in an effort to secure his release. ... "He just had the misfortune to get into the wrong cab," said Steven R. Shapiro, the ACLU's legal director. "Our position is that if the government has any evidence against him, bring him home and charge in a court and then proceed accordingly."

The ACLU has two problems in this approach to the detention of Kar. First, the alleged crime occurred in Iraq, not the US, so the law that applies here is Iraqi law, not American law. Second, if the American military has detained Kar, it is because they suspect him of acting on behalf of the insurgency, which has attacked American military personnel in war zones throughout the area. That isn't a civil crime -- it's an act of war. For that matter, if Kar conducted his actions in support of these attacks without wearing a uniform representing a legitimate state, impossible since the terrorists don't have that kind of open endorsement, then Kar could be held as either a spy or a saboteur, neither of which gives him access to American courts.

One would think that lawyers at the ACLU would have studied law and understand the concept of jurisdiction. American courts have given civilian courts jurisdiction over those who have been captured outside of battle zones, and only under limited circumstances. Even in those cases, the decisions were incorrect and probably will eventually be reversed, but clearly does not apply here. Iraq has a functioning government and judicial system which can handle its own civil criminal cases. The only way Kar can claim to get American jurisdiction is if the Americans insist on trying him for treason, a death-penalty charge.

This continues the ACLU's effort to push the Bush administration back to the failed criminal-justice approach to terrorism, the same indictment-based counterterrorism strategy that led the Clinton admnistration to balk at a deal to capture Osama bin Laden in the mid-90s. Using the courts to deal with global terrorism means that American troops mst read all captured prisoners their rights and provide them lawyers. Can you imagine doing that in a war zone? It also means that the arresting servicemen would then have to be available to testify in the thousands of cases that would clog our court calendars instead of acting in defense of our country.

The ACLU knows exactly what it is doing. It has long since crossed from a responsible voice on civil rights to a partisan advocate of extremist left-wing politics, and the war on terror is just another example of this antipathy to America and its security.

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Posted by Ed Morrissey at July 6, 2005 10:48 PM

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