September 16, 2006 | Commentary on National Security and Defense

The need for National Security Commissions

A declaration of war is just that, whether or not the recipient wants to fight.

Back in 1998, Usama bin Laden declared war on us.

"I am confident that Muslims will be able to end the legend of the so-called superpower that is America," he told Time magazine that December. Three years later, al Qaeda launched a massive strike, with hijacked commercial aircraft serving as weapons of mass destruction.

On 9/11, we finally stopped treating bin Laden and his gang as criminals and answered their declaration of war with a war of our own -- a worldwide war that's still going on today. But there are frightening signs that we may be losing our resolve. For example, some members of the Congress want to go back to treating al Qaeda as simply a matter for law enforcement.

The stakes will be high this month as Congress debates whether or not to use military tribunals (now commonly referred to as military commissions) to deal with individuals captured in the global war on terror.

Unfortunately, some lawmakers are supporting an amendment that would force these military commissions to disclose classified information to al Qaeda. If Congress approves the amendment, we'll be harming our war effort by giving our enemies classified information. Our enemies would then know the sources and methods the United States uses to acquire information about terrorists.

That's not the way to win a global war against terrorists who've vowed to use our own rights and freedoms against us. We should be less concerned about the civil rights of enemy combatants than we are about protecting our own national security.

It appears, though, that some members of Congress have confused law enforcement with war.

Law enforcement is a process that stresses the right of the accused. American citizens have constitutionally protected civil rights when the government arrests and incarcerates them. For example, when an American is arrested for attempting to take a life, the detainee is read Miranda warnings and may immediately consult an attorney. If there's a trial, the accused has the right to confront witnesses and see all the evidence in the prosecution's case.

War is different.

We are fighting a war against people that planned and applauded the execution of almost 3,000 people on Sept. 11. We need to be tough.

Today, when enemy combatants are wounded and captured on the battlefield, they are put in a secure area so that they will not be able to harm their American captors. These captured combatants are not read Miranda rights when they are "arrested," nor are they provided a lawyer to be present during interrogation. These dangerous people are put behind bars until the war is over, so they won't be able to get back on the battlefield to attempt to kill more American soldiers.

All that proves it's absurd to think that there are senators and representatives who want to extend hard fought American civil rights to foreign enemy combatants.

The House of Representatives will debate and may pass legislation before the fall recess that mirrors President Bush's plan for military commissions. House Armed Services Committee Chairman Duncan Hunter has put together a bill to create military commissions that allow the exclusion of evidence (to protect classified information), remove Miranda-type rights before a terrorist can be interrogated and allow hearsay evidence when a witness is unavailable.

The House bill would preserve national security while giving the captured combatant a right to a hearing. It would ensure the essential elements of a fair procedure while recognizing the nature of our terrorist enemy and the difficulties of trying a combatant when much of the evidence is left on the battlefield. In short, the bill would help protect our national security.

The Senate appears to be going in the wrong direction on the issue.

It will consider legislation that treats these commissions as the moral equivalent of a trial of an American citizen. Some Republicans and Democrats in the Senate are attempting to extend American-style rights to terrorists, rights that would severely compromise national security.

Sen. Lindsay Graham, R-S.C., told McClatchy Newspapers he's "confident the Senate will reject President Bush's plan to try accused terrorists without letting them see classified evidence against them." Graham's leading the charge to make these tribunals mirror the Uniform Code of Military Justice. This is a mistake.

Our military's men and women in Iraq and Afghanistan are fighting for American freedom. They are not fighting so the people they capture on the battlefield can get a "fair" trial. They are fighting to win a war against people that want to terminate our nation and our way of life. American lawmakers should ensure those hard-fought battlefield victories aren't given away needlessly in the courtroom.

Brian Darling is director of U.S. Senate relations at The Heritage Foundation, a leading Washington-based public policy institution.

About the Author

Brian Darling Senior Fellow for Government Studies
Government Studies

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