I have a strange feeling David Rivkin and Lee Casey did not put too much thought into today's Wall Street Journal op-ed. The piece swerved its way to a conclusion regarding a law enforcement approach to fighting terrorism, criss-crossing an irrelevant and dated issue.
As the great Italian legal scholar and reformer Beccaria wrote in the 1760s, to prevent crime, "make sure that men fear the laws and only the laws." Where respect fails, of course, there also is fear of punishment under the law -- deterrence. The system breaks down, however, when the criminals neither have respect for the law nor fear its potential punishments.
My first suggestion is to stay off Quoteland.com if you aren't going to find something that supports your argument. The quote is admirable and hopefully applicable to the U.S. court system, however we are to believe this standard won't suffice in the current state.
The followers of violent jihad do not respect the laws of democratic governments, but claim a superior legitimacy in the form of their own interpretation of Islam's Quran and Shariah law. Many of them also do not fear punishment.
This is the point where we are expected to celebrate the policy of the U.S. vs. that of many European countries. If al-Qaeda doesn't respect laws or fear punishment, what are we supposed to do? Apparently the most logical solution is military attacks in which we kill all terrorists. This is as empty a policy as any. Anyone who believes it is possible to eradicate terrorism and/or the ideals driving it is delusional. In fact, I believe our latest efforts will in fact backlash in spades. The world is a big place and has citizens gripping twisted ideas of Islam throughout. Committing considerable time, effort, resources and lives to one country that was initially only tangentially involved is irresponsible. Continuing such a policy, bolstered by the use of torture and violating treaties, is obscene.
Although the Civil Law system is marginally better suited than the Common Law system for antiterror prosecutions -- permitting more closed proceedings and less technically demanding evidentiary standards -- both are built upon the assumption that it is better to let the guilty go free than to convict the innocent.
That is an appropriate balance when a society is dealing with its own reprobates. It is not so obviously correct when the threat is a foreign movement whose purpose is to cause death and destruction on a grand scale...
...Only the law of armed conflict permits the flexibility needed to disrupt al Qaeda's operations on an international level.
Finally, the authors reach their conclusion that an individuals rights and the applicability of American values is safe and acceptable when dealing with American murderers and rapists. However, when a foreign movement is involved (are we are still arresting people or have we started taking foreign movements to our prisons?) we must lower our standards and invoke war. This contradiction within American policies belittles the effort to bring democracy and stability to Iraq and beyond.