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Rosa Brooks, peripatetic law professor and LA Times columnist weighs in on John McCain's proper rebuke of Barrack Obama for thinking the proper way to fight the war being waged against us by Muslim extremists is in the trial courts of the federal judiciary. McCain called this September 10th thinking. It is.

Taking the contrary point, here is some of the wisdom, such as it is, from the professor on the subject:

Obama's point boiled down to common sense: If it ain't broke, don't fix it. Our federal courts have been in business for more than 200 years. They've tried brutal Mafia bosses who controlled entire American cities, violent drug lords, Nazis, spies and the Oklahoma City bombers. U.S. courts have procedures for handling sensitive national security evidence, and they have already successfully tried Al Qaeda terrorists, including "shoe-bomber" Richard Reid and 9/11 plotter Zacarias Moussaoui. These men had their day in court, made idiots of themselves, and now they're locked away in a U.S. supermax prison.

There were no federal trials of Nazi spies. The Nazi spies in Ex Re Quirin were tried by military tribunals, convicted and executed or imprisoned. One of them was born in America. Because they were in America, they got habeas corpus relief (for what it was worth). The Nazis tried in China in Johnson v. Eisentrager got no such habeas relief. Professor Brooks' ignorance here is really astounding.

Ms. Brooks puts her well manicured finger on the problem. In the prosecutions she mentions, Reid and Moussaoui helped us out by constantly admitting guilt and more importantly, by not demanding we provide through discovery sensitive national security information, that is, that we burn our sources and reveal our methods, because doing that would be really bad and really dumb. We don't want to allow the enemy to learn from us how he got caught. That information would help our enemies. Reid and Moussaoui were damn fools, indeed. Had they let their attorneys run the show, Moussaoui, at least, might well have walked. But only a fool would rely on the illegal combatants held in Guantanamo Bay continuing to be so foolish. They could well demand through discovery sources and methods, the guys who captured them to be in the court, Miranda rights...the sky is the limit now that Justice Kennedy has gone free form and created a right that has never existed for legal combatants, much less for the illegal combatant, wholly forsaken by the Geneva Convention.

Here's another gem from Ms. Brooks:

Prosecutions in federal courts make sense when we're talking about suspects far removed from battlefields; military force makes sense when U.S. troops are confronting fighters in Afghanistan or Iraq.

What nonsense. As if proximity to the battlefield means anything in this sort of war. And where does she think most of the detainees came from? Here's a hint, Rosa, from the battlefield in Afghanistan.

Finally, she quotes the gentle, torture victim, John McCain, saying the Guantanamo detainees have rights under various human rights declarations. And one of them is the right not to be detained indefinitely.

Listen, one accused of a crime cannot be held indefinitely. Prove the crime or let him go. Punishment can follow the establishment of guilt of a crime but not the other way around. But we're not holding the illegal combatants pending an accusation of a crime nor for punishment for a crime--we're holding them so they don't return to the field of battle and kill our guys. We're doing what every nation, that took prisoners, has done since before history. All prisoners of war are held for the duration, and no one knows how long that will be especially early in the war. Most of our recent wars have lasted just a few years, but the American Revolution lasted eight and earlier in European history there were much longer wars--the Thirty Years War and the Hundred Years war. The Cold War lasted just over 40 years. So stop already with the 'detained indefinitely' whine. That's the essential nature of prisoners of war, except the ones who have committed war crimes (which is actually all of them here) who will be prosecuted (one day) and, we hope, executed.

All this confusion arises from the refusal of some to recognize that we are at war. It's not a matter of declaring it, although we have against al Qaeda, because al Qaeda has certainly declared it, and waged it against us.

You may not be interested in war, but I can assure you that war certainly is interested in you, said Leon Trotsky.

You can listen to lefty law professor Ms. Brooks who certainly speaks from some ignorance here, or you can listen to an actual prosecutor of terrorists, Andrew McCarthy, who speaks from experience. Your choice.

Labels: Rosa Brooks; Jihadi War; Lawfare