Terrorism and the Rule of Law
After reading this Ackerman post (HT Steve), I’m trying to figure out what it means to fight terrorism while upholding the “rule of law”. At first glance, that phrase implies (at least to me) abiding by the strictures imposed by the Constitution & Acts of Congress. Fair enough, but what does that mean? With constitutional interpretation being notoriously subject to disputation, simply citing the Constitution or federal statutes doesn’t help us very much.
Set that aside: what I’m more interested in is concrete policy prescriptions: what do Ackerman & the like mean when they espouse “the rule of law” WRT counterterrorism? ISTM they mean something like the following:
1. No torture, w/ “torture” encompassing not only waterboarding, but also other “enhanced interrogation” techniques. Anyone who performs such techniques should be prosecuted under the federal Torture Statute.
2. No “targeted killing” of an American citizen abroad (or at home, presumably), absent a criminal trial. Presumably this prohibition encompasses citizens who are effectively beyond the reach of the courts (whether via geographic remoteness, or inability to extradite, or the like).
3. Absent criminal charge(s) (and presumably trial & punishment in civilian courts), persons captured by US troops as alleged Taliban or AQ members cannot be indefinitely detained.
4. But #3 apparently doesn’t encompass legitimate acts of war committed by alleged AQ members against US troops in the field. So apparently we’re granting such persons the privilege of combatant immunity historically confined to lawful combatants; and hence, unless we can convict them of bona fide war crimes, they go free.
5. To ensure executive compliance with (at least) #3, the privilege of the writ of habeas corpus is to be made available to anyone detained by American authority. Or within any location subject to American jurisdiction; I’m not clear what the dividing line is here. The nationality and domicile/residency status of the detained individual are not relevant. Review is to be conducted by civilian federal courts.
IMHO, it is debatable whether these propositions are desirable from a policy standpoint, or necessarily mandated by the Constitution. However, that’s not what I’m (currently) interested in discussing. My question, rather, is this: do these five propositions fairly & accurately represent the position of those like Ackerman (and presumably many of my fellow co-bloggers here at Alexandria) who argue that various aspects of the Bush/Obama GWOT are inconsistent with the rule of law? I may (or may not, time permitting) attempt to critique the aforementioned propositions at a later date; but before I go about doing that, I’d like to determine whether or not I’m inadvertently setting up straw men.
 This would seem to be implied by this statement in the aforementioned Ackerman post:
[If Obama et al were committed to the rule of law, then] [t]here would be no embrace of the military commissions, and certainly no prosecution under them of someone who as a 15-year old allegedly threw a grenade that killed an American soldier – heinous, but clearly a traditional battlefield act – for a war crime.