We don't often speak of incentives in war. That's a loss, because the whole idea of, say, Geneva rights is based on the idea of providing combatants with incentives to do things that help limit the bloodiness of battle. These include wearing a uniform, carrying arms openly, not targeting civilians, and so on.McGurn then quotes Andrew McCarthy who prosecuted the blind sheik for his involvement in the first attack on the World Trade Center.
Terrorists recognize none of these things. They are best understood as associations of people plotting and carrying out war crimes, whether that means sowing fear with direct and indiscriminate attacks on marketplaces, offices and airlines—or by engaging enemy troops without distinguishing uniforms, so that the surrounding civilians essentially become used as human shields. Terrorists reject both the laws of war and the laws of American civil society. To put it another way, they reject both the authority and the obligations their legal rights imply.
None of this seems to bother Mr. Holder. Since he dropped his bombshell on Friday, much commentary has focused on the possibility that KSM might be found not guilty. That, however, is unlikely: Mr. Holder is not a fool, and everyone in the Obama administration appreciates the backlash that would occur if a KSM trial results in an acquittal. Thus, the men he will send for trial will be those against whom he has the most evidence.
The perversity here is that the overwhelming evidence of their war crimes gain them protections denied a soldier fighting in accord with the rules of war.
It even gains them more protections than their associates who attack military targets. This double standard means that the perpetrators of the USS Cole bombing are sent to military tribunals while the perpetrators of 9/11 are sent to federal court.
By going down this line, says Mr. McCarthy, Mr. Holder has invited any number of dangers: making the Manhattan courtroom a target for terrorist attack, inviting the disclosure of sensitive intelligence, opening the possibility that some al Qaeda operative will be acquitted and released within the U.S., etc.The Democrats have shown that they don't understand incentives when it comes to economics and domestic policy. Now we see that they don't understand those incentives when it comes to the war on terror either. What do they care that they have given terrorists an incentive to attack helpless civilians on our own soil rather than going up against our armed forces in the field. That is truly perverse.
Worst of all, he says, is turning the laws of war upside down: Why fight the Marines and risk getting killed yourself or locked up in Bagram forever when you can blow up American citizens on their own streets and gain the legal protections that give you a chance to go free? With this one step, Mr. Holder is giving al Qaeda a ghastly incentive: to focus more of their attacks on American civilians on American home soil.
"It is foolish to think that al Qaeda does not train to our system and look for our vulnerabilities," says Mr. McCarthy. "Remember what Khalid Sheikh Mohammed told his captors when we got him, 'I'll see you in New York with my lawyer.' It seems he knows our weaknesses better than our government does."