Once we implement this "different approach" we can kiss goodbye any claims to being a society of laws, justly applied. There is no reason not to prosecute terrorists as criminals, with full access to due process, speedy trial and all the other accoutrements of freedom and fairness we once cherished. The only reason to create this "new approach" is to create a subjectively defined suppressible class that can be thown into dungeons, tortured and otherwise afflicted. The definition of "terrorist" will be simply "anyone the elite inquisitors don't like".

Are you friends with Rahm Emanuel's daddy? What's his idea for detention policy for floor sweepers, er tewowists?

You are attempting to decrease the Natural Rights of Humans in this analysis. The Nation is founded upon a written Constitution, which in main, DOES NOT grant the people their rights, they are preexistent and preeminent to it. It instead limits the lawful actions of the state. When the state acts outside of these constraints, it acts as an illegitimate tyranny.

U.S. Constitution; Article VI.; Clause 2; allows for combatants to be held under the Geneva Conventions protocols, as long as they are designated as POWS, and treated as such. The Geneva Conventions is a treaty made "under the Authority of the United States", therefore it is the "supreme Law of the Land".

US Constitution, 13th Amendment, Section 1: Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

U.S. Constitution; 5th Amendment: No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

U.S. Constitution, Amendment 6: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

1. a right to a timely trial that transpires under the public's watchful eye
2. a right to have guilt or innocence determined by a justly empaneled jury
3. a right to a complete and public presentment of the charges asserted against the defendent by the state
4. a right to cross-examine all witnesses used by the state in its prosecution
5. a right to impeach all evidence used by the state in its prosecution
6. a right to acquire witnesses and evidence for use in defense
7. a right to competent and dedicated counsel, representing the defendent

The Real Question is: Are Americans Still the Sons and Daughters of Liberty, or have they now prostrated themselves to lick at the boot of an illegitimate state, after having sold their birthright for naught but a pot of beans, believing a fantasy that they could surrender up their freedom in exchange for their security?

We, as Americans must choose. There is no escaping this. For the future of The Dreamtime America, I pray they choose wisely.

"Clearly terrorists are human beings, and as such they are entitled to some basic rights, for instance not to be tortured and not to be held indefinitely without being charged."

Several issues:

1) "alleged or suspected" terrorists have rights, both human rights and in this country anyway, legal rights.

2) actual clearly convicted terrorists have little to no expectation of humane treatment by society.

3) there is no absolute right to not be subject to torture; actual terrorists should have no expectation of humane treatment.

4) It's not at all clear that all actual terrorists are human beings even if they are all homo sapiens.

5) The majority of those kidnapped and held at Gitmo (and elsewhere) were not terrorists except by the loosest of definitions and/or guilt by association.

6) By the standards of #5, the Bush Administration has clearly been a terrorist organization operating under a legal facade and wide public and Congressional acceptance (and some largely ineffective public and Congressional protest and objection).

The way to deal with terrorists is to not become terrorists ourselves (individual or by fiat via corrupt leadership), and to build global political and moral alliances of harmony.

All the straining above depends on an impossible condition, that the persons in question are known to be terrorists. This begs the question of what is a terrorist, to begin with, and of course raises the larger question of whether we know this about a given person.

I grant that KSM should be held in jail, perhaps forever, but the majority of Guantanamo detainees are not him. Their cases are not resolved, which is the whole point.

I fail to see why a terrorist is not a criminal. I fail to see why the evidence can't be shown to the interested parties. I fail to see that is much of a surprise to any Al Qaeda wannabee that phone calls and emails can be intercepted, that insiders can be suborned. I fail to see how the FBI and city police departments can run undercover operations and then get convictions, without compromising sources, and the government can't do it here.

I do understand the real problem re KSM and a few others---they were tortured. Damn shame, isn't it? Many of us made this argument from the get-go, while Etzioni and Dershowitz raised bogus ticking-bomb scenarios to justify torture. Turns out we were right, they were wrong, there was nearly zero info gotten that was impossible to acquire through other means.

Terrorists could and must be treated as criminals.

First, some critiques:

- "that suicide bombers, as a rule, cannot be hauled into a court, brought to justice, or deterred by the threat of life in prison. What gives pause to criminals has little effect on terrorists."

As increased terms for drug offenses in the U.S. presently show, deterrence is neither a major consequence nor justification for the criminal justice system. Deterrence doesn't work with a great variety of offenses already, so there's no point in citing its inefficacy against terrrorism as a valid reason to exclude our justice system in dealing with it.

- "the threats posed by terrorists are of a much higher magnitude than those posed by criminals, curbing terrorism requires a different approach than that of law enforcement."

The approach to dealing with something isn't determined by the magnitude of risk. Magnitude determines priority, not methodology. The approach should be determined by the efficacy of said approach. Historically speaking, police methodology combined with extensive international cooperation has captured more terrorists than all the armies combined. As a simple but dramatic example, the Third Regiment didn't capture Carlos the Jackal, InterPol did.

- "Terrorists are surely entitled to basic human rights, as are all human beings. However, we cannot allow them full access to all the evidence against them, which criminals are entitled to, without creating unacceptable security risks."

While I can think of imaginary examples where this might be a problem, due to the nature of the problem itself I have never heard of an instance where it has been demonstrated to be valid. It's possible that this might simply be false in all cases - that the risk is perfectly acceptable. Can you prove otherwise? No you can't, because that would involve citing an example of such evidence, which we don't have. So I'm disinclined to give this point a lot of credence.

Our criminal justice system, like the first amendment and democracy in general are designed to subject our society to a certain amount of risk; we established them in blind faith that such risk proved to be acceptable and justified, and it did. To adhere to the existing criminal justice system is no new leap of faith, but merely a reassertion of such already established principles. To do otherwise is to abandon them.

Next, a general critique:

One problem I have with the "three categories" approach is - how does one distinguish between a "criminal" and a "terrorist?" I can tell the difference between a soldier and a civilian quite clearly, and define it in non-ambiguous terms - as indeed, the Geneva Convention has done. But any distinction drawn up to define a terrorist as opposed to a criminal would necessarily be politicized, if only because whoever was supposed to make the call regarding which category a given person is would be within neither jurisdiction. If you're a criminal you get certain rights, if you're a terrorist you don't - but if it hasn't been determined which you are yet, then you don't have them.

Therefore, creating a "terrorist" category puts all criminals in the de facto status of terrorists from the start. It effectively elevates all criminals to terrorists.

As a hypothetical example, consider the status of someone robbing a convenience store at the same time that a Mumbai-style attack was taking place across town. Is the robber a terrorist or a criminal? Who decides? On what basis? How could they be treated until that decision is made? What are the consequences of that decision to the terrorist/criminal, and to the Constitution?

Finally, a positive argument:

The point of using regular courts to try terrorists is to establish and support the legitimacy of their detention and punishment. This highlights the difference between governments and non-governmental groups - one makes legitimate decisions in the name of the people, the other does not. To use any other system than the single one established by our Constitution to make legitimate rulings on whether someone deserves to be detained in the first place, much less punished for alleged crimes, puts us on the same moral level as the terrorists themselves, in a very real sense.

Conversely, calling terrorists anything other than mere criminals grants their movement increased legitimacy in turn. They claim to be warriors, at war with us. Within the context of that claim, they attempt to legitimize their acts as acts of war. In this thinking, civilian casualties are collateral damage. However, they are not at war, because they represent no sovereign representative government of any populace anywhere. And only a sovereign government may declare war. Nothing deflates such a false sense of importance more effectively than treating them as the common criminals that they are. However, by failing to do so, we essentially concede this point.

In short, treating them through any method other than due process for criminals reduces our legitimacy and increases theirs.

This is important, because the real way to stop terrorism is to drain it of soft support in the areas from which it is based. Die-hard terrorists don't have day jobs; they rely on smuggling networks, safe houses, donations, and blind information transfers managed by hundreds of other people. For each terrorist who's willing to die for his cause, there are scores of others who are willing to lend a couch for a weekend, or pass on a package without opening it, or donate a few hundred bucks to a "widow's fund." Without them, no terrorist network can act effectively.

Those people in the "soft support" populations make the decision to aid or avoid any cause based on their impression of the relative morality and legitimacy of our side vs. theirs. If we seem like good guys and the terrorists seem like bad guys, they will ultimately be ostracized and essentially become unemployed. Their own population has the power to hand any terrorist network its pink slip, by cutting off recruiting and support.

As previous terrorist situations demonstrate clearly, killing and detaining any number of terrorists, no matter how strenuous your operations, no matter how severe your methods, does nothing to eliminate the threat. Every "martyr" creates others to fill in their place; it's like trying to behead a Hydra. But giving their supporting populace viable political alternatives does work, and actually has worked in real life situations. The situation in Northern Ireland comes to mind as one example, and as one worth studying before one goes off writing prescriptions for global terrorism as a concept.

A caveat is necessary with this method: facing unemployment, die-hard terrorists will typically rapidly increase their activities for a time in order to try to get both sides of the general conflict to drop any peaceful approach that's been started. That's not becuase the "other side" is dealing dirty, but rather because the die-hard terrorists want to start the fight up again. They are completely invested in continuing the conflict, because they are terrorists first.

The answer to this is to treat them as nothing more than petty criminals, and to politically ignore their acts. Make it a huge priority, yes. But that in itself does nothing to increase their importance.

Changing our principles, our policies, our methods or even our politics in the face of terrorism constitutes submission to terrorism.

I'm not sure where to begin with Etzioni's rambling and feeble-minded argument. Let's just take one example. Etzioni says:

One major reason they [so-called terrorists] cannot be treated as criminals is that suicide bombers, as a rule, cannot be hauled into a court, brought to justice, or deterred by the threat of life in prison. What gives pause to criminals has little effect on terrorists. They are gone once they have carried out their mission.

Okay, there are two possibilities here aren't there? The suicide bomber has succeeded and therefore is dead. So what we do with him is sort of a moot point. I'd suggest disposing of the body in an environmentally safe way, before it begins to rot and stink.

Second possibility is that the suicide bomber has failed in his mission. Here's a man (or woman) who has placed his mission above all else--even his life. And he's failed. What could be greater punishment than convicting him of the crime of attempted mass murder and locking him away so he can never complete his mission and is therefore doomed eternally to failure? Even if that isn't a sufficient punishment, it at least accomplishes our primary purpose of keeping the lunatic from hurting anyone.

But let's assume Etzioni's main point is that criminal prosecution is all about deterrance. Well, maybe you could amend the Constitution to allow the most "cruel and unusual" punishments and come up with a punishment so painful and horrendous that it would strike fear even into the hearts of suicide bombers. But people already frenzied enough to seek to kill themselves while killing others are probably not thinking rationally enough to consider the possibility that they might survive and suffer any punishment. And even if they do consider the possibility of survival, then such consideration is likely only to inspire them to double their efforts to ensure they succeed at their goal and die in the bombing. In fact, the contemplation of possible pain may only increase the urgency--and even attractiveness--of their mission. The extra "courage" it takes to go forward with their mission knowing full well that failure would be extremely painful only increases the heroism of their matyrdom. Now, they are not only sacrificing their lives, they are also risking tremendous bodily and psychological trauma. The sacrifice and courage are immense. What great glory therefore awaits these brave martyrs in the afterlife?

The sober reality is that convicting and locking up suicide bombers is the best thing we can do--and really the only thing. Etzioni offers no alternative. He can't. He's just babbling.

Once again, Etzioni offers up his thesis and the commenters here shred it, showing it to be possibly immoral, definitely irrational and certainly not a map towards making policy and once again, Etzioni is nowhere to be found with a response.

Is it because he doesn't have a response?

At least he could show up here and admit he's wrong, then.

Is it because he doesn't like people who use Internet handles? He loves to say that. But he also once admitted, in TPM Cafe's previous incarnation that there are myriad reasons why somebody posting political thoughts on line might use an online identity.

The sad fact is that it's because Etzioni thinks he's better than us. He doesn't think he has to engage our arguments. His Irrelevancy has spoken and that's all that matters to him.