This gravely damages the ability of the United States to fight wars successfully. The primary reason enemy combatants may be detained under the laws of war is to prevent their return to the battlefield. The depletion of enemy assets brings the war to a more rapid, more humanitarian conclusion. American courts now stand this principle on its head. Henceforth, the price of detaining an enemy operative will be the coerced disclosure of intelligence that may be more valuable to the enemy than is the combatant himself. Factor in the enormous resource drain the litigation requires, and holding prisoners becomes a net loss for the war effort. And the war effort becomes a waste of time unless you only kill rather than capture — which is al-Qaeda’s way of doing things, but not ours.
This outcome has always been the fondest dream of the anti-war Left. That is why the Democrat-dominated Congress turned a deaf ear when, after Boumediene, the Bush administration (especially Attorney General Michael Mukasey) implored lawmakers to fashion rules and procedures for combatant-detention hearings. “We don’t have to pass anything,” Rep. Jerrold Nadler told Newsweek. “Let the courts deal with it.” Democrats knew that, if they sat on their hands, the courts would do their dirty work for them. And so it has come to pass. The war is over, at least until the next 9/11 — we can make ourselves defenseless, but radical Islam is not calling off the jihad.
I beg to differ. Our courts have only made it more difficult for our government's military and intelligence agencies to wage war (leaving aside whether our government now really wants to fight that war). There is another entity (thanks to Chris M. for cluing me in on the missing link) that might rouse itself to wage war on behalf of the West if the American government cannot or will not fight.
Which is only fair, since the jihadis won't stop waging war regardless of what our courts tell us.
