The Real Rules of Detention

Earlier this week, Sen. Rand Paul (R., Ky.) responded to my column from last weekend, which criticized (a) his endorsement of enhanced constitutional protections for alien enemy combatants (the practical effect of his call for a return to pre-9/11 counterterrorism), and (b) his proposals to bar the government from subjecting to indefinite military detention al-Qaeda operatives who happen to be American citizens. Senator Paul’s rejoinder described my first claim as a misleading “strawman,” then rehashed his arguments on behalf of American citizens who join our enemies’ war against us. I’ve already addressed the “strawman” complaint. In this column, I undertake to refute Senator Paul’s arguments against law-of-war detention for American enemy combatants.

Those arguments fare no better in the retelling than they did when the Senate decisively rejected them last week. It is true, as Senator Paul says, that “civil liberties need defenders.” Those defenders, however, are not much good if they don’t even grasp how ordinary law-enforcement works, let alone how civil liberties have historically been subordinated to wartime national-security needs — and I refer here not to faux “needs” like abusive TSA groping of patently non-suspicious Americans, but to the real danger posed by treating traitorous enemy combatants as if they were mere criminals.

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