by Matt Barr

How not to deter terrorists

Foreigners warring against our Constitution and way of life should have a high hurdle to clear before they can avail themselves of anything like the same rights available to citizens. More than that, it's not only appropriate but imperative that we start treating them very differently than we would treat Americans caught committing treason.

Jose Padilla, an American, should have been promptly charged, haled before a court and tried. I don't favor the impeachment of President Bush, but the fact people who do don't make this their first argument, instead of wiretapping or the PATRIOT Act or "lying us into war" or whatever, does more to make them seem unserious than any of their other wild-eyed, floaty-haired Bush Derangement head-spinning.

I likewise don't favor the indiscriminate designation of non-citizen detainees as "enemy combatants" (not to say I think it's been indiscriminate), but the fact of the matter is that if someone is dedicated to war against the West, a public trial gives them more ammunition.

Exhibit A:

Asked whether he was to have been the fifth hijacker on the jet that crashed in southwestern Pennsylvania, Mr. Moussaoui told his lawyer, "No, I was not."

The three other jets hijacked on Sept. 11 were each seized by crews of five hijackers, while the one that went down in Pennsylvania was taken over by only four hijackers, who faced a rebellion by the doomed passengers.

"I was supposed to pilot a plane to hit the White House," Mr. Moussaoui said. He added that "one definite member" of his hijacking crew was to have been ["shoe bomber" Richard] Reid.

And I was also to take flying lessons from Wally Schirra, Allah willing!

Dutifully, this was reported as a shocker! A fifth jet! The plot was more extensive than we thought, involving more devious, intelligent, dashing jihadists than we suspected! And the two terrorists whose names our newspaper reading readers actually know, both involved! Stop the presses!

This farce is making a mockery of a formerly darn fine justice system.

Moussaoui pleaded guilty. But our Supreme Court some time ago rubbed lemon juice on the Constitution and shined a heat lamp on the Bill of Rights and decided they wouldn't pester anyone who wanted to impose the death penalty if there was a separate public trial to decide punishment. This is your "sentencing phase." None of us wants the Supreme Court pestering us, so we get a terrorist who is not at all interested in asserting his innocence -- who is in fact creepily anxious for everyone to think he's ninth-circle-of-hell guilty -- given a public spectacle at which to speechify and act all nuts. When he should have given up that opportunity by not forcing the government to prove him guilty.

One of the purposes of punishment under criminal law is deterrence. The crime we're delaing with here, though, is one perpetrators are willing to die committing, the purpose of which is at its root a public relations (propaganda, if you prefer) function: to marginalize Western culture, portraying it as inferior, excessive, soft. What do you think someone caught committing the crime is going to do at the sentencing phase of his death penalty case? Fight to stay alive? Show humility before the court?

More to the point, does this deter others? If you succeed, you'll enjoy an enviable reward in heaven. If you fail and are caught, you can poke America in the eye on their national news channels repeatedly before you're executed and enjoy an enviable reward in heaven. Gosh, I don't know. I'm having second thoughts.

I guess it's good that we've been so free of immediate terrorist threats that we can niggle about FISA court procedures and access to library records, but real, effective legal reform in response to the war on terror would start with sentencing any foreigner found (or who pleads) guilty to selected acts of terrorism to life in prison at an unpublicized (I didn't say secret!) facility about which there will be many more rumors than confirmed facts. Rumors that would make Andrew Sullivan wet himself, and would inspire Gitmo-like protests from the usual suspects.

In fact, we're led -- by accident, I promise! -- to address the question, what does deter men who want to kill themselves committing terrorist acts against the United States? It wouldn't be the threat of death. Whatever it is would possibly promise a long time in isolated limbo without prospect of trial or sentence. It might swirl with rumors of torture and abuse, and difficulty maintaining Muslim prayer and diet discipline. It might be a specially built facility outside the United States so that arguably its courts couldn't control what goes on there. Decried by Amnesty International and the international community, attacked by U.S. Senators and Congresspersons, demanded shut down by the opinion elite...

Maybe you think it's dumb luck, but maybe people who have given it a lot more thought than you or I have figured out that we didn't want 400 Moussaouis on trial after September 11 and conceived the best deterrent we could come up with on a sliver of U.S. property in Cuba. Right about now, I know which one I prefer.

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