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• Wednesday, May 9, 2007 08:14 AM

  Can I yell "Fire" in a theater too?

  Sometimes you have to make a choice - and the simple one here is: "War or Police Action?"

  If it is the latter - then give Habeas Corpus to all of the guys in Guantanamo and let the Zakarias Mousawi type trial circus begin for all of these men. That should tie up the Federal Bench for a few years. Of course, there will be few trials because when the defendants start finding out who their accusers are (especially the ones overseas) they will be killed and their testimony made invalid. This is one of the reasons you never saw trials of spies during the cold war too - you risked losing your sources.

  But if it is a war - then pass a law to have some kind of military trials with enhanced evidence rules. But don't pretend that this is just a normal case for the bench.

  I agree that Habeas Corpus is the foundation of criminal law - but I think that on this one - you are in a grey area that no one really knows how best to proceed. Because no one really has figured out how to fight a non governmental organization that can do damage equivalent to the military capabilities of most 3rd world states. And add to that the suicide guided bomb factor and you really have a situation that requires a little more than the usual criminal justice system. RICO was not made to handle this situation.

  I don't think the Democrats are craven - I think they are also genuinely torn between how to handle this situation. And no right is ever absolute either - you can't yell fire in a theater and claim freedom of speech. It is nice to be for principles - but it is also not an excuse to commit suicide.

  A few days ago, you were complaining about the article where it was suggested that a President had to act decisively "above the law" in some situations. The first thing I thought of was when Lincoln did exactly that during the Civil War - by suspending Habeas Corpus AND ignoring the Supreme Court when they ruled it invalid. We are not even to that point yet (and probably won't be until at least potentially after the next election). And that act was pointed at "disloyalty" as much as rebellion.

  Sorry Glen, this is a grey patch that needs some creative thinking by BOTH sides to resolve. The problem is that it is also a political minefield - like it or not. MCA may be flawed - but your suggestion will open just as many cans of worms as MCA attempts to close.

  —Ironclad Read Ironclad's other letters
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