February 13, 2006: Why is terrorism being treated as less of a law-enforcement issue, and more like a military one? Two recent events may help put the failure to treat terrorism as a law enforcement issue into perspective. All too often, treating terrorism as a criminal matter, to be dealt with by law enforcement agencies, leads to terrorists going back onto the street.

For instance, a German appeals court has ordered the freeing of a recent al Qaeda associate, after legal maneuvering by a lawyer put him back on the street. This was despite the fact that he was found to be a member of the Hamburg cell of the terrorist organization. An earlier verdict that found the terrorist guilty was thrown out in 2004 by a German court due to American refusals to allow questioning of al Qaeda members in custody at Guantanamo Bay. This follows on the heels of the release on parole of one of the terrorists that hijacked TWA Flight 847 in 1985, killing a U.S. Navy diver.

Much of this shift is due to the fact that past trials have compromised intelligence sources. For instance, in American courts, withholding evidence from the defense can be grounds to overturn a guilty verdict. The problem is, once the evidence is known, it is often easy to guess how it was acquired. The other problem faced is the fact that in at least one case, a lawyer representing a terrorist passed information to followers of Omar Abdel Rahman.

This is one reason why the Department of Defense has structured the military commissions as they currently stand. By having military lawyers represent captives at Guantanamo Bay, intelligence can be used without fear of compromise. Nor do they have to worry about the lawyers aiding terrorist groups. At the same time, the defendants get a trial that is as fair as any court martial, with vigorous representation by talented legal counsel.

Terrorists have long taken advantage of legal terrain that favored them. In many cases, the criminal justice system has proven inadequate in dealing with the type of terrorism from groups like al-Qaeda. The new approach, which treats the terrorists as combatants in war, will allow them to be held for the duration of the global war on terror. In essence, terrorists will be taken out of circulation, and kept in places like Guantanamo Bay until they no longer pose a threat. Amnesty International and Human Rights Watch will be upset, but those organizations do not have to deal with the consequences. - Harold C. Hutchison ([email protected])