The following is an excerpt from OpinionJournal.com’s “Best of the Web” written by the editor, James Taranto.
The Coughenour Doctrine–II
Yesterday we noted that Judge John Coughenour…had opined that terrorists acquitted in civilian court should be turned loose. It turns out he set forth this view, now known as the Coughenour Doctrine, in a November 2007 op-ed piece for the New York Times, pegged to then-President Bush’s nomination of Michael Mukasey as attorney general:
It is regrettable that so often when our courts are evaluated for their ability to handle terrorism cases, the Constitution is conceived as mere solicitude for criminals. Implicit in this misguided notion is that society’s somehow charitable view toward “ordinary” crimes of murder or rape ought not to extend to terrorists. In fact, the criminal procedure required under our Constitution reflects the reality that law enforcement is not perfect, and that questions of guilt necessarily precede questions of mercy. . . .
If confirmed, Judge Mukasey will join Michael Chertoff as another esteemed former jurist in the executive branch facing the formidable task of keeping our nation safe from terrorism. The distinction between the roles of judge and law enforcement officer should not be lost in the transition. Our courts ensure an independent process; they do not enforce the prerogatives of law enforcement. Any proposal that would blur this distinction would compromise a bedrock principle of government that has defined this country from its inception. This is a price too high to pay.
Coughenour is quite right about the importance of the distinction between the roles of the judiciary and law enforcement. But he blurs another crucial distinction: between law enforcement and warfare.
Detaining an enemy combatant to keep him off the battlefield is no more an act of punishment than killing a man on the battlefield. The purpose of both is to further a military objective–in the case of the conflict with al Qaeda, to prevent terrorists from murdering American civilians in contravention of the laws of war.
It would be improper for a judge to deny an accused terrorist the constitutional protections due any criminal defendant in his courtroom. Those protections, as Coughenour notes, are for the innocent as well as the guilty, and their diminution in the name of national security has the potential to harm us all.
That is why, if enemy combatants are to be tried for war crimes, it should not be done in civilian courts, where protecting national security endangers our constitutional rights and vice versa. As President Obama has observed, we need not choose between our security and our values. The way to avoid that choice is by keeping international terrorism out of the ordinary criminal justice system.
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