rule of law means there are rules
Talking Points Memo has a post that voices my thoughts on the disturbing questions raised by the Administrations'
contradictory multi-faceted approach
The rule of law is principally a matter of there being rules. What the rules are is often much less important than that there be rules and that they be followed. Thus far war on terrorism jurisprudence hasn't so much been draconian or lax as it has been a rather comical make-it-up-as-you-go-along affair.
John Walker Lindh, a US citizen, gets a straightforward civilian trial. Zacarias Moussaoui, a French citizen, gets a straightforward civilian trial. Jose Padilla, a US citizen, is held indefinitely and without counsel as an enemy combatant. Yasir Hamdi, another US citizen, is also an enemy combatant being held indefinitely, but he may get a lawyer. The folks down in Guantanamo, well, who knows?
A military tribunal, civilian trials, various sorts of detention -- cases can be made for each method of proceeding. But the essence of the rule of law is having rules in place for how you're going to deal with people before you catch them, not making them up afterwards.
I'll go a bit further: One of my concerns about the, er, varied apporach the US seems to be taking toward the suspects it nabs is the perception it leaves that suspects get a civilian trial if the authorities have evidence but that they're declared "enemy comabatants" with fewer rights if the evidence is scant (as certainly seems to be the case with Jose Padilla--is there any doubt Ashcroft jumped the gun by declaring him an imminent threat?). Of course, the catch-22 is that by declaring suspects enemy combatants with fewer rights, the government asserts it bears less of a burden, if any, to provide evidence of its claims. The problem is, this is exactly the threat to civil liberties we need to be vigilant about. Such power carries enormous potential for abuse, which is why the Framers were careful to codify rights defendants were presumed to have and place the burden of proof on the government.
While I'm on the subject, I'd like to applaud the undeniable coup of capturing alleged 9-11 conspirator Ramzi Binalshibh. If the reports are true, it seems we've nabbed a very big fish indeed.