The government seems to present us only with the choice that we kill them with drones or give them Miranda warnings and access to a 24-karat justice system designed for conventional criminals. There are better ways, including but not limited to military commissions already provided by law but shunned by the administration, or other special- purpose tribunals that can be established by Congress.
Detaining terrorist conspirators for intelligence-gathering purposes—wholly apart from whatever they may be charged with planning or doing—does not appear to be an option for this administration, certainly not if they are apprehended in this country while seeking to detonate a bomb in an airplane over Detroit or in an SUV near Times Square. Those who joined the orgy of self-congratulation after this week’s sentencing of Times Square bomber Faisal Shahzad might, when they sober up, consider what we did not find out about who sent him and who else may be on the way— because Shahzad was valued more as a defendant than as an intelligence source.
We will not always be so fortunate to have our would-be attackers detained by the military at Bagram. And even such detention may be the subject of further litigation if the Supreme Court agrees to review last spring’s appellate decision denying habeas corpus to detainees at Bagram. Yet as recently as World War II this country held tens of thousands of war prisoners here and abroad without a single one of them being allowed to require his custodians to answer to a U.S. court.