Kerry Calling For Trying bin Laden Is “Tough”?

In a page one article in today’s Washington Post, reporters Dan Balz and Lois Romano write that

in an interview with the Associated Press [Kerry] sounded a tough line on terrorism and said that, if Osama bin Laden is captured, the terrorist leader should be put on trial for murder in U.S. courts, not before an international tribunal.

Excuse me, but calling for bin Laden to be tried in a U.S. criminal court is not taking “a tough line” on terrorism. It’s continuing to regard terrorism as a problem of law enforcement rather than war.

If that were “a tough line,” then Howard Dean was taking a tough line on terrorism last December when he said “he would not state his preference on a punishment for bin Laden before the al Qaeda leader was captured and put before a jury.”

“I’ve resisted pronouncing a sentence before guilt is found,” Dean said in the interview. “I will have this old-fashioned notion that even with people like Osama, who is very likely to be found guilty, we should do our best not to, in positions of executive power, not to prejudge jury trials.”

A “tough line” would be to insist on a trial by a military tribunal, not a civilian court, as justified with arguments like this:

According to long-established rules of war, enemies who do not wear uniforms, hide their weapons from view, and act as saboteurs are considered “illegal combatants.” Illegal combatants are not entitled to prisoner of war status under the Geneva Conventions, are not protected by the law of war, and are subject to summary execution upon detection. When captured, such infiltrators are not entitled to be tried before civilian courts, court-martial panels, or international tribunals based on the Nuremberg model, but must instead face specially organized military commissions.

There are additional arguments in favor of a military tribunal, such as this from a prominent Yale law professor:

Yale University law professor Ruth Wedgwood cited another reason for avoiding a public prosecution of Bin Laden: the potential for revealing classified information and compromising U.S. intelligence sources.

One alternative, she said, would be to try Bin Laden in a closed military tribunal, as was done with Nazi saboteurs who infiltrated the U.S. during World War II on a mission to damage war industries. The Supreme Court ruled that the government had the right to try the eight in secret as “unlawful belligerents.” All eight were convicted, and six were executed.

My point here, however, is not so much that I disagree with Kerry about where a captured bin Laden should be tried (though I do disagree) but that it’s disturbing that the WaPo’s political reporters can’t (or, I suppose, won’t) distinguish “a tough line” from a line that is decidedly un-tough.