Who are the REAL terrorists?

The U.S. Fourth circuit handed down a significant decision recently, ruling the government could not continue detaining Ali al-Marri indefinitely without charges.

For those unfamiliar with the case, some background can be found here. The short version is al-Marri was in the U.S. legally when he was arrested in Dec. 2001.He was initially charged with using illegal documents to open bank accounts, but shortly before his trial was to open the administration declared him an unlawful combatant, and placed him under military detention, where he has languished since.

The distinction is significant. As an "unlawful combatant" his rights to a lawyer have been limited (and at times non-existent). He is able to be held indefinitely without charges or trial. Etc., etc.

Not surprisingly, left-wing writers are hailing the decision and right-wing ones are decrying it. Both Glenn Greenwald and Anonymous Liberal have excellent posts (lengthy, but well-worth reading) discussing the matter, while Andrew McCarthy of the National Review and Orin Kerr give right-leaning perspective.

It's notable McCarthy and Kerr both commit the same logical fallacy which right-wing writers have been making for years, namely equating mere accusation with guilt. McCarthy describes al-Marri as "an al-Qaeda-trained terrorist embedded here by the terror network", while the opening sentence of Kerr's also associates al-Marri with al-Qaeda: "What Should Happen to Al Qaeda Cell Members Discovered in the United States?" Of course, none of these claims ever have been actually demonstrated, we are for some reason expected to simply accept them on trust.

As Greenwald's piece explicitly makes clear, though, a major principal of our system of government is to not take such assertions on trust. Our founding fathers were well aware of the dangers of granting a government the ability to simply collect citizens off the street without needing to give a cause for doing so, and they specifically set up checks and balances to prevent such abuses. Now, more than two centuries later, individuals such as McCarthy and Kerr (and, perhaps most perniciously, John Yoo) are advocating the executive branch should have such rights, rights out founders fought to get rid of.

We hear repeatedly how this is a "different kind of war we are fighting" and how "different rules apply", and that may be so. Why is it, though, the people who always seem to spout such lines inevitably advocate "new" methods which strip rights from individuals, which make us a less free society? Couldn't our "new" method of fighting this war involve adding rights?

It's true in past wars captured prisoners did not have access to the courts. It's also true, however, in past wars it was much easier to make a clear distinction between who was and was not a combatant. As those lines blur, it may be true we need a new approach to dealing with the problem, but if so I want an approach that errs on the side of extending our rights and liberties, not curtailing them. McCarthy, Kerr, Yoo and their ilk certainly are not "terrorists", but they scare me a lot more in the long run than the al-Marri's of the world.