My post last night on what to do with Al-Qaeda cell members who can't be charged in criminal court led to a fascinating and long comment thread — about 100 comments in two hours last night, plus another 120+ so far today — and I wanted to follow up and respond to some of the comments. In particular, I want to to talk about the continuum between fighting wars and fighting crime, and where I think the Al-Marri case fits on the spectrum.

  First, let's talk about some first principles. Our traditions know two basic ways of dealing with hostile actors: through war and through the criminal justice system. Within each system, there is a balance of factors at play in creating the rules. As a general matter, however, war is about self-protection: we try to disable the enemy from attacking us, and we take whatever measures are necessary to do that. There are limits, of course, conventions as to the laws of war and rules that each side adopts. But by and large the goal of self-protection by disabling future attacks takes priority.

  The modern criminal justice system is different. Incapacitation is only a small goal of that system. Rather, we are primarily interested in punishing to discourage future harmful acts and to further the ends of justice. We create law enforcement offices to investigate and prosecute the acts to make this possible, but we intentionally give them only limited powers because we don't want them to be the problem rather than the solution. We make the police jump through a lot of hoops and face punishment for breaking the rules: they have to prove their cases in particular ways, subject to strict evidentiary rules, confrontation rights, the exclusionary rule for search and seizure violations, and the like. The intuition is that limited police powers can prevent abuses while giving the police enough authority to investigate a reasonable amount of crime.

  What's interesting about these two different systems is that we can think of many cases that are somewhere along the continuum between the two poles. Consider the following persons detained by the United States in various circumstances:

1. U.S. citizen seized in Afghanistan, suspected of helping the Taliban forces in battle.
2. U.S. citizen suspected of blowing up a federal building as part of a plot to overthrow the U.S. government.
3. Suspected German soldier seized on the battlefield on D-Day in 1944.
4. Frenchman seized on the battlefield on D-day in 1944 suspected of helping the Germans.
5. Suspected crack cocaine dealer arrested in New Jersey.
6. Suspected Al Qaeda terrorist seized in U.S. after entering the U.S. to launch another 9/11.
7. Suspected Al Qaeda terrorist seized in Iraq after entering Iraq to join fight against U.S.
8. U.S. citizen who lives in Detroit and suspected to be a supporter of Al Qaeda; evidence suggests he sent $10,000 to a "charity" that is really a fun to help Al Qaeda launch more attacks in United States.
9. Egyptian citizen in the U.S. on a tourist visa seized in the U.S. on suspicion of planning attacks against a U.S. military base.
10. U.S. soldier in World War II suspected of being a double agent for the Germans.

  From the standpoint of policy, which of these cases should be handled under the "war" rules and which under the "crime" rules? And how do you tell the difference? My sense is that most people would say that there are difficult line-drawing issues here. Not everyone on this list should be dealt with under the "war" rules; not everyone on this list should be dealt with under the "crime" rules.

  Plus, we have a range of different criteria to use to determine which set of rules should apply, without any one criteria being the obvious factor that should control as a matter of policy. Some might want to focus on the seriousness of the perceived threat; others on whether there has been a formal declaration of war; others on whether a foreign country is involved; others on the individual's citizenship; others on the location or circumstances of the seizure.

  All of these are possible lines to draw, but none are widely agreed to be the most important; as a result, we have a continuum from war to crime with some cases seeming to be somewhere in the middle. (Plus, while court cases help resolve some issues at the far ends, the existing cases are not very consistent; compare Ex Parte Milligan with In re Quirin. There's not a lot of consistent guidance from them, so we have one side making Milligan arguments and the other side making Quirin arguments.)

  Now, back to my hypothetical in which we have admitted Al Qaeda terrorists who entered the U.S. to launch an attack but who can't be charged criminally. The Al-Marri case tells us that we have to deport them or set them free, a result that I described in one of my less articulate moments as "bizarre." Many commenters objected, asking, what's so bizarre about that — isn't that how the criminal justice system works? I think that's the wrong box, though; I see the case as much or more a "war" case than a "crime" case.

  Why? There are two primary reasons I see it that way. The first and most important is that members of a terrorist cell see themselves at war; they see themselves as soldiers in a holy war against the United States, and are acting accordingly. When a group sees themselves as soldiers at war trying to kill you, it seems fair that you should want to return the favor. Second, the members of the group have no connection to the United States other than as soldiers. The only reason they are here and not on the battlefield abroad is that they have chosen to attack the enemy's civilian population rather than its soldiers. They not only see themselves as soldiers; they are here as soldiers. When you put those two factors together, it seems to me that the case is as much or more a "war" case as a "crime" case. I realize it won't seem that way to everyone, but it does to me.

  Now, so far I've mostly ignored the question of how you know if someone is who they are suspected of being. "Sure," you might say, "maybe we detain an Al Qaeda cell member who enters the U.S. just to attack us — but how do we know who that is?" But here I think the Hamdi plurality had a pretty good solution — kinda made up as a matter of constitutional law, perhaps, but not bad as a pragmatic solution to the problem. Under the Due Process approach offered in Hamdi, an individual's procedural rights — what trial they get to test their detentions — is a sliding scale depending on who the person detained is, where they were detained, why, citizenship, etc. As I see it, it's a mushy balancing test that ends up largely replicating the continuum from crime to war; it's a blend of the crime model and the war model. The closer a case gets to a traditional crime category based on known and acknowledged criteria, the more Due Process rights resemble a criminal trial. On the other hand, the closer a case gets to the traditional war category based on known and acknowledged criteria, the more those rights resemble the traditional standards used in war.

  What I found odd about Al-Marri is that it seems to treat most cases of Al Qaeda terrorists here to attack us as crime cases. It seems to me like an effort to bypass the Supreme Court's sliding scale war-crime framework in Hamdi and to replace it with a regime in which all the Al-Qaeda bad guys are forced into the crime model. I don't think this is the right box, which is why I see the Al-Marri framework as odd.

  Anyway, that's my take. I realize a lot of commenters disagree, but I hope we can approach the disagreements in good faith with the understanding that we are all trying to grapple as best we can with a very difficult set of problems.